Citation Nr: 1754625 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 12-35 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected depressive disorder. 2. Entitlement to an evaluation in excess of 20 percent for service-connected chronic low back strain prior to May 17, 2016. 3. Entitlement to an evaluation in excess of 40 percent for service-connected degenerative arthritis of the spine, intervertebral disc syndrome, and spinal stenosis from May 17, 2016 onward. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to July 1981. He also had prior service with the Army National Guard and Army Reserve, include a period of active duty for training between August 1964 to March 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a videoconference hearing in December 2015. At the hearing, the record was held open for 60 days in order to provide the Veteran with an opportunity to submit additional evidence. The Veteran subsequently submitted additional medical evidence in January 2016 that was accompanied by a waiver of initial RO consideration. A transcript of the hearing is of record. The RO granted a rating of 40 percent for the Veteran's low back disability in a July 2016 rating decision. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit had not yet been awarded, the claim remained still in controversy and on appeal. Id. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. FINDINGS OF FACT 1. Prior to May 17, 2016, depressive disorder was manifested by difficulty establishing and maintaining relationships and occupational and social impairment with reduced reliability and productivity due to symptoms such as depression and suicidal ideations, but no deficiencies in most areas or an inability to establish and maintain effective relationships. 2. On and after May 17, 2016, depressive disorder has been manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not reduced reliability and productivity, due to such symptoms as depression. 3. Prior to May 17, 2016, the Veteran's lumbar spine disability is manifested by forward flexion to 45 degrees at its worst, but not flexion limited to 30 degrees or less, ankylosis of the lumbar spine, or incapacitating episodes. 4. From May 17, 2016 onward, the Veteran's lumbar spine disability is not productive of unfavorable ankylosis or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, but no higher, prior to May 17, 2016 for depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). 2. On and after May 17, 2016, the criteria for an initial evaluation in excess of 30 percent for depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). 3. The criteria for a rating in excess of 20 percent for a lumbar spine disability prior to May 17, 2016 have not been met. 38 U.S.C.A. § 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 38 C.F.R. 3.159, 3.321, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5237 (2017). 4. From May 17, 2016 onward, the criteria for an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in December 2015. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. Increased Ratings 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 (2017). 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 (2017). 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). 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 (2017). 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). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, 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. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Depressive Disorder The Board notes that the Veteran filed a claim for service connection for depressive disorder in July 2009. In a July 2010 rating decision he was granted service connection and assigned a 30 percent rating from his date of claim. The Veteran filed a timely notice of disagreement to the issue and perfected an appeal. Major depressive disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). A 30 percent rating is assigned when a psychiatric disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when a veteran's psychiatric disorder causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran's psychiatric disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in October 2016, and therefore the claim is governed by DSM-V. The Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). In this case, however, the Veteran's claim is governed by DSM-IV and DSM-IV was in use at the time the medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130. Throughout 2007 and 2008 the Veteran sought private medical treatment. His depression was monitored throughout such and records contain notes of the Veteran's general depression and loss of pleasure, but without homicidal ideations or suicidal plan or intent. In general, there was anhedonia, social withdrawal, and loss of interest in friends. He was on medication throughout this time period. In January 2010 the Veteran was afforded a VA examination. The Veteran reported no prior mental health treatment or counseling, but that he had been taking Celexa for his depression for approximately a year. He reported feelings of hopelessness and worthlessness, suicidal ideation, and episodes of crying. He stated that he did not act on such ideations because he tried to think of his daughter. He did not indicate any intention of self harm at the January 2010 examination. The Veteran reported his personal history, including having been married three times including the marriage to his current wife of 10 years. He had not seen his son since his second divorce. He reported that after his discharge he worked as a mailman for approximately 16 years. He did not report any work related difficulties due to his mental health functioning. The examiner noted that the Veteran was able to manage his own finances. He reported that he spent most of his days doing odd jobs and that he enjoyed camping and woodworking alone. He further noted that social activities were limited and he reported that he did not have any close friends. The examiner reported that he was retired. Upon examination, the examiner found that the Veteran was alert, responsive and cooperative. He was neat, clean, and casual. His judgement was adequate and his insight was fair. His memory was satisfactory, and he was fully oriented with normal speech, and adequate thought process production. The continuity of thought was goal-directed and relevant. The examiner found there were no delusions, and the Veteran's abstract ability and concentration were both satisfactory. There was a depressed mood and a restricted range of affect. The Veteran was diagnosed with depressive disorder. The examiner assigned the Veteran a GAF score of 60. The examiner concluded that the Veteran's mental health condition would not preclude employment and the examiner found the severity to be moderate. In May 2016 the Veteran was afforded another VA examination. The Veteran described having a good relationship with his wife of 17 years. He stated that some of his typical chores around the property included caring for various animals, running errands into town for his step daughter and working on his future home. He denied having any major problems completing tasks around the home and in his free time the Veteran described how he hoped to do more traveling around the motor home and how he liked to go fishing. He indicated that he was capable of getting along with people who he was close to and maintaining friendships. However, he described how he was "not very good" in getting along with people he did not know; but he was able to interact with strangers for brief periods of time. The Veteran reported he worked for the postal service as a letter carrier for approximately 16 or 17 years and that he quit working because he felt that he was going to hurt someone as he was frequently frustrated with managers and found working with them to be stressful. After leaving the postal service, he reported doing custom woodworking and found that job to be more enjoyable. The Veteran retired at 62 years old. The Veteran stated he was prescribed medication for his mood for many years, and while he stated his belief that it was unhelpful, he continues to take it, because "my wife makes sure I take it." The Veteran denied ever participating in any kind of mental health counseling. The Veteran described his concentration as fair, noting he does better on tasks when he is alone and uninterrupted by others. He indicated that he is capable of learning new things, and described being interested in new activities. When asked about symptoms specific to his mood, the Veteran described how he likes living in Oklahoma more than in Phoenix, and is more easily relaxed around his family and the animals on the farm. While he reported he is easily irritated, he described being irritated by things that annoy most people, such as dealing with self-centered people, and young people whom he perceives as being disrespectful. He denied being easily startled, and did not characterize himself as someone who is often worried or anxious. The Veteran described having some positive emotions recently, laughing and joking with his step-daughter's husband, while cooking out one evening. He reported keeping in contact with his daughter from a prior marriage, but no his son, who he had not spoken to in 25 years. He indicated that he feels close to some other people in his life, including a good friend in Phoenix. Throughout the course of the interview, the Veteran demonstrated grossly logical thinking, without evidence of delusional beliefs or hallucinatory experiences. He demonstrated generally appropriate affect, congruent to the content of the conversation. The examiner noted that the Veteran did not represent a significant change in functioning from his prior January 2010 examination. Upon examination, the examiner noted that the Veteran presented to his interview in casual attire with good hygiene. The examiner noted a depressed mood, but found that the Veteran was capable of managing his financial affairs. The examiner found that the Veteran's occupational and social impairment was due to mild and transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress or, the Veteran's symptoms are controlled by medication. After a thorough review of the claims file, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's PTSD more nearly approximates a 50 percent evaluation prior to May 17, 2016. There was difficulty in establishing and maintaining effective relationships, as noted by his not speaking to his son and having no close friends. He also reported suicidal ideations. He was depressed. The evidence does not, however, more nearly approximate a 70 percent evaluation prior to May 17, 2016. The evidence does not show an inability to establish and maintain any effective relationships. The Veteran remained married and had a good relationship. Additionally, the Veteran was neat, clean, and casual with adequate judgement, insight, and memory. There were no issues with speech, or thinking, and no delusions. Thus, there were no deficiencies in most areas. Accordingly, the Veteran did not report, and the evidence does not show, symptoms that rise to the severity, severity, frequency, and duration as those for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 116-17. Accordingly, the Board finds that evaluation of 50 percent, but no more, is assigned prior to May 17, 2016. However, the Board finds that on and after May 17, 2016, the Veteran's symptoms do not warrant a rating in excess of 30 percent. Although there remains some difficulty in establishing and maintaining effective relationships, the Veteran remained married with a good relationship with his wife, reported a good friend with whom he confided in Phoenix, and reported having positive with his step-daughter's husband. He was able to relax more now that he lived in Oklahoma. This shows somewhat improved social functioning. Furthermore, he described more activities he was engage in, and future hobbies he was eager to engage in. The Veteran himself stated that he was capable of getting along with people who he was close to and maintaining friendships. He did indicate that he was not very good at getting along with people he did not know; but he was able to interact with strangers for brief periods of time. The examiner found that the Veteran's only symptom was depressed mood. The Veteran demonstrated logical thinking and an appropriate affect. Notably, the examiner found that the Veteran's occupational and social impairment was due to mild and transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress or, the Veteran's symptoms are controlled by medication, which correlates to a 30 percent evaluation. Accordingly, the Veteran did not report, and the evidence does not show, symptoms that rise to the severity, severity, frequency, and duration as those for a 50 percent evaluation. See Vazquez-Claudio, 713 F.3d at 116-17. Accordingly, the Board finds that evaluation of 30 percent, but no more, is warranted on and after to May 17, 2016. Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Lumbar Spine Disability The Veteran was granted service connection for his low back disability in an October 1981 rating decision and assigned a 20 percent rating, rated as chronic low back strain. Thereafter, in April 2009 the Veteran filed a claim for an increased rating of his low back disability and the RO denied such in a July 2010 rating decision. The Veteran filed a notice of disagreement to the rating decision and perfected an appeal as to this issue. In July 2016 the RO increased the Veteran's rating for his low back to 40 percent and rated such as degenerative arthritis of the spine with IVDS and spinal stenosis. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected back disability. Falzone v. Brown, 8 Vet. App. 398 (1995). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237. The rating criteria, in pertinent part, provide a 20 percent rating is assigned for 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 warranted for when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; when or favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffens, or aching in the area of the spine affected by residuals of injury or disease). 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. 38 C.F.R. § 4.71a, Note (2). Associated objective neurological abnormalities, including, but no limited to, bowel or bladder impairment, are rated separate under appropriate diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1). In a March 2012 rating decision, service connection was granted for right and left lower extremity radiculopathy. The Veteran did not appeal either the effective date or the percentage assigned to these disabilities. Thus, these disabilities and symptoms are not considered herein. Other neurological impairment, however, will be considered. Intervertebral Disc Syndrome is rated under Diagnostic Code 5243 and is evaluated under either 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 under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under Diagnostic Code 5243, a 20 percent rating is assigned the evidence shows 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 provided when the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is warranted when the evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA purposes, an incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran received intermittent treatment for his back disability at the Internal Medicine Clinic beginning in 2008. During this treatment the Veteran reported experiencing chronic back pain and his imaging showed degenerative arthritis. The Veteran received private treatment for his low back at the Premier Pain Institute in 2009 and 2010. During such treatment the Veteran reported constant low back pain, especially in the right lumbar region and the right gluteal region. He noted that his pain had recently increased and had become aching. He further noted that sitting, walking, standing, bending and lying down exacerbated his pain. Upon physical examination the physician found that there was a decreased range of lumbar spinal mobility. In January 2010 the Veteran was afforded a VA examination. The Veteran reported continuous pain but without any significant flares. He noted that this had an impact on his occupation since separation from service. He reported that he was not using any assistive devices, but that he had used a TENS unit intermittently for his recurring back and nerve pain but that such did not help and he discontinued using it. The Veteran used to work for the post office between 1981 and 2009. He noted that following this he worked as a custodian for approximately a year. Both the jobs were noted as being increasingly difficult to do due to his limitations in walking and lifting. He noted at the present time he was unable to do any job which required prolonged standing, bending, stooping and lifting. Upon examination, the examiner found that the Veteran had continuous pain of the spine, but has not had days of total incapacitation. Physical examination found forward flexion of the spine to 45 degrees, posterior extension to 20 degrees, right lateral flexion to 15 degrees and left lateral flexion to 15 degrees. Right rotation was to 25 degree and left rotation was also to 25 degrees. With 3 repetitive motions the Veteran had pain and fatigue, but no weakness or abnormal motion. He further did not have lack of endurance. With rotation he had less pain and less fatigue than with other measured movements. The examiner noted that his final impression was that the Veteran had a significant back injury which left him with degenerative disk disease that required 3 surgeries in the past and had been complicated by radiculopathy of the right nerve. The examiner noted that such was significantly impairing to the Veteran. The Veteran also received treatment for his back disability at the Arizona Spine Consultants between 2013 and 2015. During such treatment he was treated for chronic low back pain including by injection. He was diagnosed with minimal stenosis of the lumbar spine and significant degenerative facet disease. In May 2016 the Veteran was afforded another VA examination. The Veteran reported that since his last examination he was scheduled for a lumbar spinal fusion but such was cancelled due to another conflicting medical condition. He currently reports chronic back pain. He stated that he is weak and unstable when he walks due to his back pain and that he is experiencing occasional falls due to this. He has had epidural steroid injections previously and is currently taking Tylenol, Ibuprofen and/or Percocet for his condition. The Veteran reported flare ups of the lumbar spine, and that specifically standing, sitting and walking increased his back pain. Upon examination, there was forward flexion from 0 to 30 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 15 degrees, and left lateral flexion from 0 to 15 degrees. Left lateral rotation is from 0 to 15 degrees and right lateral rotation is from 0 to 15 degrees. The examiner noted that pain caused functional loss. Specifically, the Veteran had pain with forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional or loss of range of motion. Regarding the Veteran's weakness, fatigability or incoordination limiting his functional ability the examiner found that he was unable to say without mere speculation as he was not present when the Veteran used the back joint over a period of time. The examiner noted that the examination was not being conducted during a flare up. Guarding or muscle spasm of the lumbar spine was not noted. Ankylosis of the spine was not noted. Other neurological abnormalities such as bowel or bladder problems were not noted, but the Veteran was noted to have IVDS of the lumbar spine without any episodes of acute symptoms requiring bed rest in the past 12 months. The Veteran noted that he used a cane occasionally. The Veteran reported that he had a scar of the lumbar spine but that such was not painful or unstable. The examiner noted that the Veteran's lumbar spine condition impacted his ability to work as a postal carrier which required standing, walking and sitting. The Board finds that prior to May 17, 2016 an evaluation in excess of 20 percent for the Veteran's lumbar spine disability is not warranted. In this regard, the January 2010 VA examination shows forward flexion to 45 degrees and extension to 20 degrees and no ankylosis. Furthermore, the Board finds that from May 17, 2016 onward an evaluation in excess of 40 percent is not warranted as the Veteran has not showed ankylosis of the spine. Considering additional functional loss throughout the period on appeal, the Veteran reported pain and flare-ups. The Veteran reported increased pain upon prolonged standing, sitting, bending, lying down, and walking. In 2010 he stated he did not use any assistive devices, but at the 2016 examination, he reported occasional use of a cane. The 2010 VA examiner found that upon repetitive motion, there was pain and fatigue, but no weakness, abnormal motion, or lack of endurance. The 2016 VA examiner found that upon repetitive motion, there was no additional functional loss or loss of range of motion. Regarding the Veteran's weakness, fatigability or incoordination limiting his functional ability the examiner found that he was unable to say without mere speculation as he was not present when the Veteran used the back joint over a period of time. Furthermore, there was 5/5 muscle strength and no muscle atrophy through the period on appeal. Accordingly, even considering additional functional loss, higher evaluations are not warranted. See 38 C.F.R. § 4.40, 4.45; DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. 32. Although the Veteran has been diagnosed with IVDS, no higher evaluations during the appeal period are warranted under Diagnostic Code 5243 because the Veteran has not reported, and the evidence does not support, that there has been physician-ordered bed rest due to incapacitating episodes. Further, separate evaluations for any other associated objective neurologic manifestations are not warranted. Furthermore, the Veteran has consistently denied bowel or bladder symptoms. Thus, no separate ratings are for assignment. Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In light of the above, the claim for a higher rating for the Veteran's lumbar spine disability must be denied. In reaching this decision, the Board finds that the preponderance of the evidence is against the claim, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to May 17, 2016, an initial evaluation in excess of 50 percent for depressive disorder is granted. On and after May 17, 2016, an initial evaluation in excess of 30 percent for depressive disorder is denied. Prior to May 17, 2016, an initial evaluation in excess of 20 percent for chronic low back strain prior is denied. On and after May 17, 2016, an initial evaluation in excess of 40 percent for degenerative arthritis of the spine is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs