Citation Nr: 20002691 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 11-01 892 DATE: January 13, 2020 ORDER Entitlement to a rating in excess of 50 percent prior to November 28, 2017 and in excess of 70 percent thereafter for adjustment disorder is denied. A rating in excess of 40 percent for myositis of the lumbar spine is denied. An extraschedular evaluation for myositis of the lumbar spine is denied. FINDINGS OF FACT 1. Prior to November 28, 2017, the Veteran’s adjustment disorder was not manifested by occupational and social impairment with deficiencies in most areas. 2. From November 28, 2017, the Veteran’s adjustment disorder was not manifested by total occupational and social impairment. 3. For the entire appeal period, the Veteran’s myositis of the lumbar spine has been manifested by subjective chronic back pain and objective limited range of motion, without ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). 4. For the entire appeal period, the Veteran’s myositis of the lumbar spine has not presented such an exceptional or unusual disability picture that renders the available schedular ratings inadequate. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent prior to November 28, 2017 and in excess of 70 percent thereafter for adjustment disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9440. 2. The criteria for a rating in excess of 40 percent for myositis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5021-5237. 3. For the entire appeal period, the criteria for referral to consider an extraschedular evaluation for the service-connected myositis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5021-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1974 to February 1976 and from December 1980 to October 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 (adjustment disorder), April 2016 (myositis), and September 2016 (helpless child) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Puerto Rico. In an August 2015 decision, the Board denied a rating in excess of 30 percent for adjustment disorder. In January 2016, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s Joint Motion for Partial Remand (JMPR) and vacated and remanded that portion of the January 2015 Board decision that denied a higher rating for service-connected adjustment disorder. In a May 2016 decision, the Board granted an increased, 50 percent rating for adjustment disorder for the entire appeal period. In July 2017, the Court granted another JMPR, vacating and remanding the Board’s May 2016 denial of a higher rating for adjustment disorder. In a January 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased, 70 percent rating effective November 28, 2017. In a July 2018 decision, the Board denied a rating in excess of 40 percent for myositis of the lumbar spine; denied a rating in excess of 50 percent prior to November 28, 2017 and in excess of 70 percent thereafter for adjustment disorder; and denied entitlement to dependency benefits for A.G. as the “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. In June 2019, the Court granted the Veteran’s and the Secretary’s Joint Motion for Remand (JMR) and vacated and remanded the Board’s July 2018 decision. The Board notes that additional evidence has been added to the Veteran’s claims file after the June 2019 JMR. However, the Board finds that the additional evidence is not relevant to the issues decided herein. The issue of entitlement to dependency benefits for A.G. as the “helpless child” of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 will be issued in a separate decision. 1. Entitlement to a rating in excess of 50 percent prior to November 28, 2017 and in excess of 70 percent thereafter for adjustment disorder. The Veteran’s service-connected adjustment disorder is currently rated as 50 percent disabling prior to November 28, 2017 and as 70 percent disabling thereafter under Diagnostic Code 9440 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9440. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when there is 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. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. When determining the appropriate evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713F.3d112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as 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). Thus, the Board need not find the presence of all, most, or even some, of the listed symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713F.3d at 118. The Board is mindful that “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas” correlating with a 70 percent evaluation under the rating criteria. Bankhead, 29 Vet. App. at 19. Notably, the word “may” above is suggestive; the presence of suicidal ideation does not automatically entitle a veteran to a 70 percent disability rating simply because the phrase “suicidal ideation” is included under that percentage in the rating schedule under the relevant rating criteria. See 38 C.F.R.§§ 4.126, 4.130, Diagnostic Code 9440. Instead, the Board is compelled to review the totality of the evidence when assigning a disability rating. See 38 C.F.R.§4.2. Initially, the Board acknowledges that in the June 2019 JMR, the Court found that the Board erred in its July 2018 decision that denied higher ratings for adjustment disorder because, for the period prior to November 28, 2017, the Board failed to address a July 2009 VA psychiatry note indicating that “Appellant reported that he ‘continues to experience auditory hallucinations and hearing noises not noted by others, mostly during the night hours.” For both periods, the JMR found that the Board relied on findings from July 2009, April 2011, and November 2017 VA examiners, all of whom noted that the Veteran’s symptoms were controlled by anti-psychotic medication that he took daily, in contravention of Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Specifically, the JMR found that the Board did not discuss whether any of those three examination reports and medical opinions were adequate for rating purposes as part of its implicit finding that VA complied with its statutory duty to assist and in light of its responsibility to discuss the severity of the Veteran’s disability without consideration of the ameliorative effects of his medication. The Board will address these noted deficiencies in its analysis. Turning to the evidence of record, the Board notes that much of the relevant evidence has been laid out in detail in prior Board decisions but will be repeated in this decision for completeness. Records from the Social Security Administration (SSA) include a September 2008 functional capacity assessment referencing a June 2008 note which showed that the Veteran was alert and focused. He claimed poor impulse and behavioral control, isolation, poor tolerance to stress, and anger and explosiveness. On mental status evaluation, speech was clear, and he was cooperative. Mood was described as anxious, tense, irritable, and sad. He was logical, coherent and relevant. He verbalized anger and suicidal ruminations. There was no evidence of alleged hallucinatory episodes. Concentration and memory were variable. Judgment and insight were deficient. While the psychiatrist opined that the Veteran’s psychiatric disorder was moderately severe, the psychiatrist further opined that the disorder did not appear to be overwhelming and stated that the Veteran would be able to adjust to changes in work routines and environments and interact with the public, coworkers, and supervisors. A February 2009 VA psychiatric progress note shows that the Veteran denied any past suicidal behavior. He reported that despite taking his medications as described, he had sleep disturbances and marked irritability during the daytime. He reported that he continued to experience auditory hallucinations and hearing noises not noted by others, mostly during the night hours. Aggressive verbal behavior was described by the Veteran as his way of coping with different life stressors. He verbalized feelings of anxiety and stated that he preferred to be alone. He denied suicidal or homicidal ideas. In connection with his May 2009 increased rating claim, the Veteran underwent a VA examination in July 2009. The VA examiner noted that the Veteran had a prior overnight hospital stay due to a “parasuicidal gesture” of taking four sleeping pills, though it is unclear when that incident occurred. The Veteran reported depressed mood, irritability, and strained family relationships. Upon mental status examination, he was alert and oriented, with a guarded attitude and constricted affect, but good mood and normal behavior. His speech, thoughts, and memory were normal, without any noted delusions or hallucinations, sleep impairment, obsessive/ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. His impulse control was good without episodes of violence, and he was able to maintain minimal personal hygiene. He reported that he retired in 2000 due to eligibility by age or duration of work. The VA examiner diagnosed chronic adjustment disorder, with mixed features. The examiner opined that the Veteran’s mental disorder symptoms were controlled by continuous medication. Based on the findings of the July 2009 VA examination, the AOJ increased the Veteran’s rating for adjustment disorder to 30 percent effective June 8, 2009. In his March 2010 Notice of Disagreement, the Veteran did not specifically indicate why he believed his adjustment disorder warranted a higher rating. VA treatment records include an April 2010 psychiatric progress note which shows that the Veteran denied past suicidal behavior, homicidal ideations, and inpatient psychiatric hospitalizations; moreover, there was no evidence of perceptual disturbance or history of aggressive verbal behavior. Upon mental status examination, he was well groomed with normal speech and thoughts. There was no evidence of phobias, obsessions, delusions, or suicidal or homicidal ideas. Although some memory and concentration difficulties were evident; he was logical, coherent, relevant, and oriented. The examiner noted that the Veteran’s chronic adjustment disorder, rule out anxiety disorder, had been manageable with the assistance of medications. On an April 2011 VA mental disorders examination, the examiner noted that the Veteran’s treatment consisted of anti-psychotic and anti-depressant medications, with fair response. The Veteran reported that despite a strained relationship, he continued to reside with his son. He reported having flashback episodes, periods of irritability, and arguments with his son, but denied other symptoms. On mental status examination, he was clean and casually dressed, with normal speech, thought processes, attitude, affect, and attention. There were no delusions, sleep impairment, hallucinations, inappropriate behavior, obsessive/ritualistic behavior, or homicidal/suicidal thoughts. His impulse control was good with no episodes of violence, and he was able to maintain minimum personal hygiene. The examiner noted that the Veteran was able to manage his financial affairs on his own. The Veteran explained that he had worked for 26 years as an Army Recruiter and retired in 2000 due to age or duration of work. In June 2011, the Veteran denied insomnia, auditory/visual hallucinations; nervousness; depressed mood; problems at work or with his family; problems making friends; or suicidal ideation. At an October 2013 VA treatment appointment, the Veteran indicated that he had never attempted suicide. He responded “no” to the question of whether he had ever thought about taking his life. VA treatment notes dated from February 2016 through January 2018 show that the Veteran denied suicidal ideation (February 2016, March 2016, June 2016, September 2016, February 2017, March 2017, September 2017, January 2018) as well as hallucinations (September 2016). Most recently, upon VA examination in November 2017, a VA examiner concluded that the Veteran’s psychiatric symptoms of depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment, and disturbances of motivation and mood resulted in 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 reported that he had three children and one grandchild and lived with his nineteen-year old son, who administered his medications. He said that he worked as a recruiter for the Army but only worked approximately two days per week. He denied having any hobbies or religion. The examiner observed in the Veteran severe anxiety and motor restlessness; problems with attention; and difficult to keep on task. The examiner indicated that the Veteran was capable of managing his financial affairs. For the period prior to November 28, 2017, the Board continues to find that a rating in excess of 50 percent is not warranted. In this regard, the medical evidence shows restricted affect, impoverished speech, variable memory and memory difficulties, deficient judgment and insight, disturbances of mood, impaired thought processes, and strained relationships with his son; symptoms that the Board finds to be consistent with a rating that contemplates occupational and social impairment with reduced reliability and productivity. During this time period, he was shown to be able to maintain minimum personal hygiene and had normal speech, thought processes, attitude, affect, and attention. His impulse control was good without any indication of violence. The April 2011 VA examiner wrote that the Veteran was able to manage his financial affairs on his own. In order to warrant a higher rating, the evidence would need to show that the Veteran suffered from occupational and social impairment with deficiencies in most areas or from total occupational and social impairment. The Board is cognizant that in February 2009, the Veteran reported auditory hallucinations, mostly during the night hours, and that he reported a history of suicidal ruminations and reported at his July 2009 VA examination a parasuicidal gesture of ingesting four sleeping pills. The Board finds these noted symptoms to be serious and contemplated by the 70 and 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the Board must look to the severity, frequency, and duration of the Veteran’s suicidal ideation in assessing the appropriate rating; in doing so, the Board does not find that such has risen to the level contemplated by the 70 or 100 percent disability ratings. As noted above, in contrast to the SSA 2008 functional capacity assessment where the Veteran referenced suicidal ruminations, or the parasuicidal gesture referred to at the July 2009 VA examination, the Veteran has repeatedly denied to his providers past suicide attempts, suicidal ideas, or suicidal ideation. See VA treatment notes dated February 2009, April 2010, June 2011, October 2013, February 2016, March 2016, June 2016, September 2016, February 2017, March 2017, September 2017. In comparing the history of suicidal ruminations and parasuicidal gesture of taking four sleeping pills, with the subsequent instances where the Veteran denied present and past suicidal ideation, the Board finds that in this case, the presence of suicidal ideation does not automatically entitle the Veteran to a 70 percent rating simply because the phrase “suicidal ideation” is included under that percentage in the rating schedule. See Bankhead, supra. The Board also notes that the June 2019 JMR referenced and asked the Board to address a July 2009 VA psychiatric note indicating that the Veteran reported that he “continues to experience auditory hallucinations and hearing noises not noted by others, mostly during the night hours.” It appears that the psychiatry note is dated in February 2009, not July 2009. With respect to the February 2009 notation that the Veteran reported auditory hallucinations, mostly at night, the Board has compared that treatment note to the other instances where the Veteran has denied experiencing hallucinations. See September 2008 SSA records; VA treatment notes dated April 2010 (no perceptual disturbance) and September 2016; VA examination reports dated July 2009 and April 2011. Put another way, the Veteran’s hallucination symptoms were not only inconsistent, but were endorsed only one time over the course of the ten-year appeal period. They appear to have stopped after February 2009, as they were never endorsed again. The Board finds that such presentation does not render the Veteran’s disability picture more analogous to a 70 percent rating, taking into account the other symptoms, the repeated denials of hallucinations, and the Veteran’s comprehensive psychiatric disability picture. Similarly, from November 28, 2017, the Board finds that the Veteran’s psychiatric symptoms do not more closely approximate total occupational and social impairment. In order to warrant an increased, 100 percent disability rating, there must be total occupational and social impairment, or approximation of such 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. See 38 C.F.R. § 4.130, Diagnostic Code 9440. Notably, the evidence does not show that the Veteran endorsed any of the symptoms contemplated by a 100 percent rating, nor do the symptoms rise to the level of total occupational and social impairment. Indeed, the evidence from the November 2017 VA examination shows that the Veteran continues to live with his son, despite a strained relationship, and has been able to work at least two days a week on commission for the Army. He denied having hobbies or partaking in any religion, however, the VA examiner noted that the Veteran was able to manage his own financial affairs, a factor weighing against a finding that the Veteran’s adjustment disorder rendered him totally occupationally and socially impaired. Lastly, for both rating periods, the Board will address the directive in the June 2019 JMR to provide an adequate statement of reasons or bases that discusses the adequacy of the July 2009, April 2011, and November 2017 VA examination reports and opinions in light of its obligation not to consider the ameliorative effects of the Veteran’s medication. In those examination reports, the examining physicians noted that the Veteran’s symptoms were controlled by anti-psychotic medication that the Veteran took daily. The JMR noted that the Board “may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The JMR found that the Board did not discuss whether the July 2009, April 2011, and November 2017 VA examination reports and medical opinions were adequate for rating purposes as part of its implicit finding that VA complied with its statutory duty to assist and in light of its responsibility to discuss the severity of the Veteran’s disability without consideration of the ameliorative effects of his medication. However, the Board notes that the plain language of the criteria for noncompensable and 10 percent ratings under the General Rating Formula for Mental Disorders specifically contemplate the effects of medication. Consequently, Jones does not apply, and the Board’s evaluation of the Veteran’s adjustment disorder may include the ameliorative effects of medication. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). The Court itself has addressed the argument of whether the ameliorative effects of medication may be taken into account only in determining whether a veteran is entitled to a noncompensable or 10 percent evaluation under the General Rating Formula for Mental Disorders (in that case, under Diagnostic Code 9411) because the criteria for those evaluations specifically mention medication, whereas the criteria for the higher evaluations under the General Rating Formula do not. In Sims v. McDonald, 2015 U.S. App. Vet. Claims LEXIS 109 (January 30, 2015), the appellant argued that the Board erred in considering the ameliorative effects of his psychiatric medication in denying a rating in excess of 70 percent for his service-connected PTSD, an argument that the Court found unavailing and unpersuasive. The Court wrote that “the structure of DC 9411 supports that ameliorative effects be considered at higher disability levels because it provides for a noncompensable evaluation when, inter alia, PTSD symptoms do not require continuous medication for control; a 10% evaluation when, inter alia, PTSD symptoms are controlled by continuous medication; and, by implication, a higher evaluation (30%, 50%, 70%, or 100%) when PTSD symptoms evincing greater severity are not controlled by continuous medication. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Court in Sims, in affirming the Board’s decision, concluded that like the Diagnostic Codes for evaluating fibromyalgia and bronchial asthma, Diagnostic Code 9411 did not foreclose VA’s consideration of the remedial effects of medication. Similarly, in Nickerson v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1508 (Oct. 19, 2017), the Court wrote: “[t]he General Rating Formula for Mental Disorders, like the rating criteria for fibromyalgia discussed in Jones, expressly authorizes VA to account for the ameliorative effects of medication when evaluating mental disorders.” Consequently, Jones does not apply, and the Board’s evaluation of the Veteran’s adjustment disorder properly included the ameliorative effects of medication. Notwithstanding the holding of McCarroll, the Board finds the July 2009, April 2011, and November 2017 VA examinations and reports are adequate for rating purposes. In that regard, the examiners reviewed the record, cited to evidence in the record, and have the appropriate training, expertise and knowledge to evaluate this disability. In sum, the Board concludes that the preponderance of the evidence weighs against the Veteran’s claim of entitlement to an increased rating in excess of 50 percent for adjustment disorder prior to November 28, 2017, and in excess of 70 percent thereafter. The preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must therefore be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 40 percent for lumbar spine myositis, to include the issue of whether an extraschedular referral is warranted. The Veteran’s service-connected myositis of the lumbar spine is rated as 40 percent disabling from June 29, 2011 under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5021-5237, indicating myositis rated by analogy to lumbosacral strain. See 38 C.F.R.§4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5021, 5237. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals of injury or disease. 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. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 for the cervical spine is 340 degrees, and the normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). IVDS may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS). See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating IVDS. For the purposes of evaluations under that Formula, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Board notes here that the provisions for evaluation IVDS do not warrant an increased disability rating for the Veteran’s myositis of the lumbar spine for any period on appeal because the probative evidence of record does not document incapacitating episodes with bed rest prescribed by a physician for any period on appeal. The General Formula also directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). However, the probative evidence of record does not document associated objective neurologic abnormalities or findings related to the Veteran’s thoracolumbar spine condition for any period on appeal. See April 2016 VA examination report. Turning to the facts, an April 2016 VA examination report was accepted by the RO as an informal claim of entitlement to an increased rating for the Veteran’s myositis of the lumbar spine. At that examination, the Veteran stated that he had less capacity to conduct household activities and that he experienced flare-ups that required him to stay in bed and use pain medication. He described functional impairment manifesting in an inability to walk or carry heavy objects. On range of motion testing, the Veteran had forward flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 20 degrees. Pain was noted on examination and caused functional loss on forward flexion. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The examination was not conducted during a flare-up, and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. When asked to opine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups, the examiner wrote that all musculoskeletal disorders present in an individual could potentially cause functional limitations during repetitive use over a period of time or during a flare-up; however, to describe a functional limitation in terms of severity based on a possible future event would be mere speculation. Notably, there was no evidence of ankylosis or IVDS. An April 2016 rating decision continued the 40 percent rating assigned. The Veteran disagreed with the April 2016 rating decision in a May 2016 Notice of Disagreement but did not contend why he believed he was entitled to a higher rating for his myositis or indicate what percentage he believed best represented his lumbar spine disability. March 2017 and September 2017 VA treatment notes show that the Veteran sought treatment for low back pain; on physical examination he had full range of motion on his back flexion and extension. In January 2018, the Veteran underwent steroid injections into his back. In light of the lay and medical evidence of record, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal period. The Veteran has been in receipt of a 40 percent rating for his lumbar spine degenerative disc disease for the entire appeal period; such rating is the highest available for limitation of range of motion. The only available ratings in excess of 40 percent ratings are 50 percent, which requires unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent, which requires ankylosis of the entire spine. No objective medical evidence has shown any ankylosis of the Veteran’s spine, and the Veteran has not indicated as much. Indeed, as recently as September 2017, the Veteran showed full range of motion in his back, as noted in a VA treatment note. The Veteran has never alleged, and the evidence has never shown, that the Veteran’s lumbar spine is ankylosed, either favorably or unfavorably. As such, a rating in excess of 40 percent is not warranted at any time during the course of the appeal under the General Rating Formula. Moreover, because the findings above satisfy the highest rating criteria for limitation of motion of the lumbar spine, the Board need not consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board is cognizant that the Court, in its June 2019 Order granting a JMR, found that the Board errs when it relies on an examination report in which the examiner states that it is not possible to describe additional functional loss during flares (or repeated use over time) without directly observing function during a flare. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Indeed, the Court found that the Board did not consider or discuss the aforementioned law or the relevant portions of the April 2016 VA examination report in making its implicit finding that VA had satisfied its statutory duty to assist. The Board has therefore considered in detail Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), where the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, and agrees with the Court that the April 2016 VA examination report is not in full compliance with the holding of Sharp. However, given that the Veteran is receiving the maximum rating based on limitation of motion of the lumbar spine and a higher rating requires unfavorable ankylosis, the Board finds that there is no prejudice in the April 2016 VA examination not having completely conformed to Sharp. In other words, since the evidence to date shows the Veteran can move his spine, to include in full flexion as recently as September 2017, and he himself does not allege that ankylosis has been present at any time, a remand to secure additional range of motion testing and a Sharp-compliant examination would not avail the Veteran and would only serve to needlessly delay the Veteran’s case. As noted above, the Veteran has made no specific contentions regarding the severity of his lumbar spine disability since the April 2016 VA examination as would warrant a Remand to obtain an updated examination, nor has he or his attorney ever suggested that he suffers from ankylosis. The Board simply finds no basis on which to remand the case for a new examination or direct continued development. In sum, throughout the entire appeal period, the Veteran met the criteria for a rating of 40 percent, but no higher, for lumbar spine myositis. A rating in excess of 40 percent is denied because at no point has the Veteran had ankylosis of the thoracolumbar spine or IVDS resulting in incapacitating episodes. Entitlement to an extraschedular evaluation for lumbar spine myositis The June 2019 Order granting the JMR also states that the Veteran alone contends that the issue of referral for extraschedular consideration under 38 C.F.R. § 3.321(b) was reasonably raised by the record and that the Board erred by not addressing that issue. Particularly, the Veteran asserts that there are unique symptoms related to myositis that are not contemplated by the rating criteria. As noted, the Veteran has been in receipt of a 40 percent rating for his lumbar spine myositis for the entire appeal period based on severe limitation of motion of the lumbar spine. The Board herein has found that the Veteran is not entitled to a rating in excess of 40 percent, as his lumbar spine is not ankylosed. The VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321(b)(1). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. Id. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has carefully compared the level of severity and symptomatology of the Veteran’s service-connected myositis with the established criteria found in the rating schedule. The Board finds that the Veteran’s lumbar spine symptomatology is fully addressed by the rating criteria under which the disability is rated. In this regard, the Veteran has stated that his lumbar spine disability manifests in pain, difficulty walking, and difficulty carrying heavy objects. See April 2016 VA examination report. At that time, he also stated that he had less capacity for household activities, and that during a flare-up, he required bed rest and pain medications. The April 2016 VA examiner noted that the Veteran would have restrictions on back twisting, extreme bending, heavy lifting, carrying, pushing, or pulling, prolonged standing, or prolonged ambulation activities. VA treatment records show ongoing complaints of and treatment for low back pain in the form of steroid injections. The Board finds that the symptomatology and functional impairment described above result from limitation of motion of the lumbar spine, to include as due to pain, weakness, fatigability, and other DeLuca factors, and all the symptoms described by the Veteran are contemplated in the schedular rating assigned under Diagnostic Code 5021-5237 directly as limitation of motion, or indirectly as orthopedic factors that limit motion and function, such as pain, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 206-207. Specifically, with respect to functional limitation and impairment due to pain, bending, twisting, difficulty walking, difficulty carrying objects, difficulty with prolonged standing or prolonged ambulation activities, all such impairment is specifically contemplated in the schedular rating criteria. See 38 C.F.R. § 4.45 (pain on movement; instability of station; disturbance of locomotion; interference with sitting, standing and weight-bearing). As such, the Board finds that the rating schedule is adequate to evaluate the Veteran’s disability picture. Therefore, the Board need not proceed to the second Thun factor, namely, whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Accordingly, the Board finds that referral for extraschedular consideration is not warranted for the lumbar spine for any part of the rating period on appeal. Irvin Cannaday Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.