Citation Nr: 1753499 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-10 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for an acquired psychiatric disability, to include insomnia and depression. 3. Entitlement to service connection for headaches. 4. Entitlement to an increased disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine prior to August 20, 2009 and after October 31, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1960 to March 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the St. Petersburg RO in December 2011. A transcript of that hearing is associated with the claims file. This matter was previously before the Board and was remanded in September 2016 for further development and in order to afford the Veteran VA examinations. The appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The most probative evidence of record indicates the Veteran's hypertension did not manifest during service and is not causally related to service. 2. Resolving any doubt in favor of the Veteran, his depression is related to his service-connected degenerative joint disease and degenerative disc disease of the lumbar spine. 3. The most probative evidence of record indicates the Veteran's headache condition did not manifest during service and is not causally related to service. 4. At all relevant times, the Veteran's degenerative disc disease and degenerative joint disease of the lumbar spine disability is manifested by forward flexion to 45 degrees without evidence of ankylosis or incapacitating episodes involving bed rest prescribed by a physician; there is no additional functional loss due to pain, weakness, excess fatigability, incoordination, swelling or atrophy. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for depression are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a headache condition are not met. 38 U.S.C.A. §§ 1110 , 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Codes 5237, 5242, 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. § 3.159 (2017). As an initial matter, the Board notes that VA's duty to notify was satisfied by a letter sent to the Veteran in December 2008. See id.; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (c)(4). In this case, service treatment records, post-service VA outpatient records, private treatment records and lay statements have been associated with the record and have been reviewed by both the AOJ and the Board in connection with the claims herein decided. The Board finds that VA has satisfied its duty to obtain available Federal records with regard to the issues herein decided. See 38 C.F.R. § 3.159 (c)(2). The Veteran was afforded VA examinations in June 2009, June 2012, October 2014 and February 2017. The VA examiners reviewed the Veteran's claims, his electronic records, and conducted in-person interviews. These examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). During the December 2011 Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claims. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. For the foregoing reasons, the Board finds that VA has satisfied its duty to notify and its duty to assist. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159 (b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303 (b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. § 1112 (West 2015); 38 C.F.R. §§ 3.307, 3.309 (2016). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d) (2016). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2016). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310 (b) (2016); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Service connection for hypertension may be established on a presumptive basis by showing that hypertension manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). Where hypertension manifests to a compensable degree within one year following separation from service, it is presumed to have had its onset in service even though there is no evidence of hypertension during service. 38 C.F.R. § 3.307 (a) (2017). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) (2017). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). 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), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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 that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104 (a). Moreover, the 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); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b) (West 2015). Hypertension The Veteran contends that he is entitled to service connection for hypertension including due to his in-service exposure to jet fuel fumes. The service treatment records (STR) do not show any complaints of high blood pressure or diagnosis or treatment for hypertension. His blood pressure reading during his enlistment examination in September 1960 was 142/86. At the August 1980 separation examination, his blood pressure reading was 124/88. A June 1981 Report of Medical Examination for Disability Evaluation noted the Veteran's blood pressure as 130/90. The Veteran reported during his December 2011 hearing that he was diagnosed with hypertension approximately one year after service. Most recently, the Veteran was afforded a VA examination in February 2017. The examiner diagnosed the Veteran with hypertension, but determined that his hypertension was less likely than not caused by service or is otherwise related to service to include his exposure to jet fuel. The examiner gave the rationale that there is no medical evidence of hypertension diagnosis or treatment for hypertension during the Veteran's service or within any close proximity to service. The first recorded showing for prescription blood pressure medication is in January 1999. Although the Veteran had a blood pressure reading of 130/90 in June 1981, the examiner stated that hypertension cannot be made on one isolated blood pressure reading and is made on elevated blood pressure consistently over time. There is no evidence reflecting such a trend. Based upon the cumulative record, the Board concludes that hypertension was first manifest years post service and that there is no nexus to service or a service-connected disability. Here the February 2017 VA examiner's opinion is the most probative evidence of record. It is supported by a rationale and is consistent with the medical evidence of record. The most persuasive evidence on whether there exists as nexus between the Veteran's hypertension and active service, and any service-connected disability, weighs against the claim. Here, the evidence does not show that it is at least a likely as not that hypertension is related to active service or that it was caused or aggravated by a service connected disability. The probative value of the Veteran's general assertions are outweighed by the probative value of the specific, reasoned opinion of the physician who performed the February 2017 VA examination. As the preponderance of the evidence is against the claim, service connection for hypertension is denied. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v, Derwinksi, 1 Vet. App. 49 (1990). Acquired Psychiatric Disorder The Veteran claims that he is entitled to service connect for an acquired psychiatric disorder, to include insomnia and depression. The Veteran's STRs are negative for any reports or diagnoses of an acquired psychiatric disorder, to include a depressive disorder. In addition, the Veteran was noted as psychiatrically normal in his August 1980 retirement examination. However, a December 2003 VA treatment record indicates a diagnosis of depression. This diagnosis was confirmed by later treatment records including a November 2010 Psychiatric Consult, which diagnosed the veteran with depressive disorder and a February 2011 VA treatment record which diagnosed the Veteran with major depressive disorder. The Veteran has been afforded numerous VA examinations in relation to his claim for an acquired psychiatric disorder. During a June 2012 VA mental disorder examination, the examiner determined that the Veteran did not have nor had he ever been diagnosed with a mental disorder. She reasoned that the Veteran's symptoms were sporadic, mild and did not meet the diagnostic criteria for an Axis I diagnosis. There was no objective evidence of a functional impairment socially, occupational, academically or in his activities of daily living based on a mental disorder. The examiner cited the fact that the Veteran had a successful 21 year military career, he was able to maintain a job for over 19 years after his retirement from the military, he was in a stable marriage, he felt close to his children and enjoyed leisure activities. An October 2014 VA examination determined that the Veteran did not have a diagnosed mental disorder. After an in person examination and a review of the Veteran's claims file, the examiner reasoned that the Veteran did not meet the criteria for an acquired psychiatric disorder because he did not report experiencing any symptoms indicative of a mental disorder and he did not report that his sleep difficulties cause significant impairment in functioning. The Veteran was afforded another VA examination in October 2016 and was diagnosed with major depressive disorder, recurrent due to chronic pain disorder. The examiner concluded that the Veteran's depressive disorder due to chronic pain syndrome was more likely than not (more than a 50% probability) a continuation of, related to, secondary to or aggravated by his service connected degenerative disc disease, lumbar spine, residuals, ganglion, scar second metacarpal. In February 2017 the Veteran was afforded an additional VA mental disorder examination. However, the examiner was unable to determine whether the Veteran met the criteria for a mental disorder in the past without mere speculation. He opined that although the October 2016 VA examiner found that the Veteran met the criteria for major depressive disorder, she did not appear to have access to the records reviewed by him. Contrary to the February 2017 examiner's findings, the October 2016 examiner cited medical records, recent mental health evaluations and chronic pain assessments associated with the claims file. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Based on the evidence of record, and resolving all doubt in his favor, the Board finds that service connection for depression, secondary to the Veteran's service-connected degenerative disc disease and degenerative joint disease, is warranted. Headaches The Veteran contends that he is entitled to service connection for a headache disorder, including due to his exposure to jet fuel fumes. During his August 1980 retirement examination the Veteran reported frequent or severe headaches and dizziness. They had occurred for the prior six months. The Veteran's VA treatment records show that in November 2010 he reported chronic headaches. He was also afforded a VA examination for his claimed headache disability in June 2012 and was diagnosed with tension type headaches. The VA examiner concluded that the Veteran's tension type headaches were less likely than not caused by his headaches and dizziness during service. He reasoned that based upon a review of the medical records, medical literature and his clinical experience, the only mention of headaches during service was on separation. Following service there is no evidence of a chronic headache condition and the claims file reflects the Veteran first mentioning headaches in November 2010. Therefore, a chronic headache condition following service cannot be established as originating in service and a connection cannot be made. The Veteran underwent a second VA examination for his headache claims in October 2014. The previous diagnosis of tension type headaches was confirmed. Following an in-person examination and a review of the Veteran's claims file, the examiner determined that the Veteran's current headaches are not caused by or the result of military service to include his in-service exposure to jet engine fuel. She reasoned that there is no objective evidence that the Veteran's claimed headache condition had its onset in military service or shortly after discharge. According to the International Classification of Headache Disorders, tension headaches are a primary headache disorder and thus a nexus cannot be made to military service to include his in-service exposure to jet engine fuel. In February 2017 the Veteran was afforded a third VA examination and he was diagnosed with tension headaches. The examiner concluded that it was less likely than not that the Veteran's tension headaches began in service, was caused by service, or is otherwise etiologically related to his military service, to include his in-service symptoms of headaches and his in-service exposure to jet engine fuel. Based upon a review of the available medical records, medical literature and clinical experience, there is no objective evidence that the Veteran's claimed headache condition had its onset in military service or shortly after discharge. A chronic headache condition following service cannot be established as originating in service. Based upon the cumulative record, the Board concludes that tension headaches were first manifest years post service and that there is no nexus to service or a service-connected disability. Here the February 2017 VA examiner's opinion is the most probative evidence of record. It is supported by a rationale and is consistent with the medical evidence of record. The most persuasive evidence on whether there exists as nexus between the Veteran's headache condition and active service, and any service-connected disability, weighs against the claim. Here, the evidence does not show that it is at least a likely as not that hypertension is related to active service or that it was caused or aggravated by a service connected disability. The probative value of the Veteran's general assertions are outweighed by the probative value of the specific, reasoned opinion of the physician who performed the February 2017 VA examination. As the preponderance of the evidence is against the claim, service connection for headaches is denied. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v, Derwinksi, 1 Vet. App. 49 (1990). Disability Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another DC. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Increased Rating for the Lumbar Spine Lumbosacral spine disabilities are rated under the General Formula for Diseases and Injuries of the Spine (General Formula), Diagnostic Code 5242, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Intervertebral Disc Syndrome), Diagnostic Code 5243, whichever method results in the higher rating. Under the General Formula, in evaluating disabilities of the spine, the criteria is for application 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 Formula, the criteria for a 20 percent rating are forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a 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. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Also any objective neurological abnormality may be separately rated under the appropriate Diagnostic Code. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. As the Veteran has been diagnosed with degenerative disc disease, the Veteran may also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes if it results in a rating higher than under the General Formula. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for a 20 percent rating are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The criteria for the rating of 40 percent are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The criteria for a rating of 60 percent are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. In a June 2009 VA examination, the Veteran reported fatigue, stiffness, weakness, spasms and pain in mid lumbar area. Onset of pain occurred with walking, sitting and lying on his stomach. It was described as moderate to severe pain lasting minutes on a daily basis. He experienced severe flare ups two to three times per week which last 15 to 20 minutes and are alleviated by sitting. The Veteran's gait was normal. There was no gibbous, kyphosis, list, lumbar flattening, lumbar lordosis, cervical spine ankylosis or thoracolumbar spine ankylosis found. Range of motion testing resulted in thoraco-lumber spine flexion of 0 to 50 degrees, extension of 0 to 30 degrees, left lateral flexion of 0 to 30 degrees, left lateral rotation of 0 to 30 degrees, right lateral flexions of 0 to 30 degrees, right lateral rotation of 0 to 30 degrees with objective evidence of pain on range of motion. Pain began at 25 degrees and ended at 50 degrees. During his December 2011 Board hearing, the Veteran testified that his low back pain was starting to radiate down into his legs and the top of his feet. He also described experiencing numbness. February 2011 private treatment records showed that the Veteran could stand in anatomical posture and walk with a normal gait. No reflex asymmetry or pathologic reflexes were detected. In August 2009 the Veteran underwent surgery with a bilateral hemilaminectomy at L3-4 and L4-5. The Veteran reported during his June 2012 VA examination that the surgery resolved his radicular symptoms. The Veteran was afforded a VA examination in June 2012. He was diagnosed with degenerative disc disease of the lumbosacral spine and degenerative joint disease of the lumbosacral spine. He reported excruciating pain while walking, which was relieved by sitting. No flare-ups were noted. Initial range of motion found forward flexion of 45 degrees with objective evidence of pain at 40 degrees, extension to 15 degrees with objective evidence of pain at 15 degrees, right lateral flexion to 20 degrees with objective evidence of pain at 15 degrees, left lateral flexion to 20 degrees with objective evidence of pain at 15 degrees, right lateral rotation to 20 degrees with objective evidence of pain at 20 degrees, left lateral rotation to 20 degrees with objective evidence of pain at 20 degrees. The Veteran performed repetitive use testing with forward flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. The Veteran had additional limitation in range of motion and functional loss and/or functional impairment of the thoracolumbar spine after repetitive use testing including less movement than normal, pain on movement and disturbance of locomotion. There was evidence of guarding or muscle spasms in the thoracolumbar spine, but it did not result in abnormal gait or spinal contour. All muscle strength testing was normal. Reflexes and sensory exams were all normal. It was noted that the Veteran cannot bend and lift and cannot walk for any period of time. The examiner also found that the Veteran had intervertebral disc syndrome of the thoracolumbar spine, but it did not result in any incapacitating episodes of the past 12 months. There was also no radicular pain noted. In October 2014 the Veteran underwent a VA examination and was diagnosed with degenerative arthritis of the spine, degenerative joint disease and degenerative disc disease of the lumbar spine. The Veteran reported daily lower back pain, no flare-ups, difficulty walking and prolonged standing. Range of motion testing showed forward flexion to greater than 75 degrees with objective evidence of pain at 60 degrees, extension to 30 degrees or great with no objective evidence of painful motion, right lateral flexion to 30 degrees or greater with no objective evidence of painful motion, left lateral flexion to 30 degrees or greater with no objective evidence of painful motion, right lateral rotation to 30 degrees or greater with not objective evidence of painful motion and left lateral rotation to 30 degrees or greater with no objective evidence of painful motion. Repetitive use testing resulted in forward flexion to 85 degrees, extension to 30 degrees or greater, left lateral flexion to 30 degrees or greater, right lateral rotation to 30 degrees or greater, left lateral rotation to 30 degrees or greater. The Veteran experienced functional loss including less movement than normal and pain on movement. No pain or muscle spasms were reported; however, the Veteran did have guarding of thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal. There was no ankylosis of the spine, radiculopathy, neurological abnormalities or intervertebral disc syndrome and incapacitating episodes. The Veteran did have guarding of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. In October 2017 the Veteran underwent a VA examination and was diagnosed with degenerative joint disease and degenerative disc disease of the lumbar spine. The Veteran reported lower back pain, no flare-ups, difficulty walking and prolonged standing. Range of motion testing showed forward flexion to 75 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. Pain was noted on forward flexion, extension, right later flexion, left lateral flexion, right lateral rotation and left lateral rotation. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing but it did not result in additional loss of function or range of motion. No guarding or muscle spasms were reported. The examiner noted that there was no ankylosis of the spine and the Veteran did not suffer from intervertebral disc syndrome and episodes requiring bed rest. Furthermore, the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and did not have any other neurologic abnormalities or findings related to the thoracolumbar spine condition. It was noted that the Veteran ambulates with a mildly flexed forward posture, worse upon initially arising from chair. Activities which involve prolonged standing/sitting with erect posture - without occasional breaks - are most likely to result in increased lower back discomfort. As the General Rating Formula for the spine, there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis of the entire thoracolumbar spine. The foregoing evidence demonstrates that, at all relevant times, the Veteran's forward flexion has been, at worst, 45 degrees. 45 degrees of flexion does not more nearly approximate 30 degrees, and therefore on the basis of the schedular criteria, the evidence establishes that the disability would not warrant the next higher rating of 40 percent, nor do the findings more nearly approximate a disability picture warranting a 40 percent rating. The Board also finds that there is no additional disability due to functional loss due to pain under 38 C.F.R. § 4.40 or additional disability due to functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 that would more nearly approximate the disability picture of favorable ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). In addition, a review of the record shows that there is no evidence of incapacitating episodes prescribed by a physician and treatment by a physician for any duration. Finally, as noted, objective neurological abnormalities have not been diagnosed. Pain was noted to be present, but there was no significant change upon repetition. Functional loss due to pain is rated at the same level where functional loss is impeded. Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). As clinical examination revealed pain on motion, the rating in fact compensates the Veteran for his functional loss due to his lumbar spine pain. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). There is no objective evidence to demonstrate that pain on use or during flare ups results in additional functional limitation to the extent that under Diagnostic Code 5242 the disability symptoms and manifestations have been shown to more nearly approximate the disability picture of favorable ankylosis of the thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). For the reasons explained above, the preponderance of the evidence is against a rating greater than 20 percent for the service connected lumbar spine disability and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107 (b). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for depression is granted. Entitlement to service connection for headaches is denied. Entitlement to an increased disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine prior to August 20, 2009 and after October 31, 2009 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs