Citation Nr: 18143873 Decision Date: 10/19/18 Archive Date: 10/22/18 DOCKET NO. 06-34 414A DATE: October 19, 2018 ORDER Service connection for a right knee disability, to include as secondary to a service-connected low back disability, is denied. A temporary 100 percent disability rating for purposes of convalescence following right knee surgery in February 2006 pursuant to 38 C.F.R. § 4.30 is denied. A 70 percent disability rating for major depressive disorder is granted from May 25, 2005, to January 1, 2011, subject to the laws and regulations governing the award of monetary benefits. A 50 percent disability rating for major depressive disorder is awarded since January 1, 2011, subject to the laws and regulations governing the award of monetary benefits. A disability rating of 40 percent from May 25, 2005, for myositis of the lumbar paravertebral muscles, left L5-S1 paracentral disc herniation, and lumbar spine disc disease is granted subject to the laws and regulations governing the award of monetary benefits. A disability rating greater than 10 percent for chronic conjunctivitis is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability was not incurred during active service, is not secondary to or aggravated by a service-connected disability, and no other relationship to service is shown. 2. The Veteran’s right knee surgery was not necessitated by a service-connected condition. 3. From May 25, 2005, to January 1, 2011, the Veteran’s major depressive disorder was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to include symptoms of suicidal ideation. 4. Since January 1, 2011, the Veteran’s major depressive disorder improved somewhat and has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; depressed mood; anxiety; irritability, poor impulse control, and chronic sleep impairment. 5. For the entire appeal period from May 25, 2005, to the present, the Veteran’s lumbar spine disability caused limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, together with pain and muscle spasm. 6. The Veteran does not have ankylosis of his spine, radiculopathy or other neurologic abnormality, and he does not experience incapacitating episodes. 7. The Veteran’s chronic conjunctivitis does not cause visual impairment or disfigurement. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 111, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for assignment of a temporary total rating for convalescence purposes under Paragraph 30, following February 2006 surgery of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 3. The criteria for entitlement to a disability rating of 70 percent, but no higher, for depression from May 25, 2005 to January 1, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. 4. The criteria for an increased rating of 50 percent, but no higher, from January 1, 2011, for Major Depressive Disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. 5. The criteria for entitlement to a disability rating of 40 percent from May 25, 2005, for myositis of the lumbar paravertebral muscles, left L5-S1 paracentral disc herniation, and L4-L5 and L2-L3 bulging disc disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Codes 5237 and 5243. 6. The criteria for a disability rating in excess of 10 percent for the Veteran’s service-connected chronic conjunctivitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.951, 4.1, 4.2, 4.79, Diagnostic Code 6018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1973 to November 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from RO decisions dated in April 2006 and February 2007. In February 2012 and again in September 2017, the Board remanded these matters for further evidentiary development. Such development having been satisfactorily accomplished, the appeal is once again before the Board. The question of an earlier effective date for the award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) was remanded by the Board in September 2017 solely for the issuance of a Statement of the Case. The requested Statement of the Case was indeed issued by the RO in February 2018. The Veteran was informed that if he wished to continue an appeal on this issue, he was required to file the appropriate substantive appeal form within sixty days. He did not do so, therefore, no appeal was perfected and this issue is not in appellate status. Service connection The Veteran contends his right knee problem was proximately caused by or otherwise related to his service-connected back disability. The Board observes that during two recent VA examinations, the Veteran asserted that his left knee was much worse than his right knee. He is therefore advised that if he wishes to file a claim for service connection for a left knee disability, VA will review that claim after he files it. The current claim involves his right knee, and we will confine our analysis to the right knee. The question for the Board is whether the Veteran has a current right knee disability that is proximately due to or the result of, or was aggravated beyond its natural progress by the service-connected back disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Historically, the Veteran’s service treatment records do not show a diagnosis of any knee condition for either knee during service. There are also no reports of any injuries to the right knee. On routine examinations, the Veteran reported that he was in “good health” and did not report any problems with his knees. These examinations showed that the Veteran had a normal clinical evaluation of his lower extremities. The record indicates that he was diagnosed with degenerative joint disease of the right knee and a meniscal tear in January 2006. He was further diagnosed with right knee patellofemoral pain syndrome and right knee effusion in 2009. In January 2018, the Veteran underwent a VA examination on his right knee. The examiner found that the Veteran had right knee patellofemoral pain syndrome and effusion. The examiner opined that the conditions were: “less likely than not related to active service. Medical records fail to demonstrate a specific injury causing any injuries (causing these conditions) requiring consecutive treatment or causing chronic impairments. There is no evidence of any degenerative joint disease in right knee during service or (one) year thereafter to account for this diagnosis and its relation to service, for which this condition is not service related.” The Board finds that this opinion is thorough and affords it high probative value, as it was rendered following a clinical examination, review of the Veteran’s service records, and with the examiner’s demonstrated expertise. The medical evidence of record does not support the Veteran’s claim for service connection on a direct basis. There is no evidence of an inservice injury or illness, nor any competent evidence relating the Veteran’s current condition to his service. As such, the Board finds that service connection on a direct basis is not warranted. The Board has also considered whether the Veteran’s right knee disabilities were caused by his service-connected back condition. The January 2018 examiner opined that it was less likely than not that the Veteran’s right knee condition was proximately due to or the result of his service-connected back condition. The examiner explained that “there is no relation in terms of anatomy, biomechanics or function among the right knee and back conditions. There are two different anatomic areas distant on their areas as well as in range of motion and function.” Ultimately, the January 2018 VA examiner concluded that the Veteran’s right knee conditions were not caused by his back condition. The Board finds that this opinion is thorough and affords it high probative value. The Veteran himself has argued that his right knee condition is related to his active duty service or his service-connected back condition. He reports that his physician has told him that his right knee disorder is related to service-connected disability. In this case, the Veteran himself is not shown to possess the medical knowledge or expertise to render an opinion on the etiology of his right knee condition. In making this determination, the Board has considered the Veteran’s contentions, but, given the factors listed above, they are insufficient to place the nexus question into at least relative equipoise. Finally, the Board has considered whether service connection is warranted based on a theory of continuity of symptomatology. In this case, however, the record does not demonstrate that the Veteran had continuity of right knee symptoms since service. The Veteran’s post-service treatment records do not show complaints of right knee symptoms of a continuous nature. Rather, the record indicates that the Veteran did not seek treatment or receive medical diagnoses of a chronic disability involving the right knee until many years after service. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for a right knee condition and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Temporary total disability rating based upon convalescence The law provides a temporary total disability rating for service-connected disabilities necessitating surgery and at least one month of convalescence, among other criteria. 38 C.F.R. § 4.30. The Veteran underwent surgery for the correction of a right meniscus tear in February 2006, and he has requested this convalescence benefit in conjunction with his claim for service connection for his right knee disability. Because service connection for his right knee has been denied, the ancillary convalescence benefit is not available to the Veteran. Increased Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, we must evaluate the veteran’s condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. A disability of the musculoskeletal system is measured by the effect on ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion in assigning the most accurate disability rating. 38 C.F.R. § 4.40. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Depression The Veteran seeks entitlement to an increased rating in excess of 10 percent from May 25, 2005 to October 23, 2007, in excess of 30 percent from October 23, 2007 to August 5, 2016 and in excess of 50 percent thereafter for major depressive disorder (MDD). The Veteran’s MDD is currently rated at 50 percent disabling under Diagnostic Code 9434. 38 C.F.R. § 4.130. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that where a mental condition is manifested by 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, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating is assigned. 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- 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; difficulty in establishing and maintaining effective work and social relationships, is rated 50 percent disabling. 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 worklike setting); inability to establish and maintain effective relationships, is rated 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). The Veteran was granted service connection for dysthymic disorder, later changed to major depressive disorder, in May 25, 2005, with a 10 percent disability rating. During a July 2005 VA examination, the Veteran was diagnosed with dysthymic disorder, with anxiety features. The Veteran reported that he had relationship problems, irritability, and depression. He described becoming verbally and physically aggressive easily, and had been recently accused of alteration of the peace by his neighbors. He remained employed at the post office, wherein he had worked for 17 years. However, he had difficulty with his peers. He further described a poor relation with his wife, who did not understand him and he planned to leave her. His private psychiatrist had prescribed Zyprexa, Ambien, Zoloft and Tranxene. The Veteran’s mental status examination was significant for mood which was tense, guarded, depressed and somewhat defensive, a blunted affect; serious sleeping problems, and poor impulse control. A GAF score of 70 was assigned. Witness statements from his family members described the Veteran as nervous and depressed that emotionally affected the family. His spouse reported quitting her job to attend to him. A July 2005 VA clinic record noted additional symptoms of anxiety with panic attacks, feeling angry most of the time, lack of energy and poor motivation. He described anger problems with his neighbors with an incident of aggression towards his neighbor. Mental status examination was significant for temperamental mood, limited insight, and impulsive judgment. A GAF score of 50 was assigned. A September 2005 evaluation noted that the Veteran had occasional thoughts of hurting someone, but he had never acted on these thoughts. He had a court problem with a neighbor which had not involved violence or alcohol. He described having serious conflicts with his family on 20 days in the last month. An October 2005 substance abuse evaluation noted the Veteran to have a depressed and irritable mood with poor insight. A GAF score of 50 was assigned. A GAF score of 60 was assigned the next month. In June 2006, it was reported that the Veteran had a GAF score of 50 and that he was having difficulty working at the post office due to his mental condition. On October 26, 2006, the Veteran was hospitalized for thirteen days due to his depressive anxiety symptoms, with irritability. At discharge, he was given a GAF of 60. A July 2007 VA clinic record reflected a GAF score of 60. At that time, his prescription of lorazepam was increased as a short-term measure to control acute increase in anxiety and sleeping. His mental status examination was significant for mild psychomotor agitation, anxious mood, and good concentration and attention. In October 23, 2007, the Veteran was hospitalized for psychiatric treatment. He had an admission GAF score of 25 to 30. He was put under observation to prevent self-harm or harm to others, and had been having altercations with his neighbor. The treating psychiatrist reported that the Veteran had symptoms including: severe depressive and anxiety symptoms. The treating physician noted that there were no hallucinations, suicidal ideation or intent, or homicidal intent. The Veteran was stabilized with medication. He had a GAF score of 55 at discharge. A November 2007 clinic record noted a recent discharge from substance clinic and reflected a GAF score of 55-60. Mental status examination was significant for restricted affect, and concentration which was not preserved. During an April 2008 VA examination, the Veteran was diagnosed with major depressive disorder. The Veteran reported that he had a severe low mood, low energy, feelings of worthlessness with death wishes, decreased attention and concentration, irritability, verbal and physical aggression, crying spells, and sleep disturbances. During the examination, the examiner noted his symptoms included: constricted affect, depressed mood; anxiety; dysphoria, mild memory impairment, and chronic sleep impairment. He described acute onsets of heart pounding sensation, restlessness, He had past suicidal thoughts, and had been hospitalized in the last year due to thoughts of harming his neighbor. The examiner determined that the Veteran had severe irritability, apathy, and hostility, with no suicidal or homicidal thoughts. The Veteran’s recent and remote memory was mildly impaired. The examiner indicated that the Veteran had severe major depressive disorder and prominent anxiety symptoms which were more likely symptoms with panic like manifestations. The Veteran’s symptoms markedly limited his social skills and coping abilities leading to major distress and psychosocial impairment. The Veteran’s major depressive disorder resulted in deficiencies in areas of judgment due to poor impulse control, thinking due to profound negativity, family relations due to poor social interactions, and depressed mood. There was reduced reliability and productivity due to lack of motivation, distorted interpretation of environment, poor impulse control, profound negativism and depressed mood. A GAF score of 50 was assigned. An April 2008 clinic record noted a GAF score of 60. There was a GAF score of 65 in May 2008. In July 2008, the Veteran was noted to have an exacerbation of anxiety due to recent legal conflicts with his neighbor. He was afraid of losing control due with mood swings and irritability. The Veteran was admitted to the day hospital in August 2008 reporting difficulties with memory, concentration, decision making, problem solving, anxiety management, lack of motivation, easy loss of control, low self-esteem, tendency to isolate and neglect of medications. He had an admission GAF score of 60. A February 2009 VA psychiatry note reflected that the Veteran had continued problems with his neighbor, who had accused him of attempting to hit him with a car. He described always having an aggressive demeanor since service discharge, and he felt in many situations where people provoked him. On April 16, 2009, the Veteran’s treating physician recommended time off from employment due to his emotional issues. The physician stated “due to his current emotional state, he is in no condition to return to work…The recommendation is that he rest and (receive) psychiatric treatment. Return on May 18, 2009.” At that time, the Veteran described himself as being too disabled to work. In May 2009, a VA psychologist noted that the Veteran reported difficulties at work with co-workers who tended to antagonize him. Mental status examination was significant for an anxious and upset mood, superficial insight, and decreased concentration and attention. Effective October 31, 2009, the Veteran was deemed disabled by the Social Security Administration based on a primary diagnosis of disorders of the back, and a secondary diagnosis of affective disorder. In the application, the Veteran described social isolation, anxiety, depression, insomnia, loss of memory, memory blockage, conflicts with neighbors, irritability, hearing hallucinations and nightmares. During a January 2010 VA examination, the Veteran was diagnosed with dysthymic disorder, with anxiety features. The Veteran reported that he had relationship problems, irritability, and depression. The Veteran reported that the following symptoms: “intolerance to noises, hears voices talking to each other, irritability, trouble sleeping, feels he is going to die, sexual dysfunction, appetite shifts, ruminations. These symptoms had started a long time ago on a daily basis, severe.” During the examination, his symptoms included depressed mood; anxiety; and chronic sleep impairment. The Veteran had a hostile mood towards the examiner, and manifested a constricted affect and dysphoric mood. The examiner determined that the Veteran “exhibited more or less the same symptoms and functioning as described and documented in service medical records.” The examiner did not note any type of social or occupational impairment. The examiner gave the Veteran a GAF score of 70. During a May 2010 social work session, the Veteran reported having passing suicidal thoughts, related to a neighbor’s death, but no actual suicide plan. His other social work notes from 2010 to the present reflect that his care providers carefully checked his status, frequently asking him whether he was having suicidal thoughts or plans. Other than the single instance in May 2010, he denied such thoughts. His regular therapy appointments also reflect that he learned and implemented many strategies and techniques for dealing with anger, aggressive thoughts, interpersonal conflict, and relaxation during this time. An October 2010 psychiatric examination conducted for SSA included the Veteran’s report of quitting work in 2008 due to emotional problems and difficulties communicating with co-workers. He described a preference for being alone, not receiving visits from friends or relatives, and not participating in any type of activity. He had a reduced frustration tolerance as well as ability to problem solve. Mental status examination was significant for reduction in psychomotor activity, depressive mood, reduced speech production, poor self-esteem, reduced recent and remote memory, poor abstraction capacity, and poor concentration. The examiner offered a diagnosis of major depression with a GAF score of 40. The Veteran was deemed requiring assistance in administering money. His functional capacity was described as not handling problems that arose in the home and not being involved in decision-making. The Veteran had physical limitations and emotional disorder which interfered with functionality. Thereafter, the Veteran’s clinic records reflect continued complaints of chronic insomnia, anxiety, irritability and poor tolerance to frustration. His mental status examinations were significant for anxious mood, constricted affect and impaired memory. He described sharing experiences with other veterans three times per week, walking, and internal tourism. He had difficulties during holiday times, and had variable motivation. In February 2015, he was described as having psychotic features. He later reported receiving and visiting family members. During an August 2016 VA examination, the Veteran reported being hospitalized at VA in 2007 after attempting to kill his neighbor. He described being consumed by anxiety. He was bothered by sounds and crowded places, and had killed several pigeons with a firearm several years ago. His symptoms included depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; and chronic sleep impairment. His mental status examination was significant for anxious mood, motor restlessness. The Veteran was diagnosed with major depressive disorder. The examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. The Veteran’s outpatient treatment records between 2010 and 2018 reflect that he continued to treat his depression and mental health symptoms with medication and regular therapy, where he continued to refine therapeutic techniques for dealing with anger, aggressive thoughts, interpersonal conflict, and relaxation. In a January 2018 VA Examination, the examiner determined that the Veteran had 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). His symptoms included depressed mood; variable motivation; occasional anxiety; irritability; decreased problem-solving skills; and sleep disturbances. Following careful review of the voluminous evidence regarding the Veteran’s mental state, the Board views the situation differently than the RO has over the years. Rather than a gradual increase in disability from 10 percent in 2005 to 50 percent in 2016, it appears that the Veteran’s symptoms were much worse during the earlier years and that they have improved recently, with regular treatment, regular medication, the removal of work-related stress when he stopped working, and his own perseverance. Key to this conclusion is that his psychiatric hospitalizations and worst mental crises occurred in 2006 and 2007. His treatment reports during this time are replete with accounts of damaging interpersonal situations, conflicts, and relatively frequent suicidal ideation. His mental healthcare providers helped him through what seemed to be one crisis after another, and his physicians recommended that he stop working. At some point, however, likely around 2011, although by nature improvement in mental health tends to gradual, he improved and began functioning more easily and with apparently better mental health. His suicidal thoughts are a particularly important symptom in this regard. The General Rating Formula for Mental Disorders provides a 70 percent disability rating in cases of suicidal ideation. This symptom does not appear in any of the lower level criteria. Furthermore, the United States Court of Appeals for Veterans Claims (Court) has held that mere thoughts of suicide are sufficient to establish suicidal ideation. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Because the most recent report of suicidal ideation in the Veteran’s outpatient treatment records occurred in May 2010, after having been a too-frequent occurrence in his earlier records, to include necessitating at least one mental health hospitalization during the appeals period, the Board will assign a 70 percent disability rating for the Veteran’s major depression for the first portion of the appeals period, from May 25, 2005, through January 1, 2011. January 2011 is chosen to acknowledge the gradual nature of psychiatric improvement, as well as the October 2010 SSA report showing the GAF Score of 40, and the recommendation of that date that the Veteran should not handle money. After January 2011, however, the Veteran’s records reflect a symptom picture which is more commensurate with the criteria set forth for the 50 percent disability rating: mental impairment with reduced reliability and productivity with specific symptoms of panic attacks; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective relationships. The descriptions of his symptoms contained in the 2016 and 2018 examination reports are key to this analysis of his disability picture, in addition to the reports of his outpatient treatment. Following careful review, we find that at no point in the appeal period did the Veteran’s symptoms warrant a 100 percent disability rating. Total occupational and social impairment is not shown. At no point did he manifest gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or his own name. Therefore, a 70 percent disability rating for major depressive disorder is awarded between May 25, 2005, and January 1, 2011. A 50 percent disability rating is awarded thereafter. Lumbar spine The Veteran is seeking an increased rating in excess of 20 percent from May 25, 2005, to August 8, 2016, and in excess of 40 percent thereafter, for his service-connected thoracolumbar spine disability. The Veteran filed the current increased rating claim on appeal in April 2005. In support of his claim, he submitted a private treatment report which noted the Veteran to have severe low back pain with gradual muscular weakness and incremental deficit treated by prophylactic management including postural education, performance of daily exercise program and medication therapy. In a July 2005 VA examination, the Veteran described thoracolumbar pain, additionally described as a shock-like and stabbing pain, specifically at the paravertebral muscles. He had flares of 9/10 severity which occurred 3 to 4 times a month, and usually lasted up to a day in duration. His symptoms were precipitated by prolonged standing, repetitive forward bending, and days that were cloudy or rainy. He denied additional limitation of motion during flares. He could walk for about 20 to 30 minutes. He further denied any neurologic manifestations. On examination, the Veteran had flexion to 60 degrees, with pain from 20 degrees to 60 degrees with a functional loss of 10 degrees due to pain. There was bilateral lateral flexion, as well as bilateral lateral rotation from 0 to 20 degrees with a functional loss of 10 degrees due to pain. The examiner found objective evidence of pain on range of motion, with functional loss of the lumbar spine. The examiner did not find evidence of lack of coordination, lack of endurance weakness, fatigue, or further functional loss. The examiner stated that inspection of the thoracolumbar spine did not show any evidence of ankylosis, abnormal kyphosis, reversed lordosis or scoliosis, and sensory examination and motor examination showed no neurological deficit to lower extremities. A September 2005 VA clinic record noted that a magnetic resonance imaging (MRI) scan had been ordered to evaluate back pain with irradiation and numbness to the left lower extremity. Examination showed range of motion was intact with adequate muscle tone, no deformities, and no gross motor or sensory deficit. An x-ray report showed straightening of the spine consistent with inflammatory changes, narrowing of L1-L2 and L3-L4 disc spaces, marginal spondylosis, narrowing of articular facets, and deformity of the L3 vertebral body which could represent posttraumatic changes. An assessment of back pain, “rule out (r/o) radiculopathy” was provided. There is no medical evidence indicating that this MRI was conducted. In a subsequent September 2005 examination, the Veteran was noted to have no gross motor or sensory deficits. In an April 2008 VA examination, the examiner found that the Veteran had flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, left lateral rotation to 30 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 30 degrees. The examiner found objective evidence of pain on range of motion. The examiner found painful flexion from 40 to 50 degrees; painful extension from 5 to 10 degrees; painful lateral bending left and right is 15 degrees; and painful rotation left and right is 15 degrees. The examiner noted that guarding and muscle spasms did not result in abnormal gait or spinal contour. The examiner did not find evidence of radiculopathy or ankylosis of the spine. An April 2008 magnetic resonance imaging study was interpreted as showing degenerative changes of the lumbar spine. In a March 2009 examination, the Veteran was found to have low back pain. However, the physician did not note any signs of radiculopathy. The report of an August 2009 magnetic resonance imagining study was interpreted as showing straightening of the lumbar lordosis, as may be seen with muscle spasm versus positioning. There were degenerative changes with disc bulges at every level from L1-L5. In a January 2010 VA examination, the Veteran reported having constant low back pain which radiated to his left leg and his entire spine. He rated his pain as “8” on a scale of 1 to 10. He was taking prescription medication for his pain “with good results.” He reported fatigue, decreased motion, stiffness, weakness, spasms and pain involving his low back. He wore a brace. He reported severe weekly flare-ups which were precipitated by bending forward and alleviated by rest. The examiner specified there were no incapacitating episodes, however. Upon clinical examination, the Veteran’s posture and gait were normal. Muscle spasm was present, although muscle weakness was not. The examiner deemed that the muscle spasm was not severe enough to cause abnormal gait or abnormal spinal contour. During range of motion exercises, the Veteran had flexion from 0 to 10 degrees, extension from 0 to 5 degrees, left and right lateral flexion from 0 to 10 degrees, left and right lateral rotation from 0 to 10 degrees. The examiner commented that the Veteran’s motion was inhibited by pain and that the Veteran put forth submaximal effort. The Veteran’s muscle tone, motor examination, reflexes and sensory examination were within normal limits. Noted was decreased sensation to vibration and pinprick in both legs without any dermatomal pattern. An October 2010 MRI found “vertebral osseous structures are intact. Hypertrophic osteophyte at the L3 level and degenerative narrowing of the L3-L4 intervertebral disk space. No scoliosis or listhesis.” The examiner did not note any signs of radiculopathy. An October 2010 SSA examination described the Veteran as manifesting “mild” loss of motion (LOM) with tenderness at motion. There was 70 degrees of forward flexion, 20 degrees of lateral flexion bilaterally. An October 2015 VA clinic record noted the Veteran’s report of low back pain which radiated down his leg and hindered ambulation. An assessment of exacerbation of chronic low back pain was provided. A December 2015 record noted that a private MRI showed lumbar spondylosis, lumbar spasm, left paracentral extruded disc component at L2-L3 causing obliteration upon the left lateral recess. There was also reference to herniated nucleus pulposis of L2-L3. The problem list later reported a diagnosis of lumbago-sciatica due to displacement of lumbar intervertebral disc. Examination in March 2016 did not disclose any sensory changes. An April 2016 physical therapy consultation prescribed a TENS unit. It was noted that the Veteran’s sensory and motor functions were preserved and that findings on examination were more consistent with facet joint arthropathy. In an August 2016 VA examination, the Veteran reported constant low back pain further described as a stabbing and pressure-like pain sensation. He further described left knee pain with left lower extremity numbness sensation. He again described flare-ups where he stayed home. He was taking prescription medication and attending physical therapy. On examination, the Veteran had flexion to 35 degrees, extension to 10 degrees, left lateral flexion to 12 degrees, left lateral rotation to 20 degrees, right lateral flexion to 15 degrees, and right lateral rotation to 20 degrees. The examiner found objective evidence of pain on range of motion, with functional loss that included dressing and undressing the lower parts of his body. The examiner found additional functional loss with repetitive use with flexion reduced to 25 degrees, extension limited to 5 degrees, lateral rotation limited to 10 degrees bilaterally, and lateral rotation limited to 20 degrees bilaterally. There was no evidence of fatigability, incoordination, muscle weakness or pain during examination. There was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. There were no neurologic deficits including radicular pain or other signs or symptoms due to radiculopathy. The Veteran reported episodes of bed rest due to incapacitating episodes totalling less than two weeks during the past 12 months. He used a cane to assist in ambulation. There was no ankylosis. The examiner stated that the Veteran should avoid lifting or carrying objects greater than 15 pounds, but was capable of a sedentary type of job with light duty restrictions with periods of intermittent standing and seating and no performing heavy lifting or stooping, such as a clerk or answering a phone. It is the report of this examination upon which the RO based the current award of 40 percent disabling. In an October 2016 pain consultation, the treating physician noted that the Veteran had complaints of “numbness down anterior left thigh.” The physician noted “low back pain and radicular symptoms down to left leg, although unclear radicular distribution at this time.” The examiner noted that EDX (electrodiagnostic imaging) was negative for radiculopathy. Physical examination showed no abnormal sensory, motor or reflex abnormality. Similar findings were reported on examination in January 2017. In a January 2018 VA examination, the Veteran reported daily flares of thoracolumbar spine pain which lasted hours in duration. He described functional limitations of loss of standing and ambulation tolerance. On examination, the Veteran had flexion to 15 degrees, extension to 10 degrees, left lateral flexion to 5 degrees, left lateral rotation to 10 degrees, right lateral flexion to 15 degrees, and right lateral rotation to 5 degrees. The examiner found objective evidence of pain on range of motion. The examiner found guarding and muscle spasms which did not result in abnormal gait or spinal contour. The examiner did not find additional functional loss with repetitive use, but noted that all musculoskeletal disorders could potentially cause functional limitations during repetitive use over time or during flares. The examiner did not find evidence of radiculopathy or ankylosis of the spine. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), DC 5235-5242. Under the General Rating Formula, a 20 percent rating is warranted 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 forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is only warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. Id. Note (1). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained 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). As will be further explained below, in making the determination to deny higher ratings for the Veteran’s back condition, the Board notes that it included consideration of the Veteran’s complaints of pain, and was cognizant of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. Intervertebral disc syndrome may alternatively be evaluated under the Formula for Rating Intervertebral disc syndrome based on incapacitating episodes. 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 prescribed by a physician. 38 C.F.R. § 4.71a. The evidence shows, without much analysis, that the Veteran squarely met the criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine throughout the entire rating period. Thus, the question before the Board is at what point his low back worsened to the point of warranting the 40 percent disability rating, and whether a higher rating might be warranted for any point in time. In July 2005, the Veteran demonstrated forward flexion to 60 degrees, with pain beginning at 20 degrees. In April 2008, he had painful flexion beginning at 40 degrees. In July 2010, he had flexion only to 10 degrees, although the examiner noted less than optimal effort on the part of the Veteran during the examination. In July 2016, the Veteran had flexion reduced to 25 degrees on repetitive use testing. All of these measurements were noted by the examiners to involve pain on movement and in some cases, muscle spasm as well. Therefore, the Board holds that a 40 percent disability rating is warranted for the Veteran’s lumbar myositis for the entire appeal period, beginning in May 2005 based upon limitation of forward flexion. As set forth above, higher schedular ratings are available only in the case of ankylosis, which the Veteran does not have. The rating criteria also provide for the separate evaluation of associated neurologic abnormalities. The Veteran is not shown to have associated neurologic abnormalities either, however. Although he reports that his pain radiates to his left leg, an objective radiculopathy has not been confirmed in the multiple examinations and treatment records, to include the different testing accomplished over the years, to include EDX and MRIs, in addition to the clinical testing and evaluation. Lastly, the evidence shows that the Veteran’s intervertebral disc disease does not cause incapacitating episodes, as he has not been prescribed bed rest by a physician during this lengthy appeal period. Although he credibly reports that he can only resolve a flare-up through rest, this situation does not fit into the definition of incapacitating episodes as defined in 38 C.F.R. §4.71a. In sum, a 40 percent disability rating is warranted for the Veteran’s lumbar myositis over the entire appeal period, beginning in May 2005. There is no basis for a higher disability rating. Conjunctivitis The Veteran seeks an increased disability rating for his chronic conjunctivitis. He has reported episodes of redness and itching, with occasional “sticky” sensation as a result of his service-connected conjunctivitis. Generally, disabilities of the eye are rated based upon resulting visual impairment, after correction, or based upon visual field loss. 38 C.F.R. §§ 4.75, 4.76a, 4.77. Throughtout the appeal period, the Veteran’s visual acuity has been correctable to within normal limits, so a compensable disability rating is not warranted on this basis. Alternative ratings are provided for disabilities of the eyes causing incapacitating episodes. 38 C.F.R. § 4.79. The Veteran does not have incapacitating episodes involving his conjunctivitis; he does not assert such, and the medical evidence does not reflect such. The Veteran is currently in receipt of a 10 percent rating for conjunctivitis pursuant to Diagnostic Code 6018. 38 C.F.R. § 4.79. Diagnostic Code 6018 provides a 10 percent rating for active conjunctivitis with objective findings, such as red, thick conjunctivae, mucous secretion. Inactive conjunctivitis is rated on the basis of any residuals of conjunctivitis such as visual impairment and disfigurement. 38 C.F.R. § 4.79, Diagnostic Code 6018. Thus, the Veteran is already in receipt of the highest schedular disability rating provided for chronic conjunctivitis. A higher, 30 percent rating is warranted under Diagnostic Code 6017, if the medical evidence shows active trachomatous conjunctivitis (commonly known as pink eye). Thirty percent is the minimum rating while there is active pathology for that condition. Inactive trachomatous conjunctivitis is rated based upon residuals including visual impairment and disfigurement. 38 C.F.R. § 4.79, Diagnostic Code 6017. The Veteran filed his current increased rating claim in April 2005. At that time, he submitted a private medical report which reflected ongoing treatment for allergic conjunctivitis, dry eye syndrome and presbyopia. His treatment included short term steroid drops for allergic conjunctivitis, and over-the-counter lubricating eyedrops (Systane) for eye dryness. An April 2004 VA eye examination noted the Veteran’s report of burning and itching of the eyes, as well as a foreign body sensation. Examination was significant for normal ocular examination, presbyopia, and dry eye symptoms, and no active conjunctivitis. There was 20/20 uncorrected and corrected vision. A July 2005 VA eye examination noted the Veteran’s report of burning and itching sensation of the eyes since service. Examination was significant for posterior blepharitis/dry eyes and no conjunctivitis. The Veteran had 20/15 corrected vision, bilaterally. The examiner stated that the Veteran’s loss of vision was caused by or a result of his refractive error and his symptoms by his posterior blepharitis and dry eyes. During a January 2010 VA eye examination, the Veteran’s corrected vision was again 20/20 bilaterally. He complained of an ocular burning sensation, red eyes, and itching since active service. He had no visual field deficits to confrontation. There was no conjunctivitis. In addition to refractive error and posterior blepharitis, bilateral incipient cataracts were noted. The examiner specifically commented that the Veteran’s symptoms were not caused by or a result of conjunctivitis. In a December 2016 treatment note, the treating physician noted diagnoses of refractive error and chronic allergic conjunctivitis. The Veteran had 20/20 corrected vision, bilaterally. Visual fields were full to confrontation in both eyes. His corneas were clear. Inspection of his conjunctiva revealed “inf conj both eyes.” “INF” could stand for “infected” or “infused,” it is unclear exactly what the abbreviation was intended to mean. The diagnoses in December 2016 were of refractive error and chronic allergic conjunctivitis in both eyes. It does not appear that he was given any prescription medication at this encounter. In January 2018, a VA examiner provided the Veteran with a full and complete examination. The examination indicated that the Veteran had 20/20 corrected vision in both eyes. Again, incipient cataracts were noted, as were bilateral pingueculae, and dermatochalazia in both eyes. The examiner diagnosed the Veteran with bilateral active non trachomatous conjunctivitis, which did not cause scarring or disfigurement. The examiner stated that the “reduction in visual acuity is due to refractive error,” and that the Veteran’s refractive error was congenital and developmental in origin. At least two episodes of active conjunctivitis are shown during the appeal period; in December 2016, and again in January 2018. Absent a showing of decreased corrected visual acuity, reduced visual fields, incapacitating episodes, or disfigurement due to conjunctivitis; none of which are shown, a higher disability rating for such residuals under Diagnostic Code 6018 is not warranted. Additionally, the service medical records show various periods of active conjunctivitis, but never specially characterized the conjunctivitis as trachomatous. At no time during the course of this appeal is trachomatous conjunctivitis shown in medical records or upon physical examination. Thus, consideration of a higher rating under the provisions of Diagnostic Code 6017 is not appropriate. For these reasons stated, the Board holds that the preponderance of evidence is against the Veteran’s claim for a rating in excess of 10 percent disabling for chronic conjunctivitis and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter