Citation Nr: 18159466 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-61 399 DATE: December 19, 2018 ORDER Entitlement to service connection for vertigo is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a headache disorder is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is denied. Entitlement to a rating higher than 20 percent for a thoracic spine disability, with 7th and 8th vertebra fracture and lumbar mechanical pain, is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran’s vertigo was incurred in service or is otherwise related to service. 2. The weight of the evidence is against finding that the Veteran’s sleep apnea was incurred in service or is otherwise related to service. 3. A headache disorder clearly and unmistakably preexisted service. 4. The Veteran’s preexisting headache disorder clearly and unmistakably did not increase in severity during or as a result of active duty service. 5. The record does not contain competent medical evidence establishing a diagnosis of PTSD. 6. An acquired psychiatric disorder, to include PTSD, was not documented during service, nor was a psychosis shown within one year of separation from service, and the weight of the competent evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder and service. 7. During the period on appeal, forward flexion of the thoracolumbar spine was greater than 30 degrees; additional functional loss was not shown; incapacitating episodes, favorable or unfavorable ankylosis, and neurological abnormalities were not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. 4. The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for entitlement to a disability rating in excess of 20 percent for a thoracic spine disability, with 7th and 8th vertebra fracture and lumbar mechanical pain, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code Codes 5237-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1984 to April 1991. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, an organic disease of the nervous system, and calculi of the kidneys and nephritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. 3.303 (b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for vertigo The Veteran asserts that his vertigo had onset in service. He has asserts that complaints of dizziness in service were a manifestation of his currently diagnosed vertigo. The Veteran’s service treatment records show that in 1989 he reported dizziness associated with a head cold. The service treatment records contain no history, diagnosis or findings associated with vertigo. Following discharge from service, records dated after 2013 documented treatment for vertigo. On VA examination in December 2015, the Veteran reported having been diagnosed with vertigo three years earlier, in February 2013. He was treated with medication. The Veteran does not report ongoing vertigo symptoms since service. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran’s vertigo was less likely than not incurred in or caused by service. The examiner noted that the service treatment records contained an incident of complaints of dizziness associated with headaches. The complaints noted in service were not consistent with a chronic disability and there was no objective evidence of continuity of symptomatology. Moreover, vertigo was not diagnosed until many years after discharge from service. The examiner concluded that there was no nexus between the Veteran’s complaint of dizziness decades earlier in service and his current vertigo condition. The Board finds that the December 2015 VA examiner’s opinion was based on a thorough review of the claims file and provided adequate rationale. The opinion is consistent with the other medical evidence of record. Accordingly, this opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no competent medical opinion of record linking the current vertigo to service. The Veteran does not contend that he has had vertigo since service, only that his current vertigo is related to the symptoms he had in service. While the Veteran is competent to attest to symptoms of dizziness, a vestibular disorder such as vertigo is a medically complex diagnosis that is not susceptible to lay observation as it requires medical knowledge and training. Accordingly, the Veteran’s lay opinion on the etiology of his vertigo is not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the medical opinion rendered by the VA examiner to be significantly more probative than the Veteran’s lay assertions. Significantly, there is no competent medical evidence that supports the claim. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for vertigo. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for sleep apnea The Veteran claims service connection for sleep apnea. During the pendency of this appeal the Veteran has been diagnosed with sleep apnea. Accordingly, the first element of service connection, a current disability, has been established. The question before the Board therefore is whether such condition is related to service. The service treatment records contain no complaints, history or findings consistent with sleep apnea. Post-service treatment records after 2013 recorded complaints of poor sleep for the past six months. In November 2015, a clinician noted excessive snoring while the Veteran underwent a colonoscopy, and advised him to undergo diagnostic testing for obstructive sleep apnea. A November 2015 sleep study revealed severe obstructive sleep apnea. Here, there is no competent and credible evidence of a nexus between the Veteran’s current sleep apnea and service. The only evidence of record in support of such a nexus is the Veteran’s lay opinion that his current sleep apnea is due to service. The Board finds no reason to question the credibility of the lay accounts regarding a history of snoring and fatigue. However, to the extent that they are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. In this regard, while the Veteran can competently report symptoms of snoring, any actual diagnosis of sleep apnea requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran’s assertions as to a relationship between his sleep apnea, diagnosed decades after service, and service are of little probative value. A VA examination or medical opinion regarding the etiology of his currently diagnosed sleep apnea was not indicated as there is no suggestion that the Veteran’s current disability may be associated with service. Again, there is no competent evidence of sleep apnea in service or within one year following discharge from service. Moreover, there is no competent and probative evidence to show that the Veteran had sleep apnea, during or contemporaneous with service and no competent and probative evidence that his current disorder is related to his service. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea and that the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to service connection for a headache disorder The Veteran claims entitlement to service connection for headaches. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is “noted” at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). When the veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). On the other hand, where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). “If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing ‘that the increase in disability is due to the natural progress of the disease.’” Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. at 235 (2012) (“Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.”); see also 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Yanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) (“[O]nly an inference that is iron clad and copper riveted can be ‘unmistakable.”). As an initial matter, the record has raised the issue of whether the Veteran had a preexisting headache disorder. As noted above, a veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby, supra). Here, the Veteran’s enlistment examination in November 1983 reflects that his neurological evaluation was normal. In February 1987 and September 1989, the Veteran was treated for headaches. He related a history of intermittent migraine attacks since the age of seven. Further, a VA examiner in December 2015 and September 2016, following a review of the claims file and examination of the Veteran, determined that the Veteran’s migraine headaches preexisted service. In support of the opinion, the examiner cited to the Veteran’s own statements that his migraines existed prior to service and the medical evidence that reflects a history of headaches having onset in childhood. Accordingly, the Board finds that the Veteran’s headache disorder clearly and unmistakably preexisted service. Having found that the Veteran clearly and unmistakably had a preexisting headache disorder, the first prong of the presumption of soundness is rebutted. The next inquiry is whether the preexisting migraine headaches were clearly and unmistakably not aggravated by service; that is, whether there was not any increase in disability during service beyond the disorder’s natural progression or flare-ups. If so, the claim is denied because both prongs of the presumption of soundness would be rebutted. If not, the analysis moves to the nexus element of the claim because the condition would be considered to have been incurred in service. The Board next finds that the weight of the evidence demonstrates that the currently diagnosed migraine headaches were not aggravated by service. Specifically, as noted above, the service treatment records show that he sought treatment for intermittent episodes of migraine headaches that were effectively treated with medication. Treatment alone does not establish a worsening, as it does not show an increase in frequency or severity of the condition. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here, there is no suggestion that any underlying disability was permanently worsened. In fact, after 1988, no further treatment for migraines was noted. After service, treatment records show continued treatment for chronic migraine headaches. These records reflect a history of migraines since childhood. On VA examination in December 2015, the Veteran reported suffering from migraines for a long time. The examiner noted treatment for migraines during active duty. The examiner opined that the condition preexisted service as it had onset in childhood. In a September 2016 addendum report, the examiner opined that the Veteran’s migraine headache condition, which existed prior to service, did not increase in severity beyond the natural progression of the disease, during service. The examiner explained that migraines could often begin in childhood and the frequency of headaches varied and sometimes triggers could be identified and eliminated, which would reduce the frequency in some cases. Based on a review of the medical records and an interview of the Veteran, the Veteran’s history of headaches, associated symptoms, and pattern of occurrence, were consistent with the natural history of the condition and failed to show permanent aggravation of the disease. As is the case here, once the second prong of the presumption of soundness is also rebutted, the claim must be denied as the analysis ends. The Board acknowledges the Veteran’s assertion that his preexisting migraine headache disorder was aggravated during service. However, he is not competent to render an opinion on this matter. As such, the Board finds that the VA examination and opinion provides the most probative evidence of record with respect to the nature and etiology of the Veteran’s current headache disorder. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The Board finds that this evidence is persuasive and has great probative weight. The medical reports and opinions are detailed, provided a rationale for the opinions, and cited to the facts which supported the opinion. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a headache disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD The Veteran contends that he developed PTSD due to his experiences in service. He specifically claims that he developed PTSD due motor vehicle accidents and a fight with a staff sergeant. Claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), i.e., a diagnosis conforming to specified diagnostic criteria (currently the DSM-5, previously the DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). If a stressor claimed by a veteran is related to the Veteran’s “fear of hostile military or terrorist activity” and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service. 38 C.F.R. § 3.304 (f)(3). If a stressor is related to combat, then the Veteran’s testimony alone is sufficient to establish the occurrence of this particular stressor. The service treatment records contain no complaint, history or findings consistent with a psychiatric disorder. After service, the Veteran’s VA treatment records do not reflect a diagnosis of PTSD. In fact, several VA treatment records show that his PTSD screens were all negative. VA records after 2015 reflect a diagnosis of adjustment disorder with depressed mood. At the outset, the Board points out that the evidence does not support a finding that the Veteran meets the criteria for a DSM-5 or DSM-IV diagnosis of PTSD. Here none of the clinicians who have treated and examined the Veteran have diagnosed PTSD that meets the DSM criteria. The Board has considered the Veteran’s self-diagnosis of PTSD and while he is competent to report his mental health symptoms, he is not competent to diagnose his condition. In a claim of service connection for PTSD, there is a specific legal requirement for a diagnosis, which requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 – i.e., a diagnosis that conforms to the DSM. 38 C.F.R. § 3.304. Thus, the diagnosis of PTSD is a complex medical question and the Veteran has not been shown to possess the requisite expertise or knowledge to diagnose it. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness); see also Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran’s lay belief that his schizophrenia and anti-psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA’s duty to seek a medical opinion on the issue). With regard to service connection for a psychiatric disorder, other than PTSD, it is acknowledged that no psychiatric disability was diagnosed during service. As noted, treatment records after 2015 document adjustment disorder with depressed mood. Said disability was diagnosed after the Veteran’s separation from service, and there is no indication that psychosis had its onset during or within one year of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The determinative question in this case involves causation. On the question of medical causation, there is no competent medical evidence that the condition is related to service. 38 C.F.R. § 3.303(d). The Board acknowledges the Veteran’s assertion that he does in fact have PTSD, and his statements regarding his symptoms. While the Veteran is certainly competent to report his own symptoms, he is not shown to have the training, medical expertise, or credentials to competently diagnose a psychiatric disability. See King v. Shinseki, 700 F.3d 1339 (2012). Significantly, regarding his adjustment disorder with depressed mood, the Veteran does not report that his psychiatric symptoms began in service and have been persistent since that time. Based on the foregoing, the Board finds the preponderance of the probative and persuasive evidence against a finding that acquired psychiatric disability, to include PTSD, arose in service or is etiologically related to service or any incidents therein. Moreover, a psychosis was not shown within one year following discharge from service, and the provisions regarding continuity are not for application. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b). In sum, as the Board finds that there is no competent medical evidence of a diagnosis of PTSD that meets the DSM requirements, and given the weight of the objective, persuasive evidence against a finding that any other psychiatric disorder is causally related to service, the Board finds that the preponderance of the evidence is against the claim that any psychiatric disorder was incurred in or in any way related to service. As such the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). 5. Entitlement to a rating higher than 20 percent for a thoracic spine disability, with 7th and 8th vertebra fracture and lumbar mechanical pain The Veteran claims that he is entitled to a higher disability rating for his thoracic spine disability (the back). The regulations provide for evaluation of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), 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, The Spine, Note (6). The Veteran’s service-connected thoracic spine disability is rated under Diagnostic Codes 5237-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability 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 where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. VA treatment records during the period on appeal recorded complaints of back pain. On VA examination in December 2015 recorded complaints of worsening back pain treated with ibuprofen and muscle relaxants with some relief. The Veteran denied flare-up in symptoms, functional loss or functional impairment as a result of his back disorder. Examination revealed forward flexion to 70 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was no additional loss of motion on repetitive motion. There was no pain on weightbearing. There was no objective evidence of localized tenderness, pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, or guarding or muscle spasms. The examiner found no evidence of radiculopathy, ankylosis or IVDS. Initially, the Board notes that throughout the period on appeal the Veteran has not reported physician-prescribed bed rest. Additionally, none of the treatment records treatment records show incapacitating episodes as defined by VA regulation. Moreover, the VA examiner in 2015 specifically found no evidence of IVDS. As such, the Veteran does not satisfy the criteria for an increased rating under Diagnostic Code 5243 for IVDS because the record does not show documented periods of acute signs and symptoms of IVDS that required bed rest prescribed by a physician and treatment by a physician. Accordingly, the Board finds that the Veteran is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent. To warrant a 40 percent rating there must be forward flexion of the thoracolumbar spine of 30 degrees or less. 38 C.F.R. § 4.71a. During this period, the only recorded range of motion findings show Veteran’s flexion was noted to be 70 degrees with no pain, and the combined range of motion of the thoracolumbar spine was greater than 120 degrees. There was no evidence that the Veteran experiences additional limitation due to pain on repetition. 38 C.F.R. § 4.40, 4.45. With regard to repeated use over time and flare-ups, the Board notes that the Veteran denied flare ups at the examination. Thus, there was no need for the VA examiner to “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered” during flare ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Likewise, it was not necessary for the examiner to provide an opinion as to any additional loss of range of motion during a period of flare up. Id. Thus, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Consideration has been given to assigning a separate rating for neurological abnormalities related to the lumbar spine disability. There is no reliable objective evidence of any neurological abnormalities, including radiculopathy, bladder or bowel dysfunction, of the thoracic spine that would provide adequate information to assign any separate compensable rating. For this reason, separate ratings for objective neurological abnormalities are not warranted. In conclusion, the Board has carefully considered the lay and medical evidence of record, and finds that the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a disability rating higher than 20 percent for the thoracic spine disability. As such, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. (Continued on the next page)   Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Here the evidence of record, to include VA treatment records and examination reports, show that the Veteran remains employed as a truck driver. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana