Citation Nr: 20021213 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-20 343A DATE: March 25, 2020 ORDER Entitlement to service connection for an acquired psychiatric condition, other than posttraumatic stress disorder (PTSD) is granted as secondary to a service-connected disability. Entitlement to a rating in excess of 40 percent for arthritis of the lumbar spine (back condition) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in equipoise showing that the Veteran’s acquired psychiatric condition is caused by his service-connected back condition. 2. The Veteran’s back condition is not shown to have unfavorable ankylosis of the entire thoracolumbar spine; also, at no time during the pendency of the appeal was the Veteran shown to experience at least six weeks of incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric condition, other than PTSD have been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for a rating in excess of 40 percent for a back condition have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2016. A transcript of the hearing is of record. The Board remanded this matter in November 2016 and October 2017. The Board finds there has been substantial compliance with its October 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) 1. Entitlement to service connection for an acquired psychiatric condition, other than posttraumatic stress disorder (PTSD) Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that his psychiatric condition was caused by service and/or was caused by his service-connected back condition. Service treatment records are silent for complaints, treatment, or diagnosis of a psychiatric condition. In a February 2009 VA treatment record, the Veteran was diagnosed with bipolar disorder, depression, and personality disorder, not otherwise specified (NOS). The Board notes that the Veteran was provided a mental disorders VA examination in January 2010 which resulted in a negative opinion on secondary aggravation. However, the Board found this opinion inadequate as Veteran argued that his psychiatric condition was caused or aggravated by his back condition, but the examiner did not address the Veteran’s statements indicating a worsening of his symptoms due to pain. Therefore, the Board will not further discuss this VA opinion. In an October 2015 statement, the Veteran said that 1 month into Basic training, he was “roughed up” by a Sergeant. He said another time there was an incident where 2 Sergeants knocked his front teeth out. He said he did not report this because he was afraid of retaliation. The Veteran said he was told that medics were target practice, and therefore he felt a lot of fear that he may be killed. The Veteran also stated that when he went to barracks, his stuff had been taken, and 2 soldiers tried to attack him. He used a mop handle to protect himself and hid out. The Veteran said that he has had anxiety and depression since Basic training. He did not ask for help because he felt no one would help him. The Veteran also described how he was on ambulance detail and was upset by seeing people who had been shot. He was transferred to the hospital annex as an orderly. Finally, he said that in the community he worked in the emergency rooms for a couple of years, and that trauma he saw was upsetting. He said that it brought back lots of memories from the military. He said he had nightmares in the military as far back as basic training and after the military. He said he still had a lot of dreams about people trying to kill me or dreams that he cannot do enough to save people. The Veteran said that he finally quit hospital work because he could not handle it. At the May 2016 Board hearing, the Veteran testified that he was not treated for a psychiatric condition in service; however, he said that his job was changed in service because he could not cope with it. He said he was switched from a medic corpsman to cast man working in the hospital, which was less traumatizing. He stated that he was diagnosed with personality disorder, bipolar disorder, and depression. He said that he felt the cause of his depression would be what he had seen over the years. The Veteran also stated that his back pain contributed to depression. In a February 2017 mental disorders VA examination, the Veteran was diagnosed with persistent depressive disorder, with intermittent major depressive episodes, with current episode. The examiner noted that the Veteran’s stimulant use had exacerbated depressive symptoms in the past. The Veteran reported that he was currently experiencing depressed mood and stress secondary to VA claim issues, financial strain and impeding foreclosure of his house. The Veteran also reported that pain flare-ups contributed to depressed mood. In a separate February 2017 VA opinion, the examiner opined that it was less likely than not that the Veteran’s psychiatric diagnosis of persistent depressive disorder, with intermittent major depressive episodes, with current episode, was incurred in or caused by service. The examiner reasoned that the Veteran’s military records did not show evidence of mental health treatment, and the military separation exam indicated that the Veteran denied experiencing psychiatric problems. Additionally, the examiner stated that symptom onset appeared to be temporarily related to the Veteran’s onset of excessive substance use. The Veteran’s extensive history of cocaine use and his current diagnosis of stimulant disorder in sustained remission was not the result of the Veteran’s military service, but rather an indicator of a negative coping strategy. The examiner further opined that it was less likely than not that the Veteran’s diagnoses of persistent depressive disorder, with intermittent major depressive episodes, with current episode and stimulant use disorder in sustained remission were due to the Veteran’s service-connected lumbar spine disability. The examiner reasoned that there was no evidence in the medical records suggestive of depression or past cocaine use as being related to or caused by low back strain. Rather, medical records reviewed documented an extensive history of depressive episodes, psychiatric admissions, and residential treatment program participation as being secondary to psychosocial stressors, namely finances, housing, family issues/low social support, and VA claim issues. The examiner said that medical records also documented depressed mood had occurred in the context of and been exacerbated by Veteran’s substance use. During the exam, the examiner noted that the Veteran reported that his current depressed mood was primarily related to finances, housing foreclose, and VA claim issues. The examiner further stated that baseline could not be established as the onset of depressed mood was temporally related to the Veteran’s extensive substance use, and substance use was known to exacerbate psychiatric disorders. Medical records documented a history of exacerbated depressed mood with psychotic features and suicidal ideation within the context of substance use. There was also documented history across multiple providers in multiple VA clinical settings and systems that suspected malingering or over-endorsing symptoms. Therefore, a baseline could not be determined. The examiner concluded that it was less likely than not that the Veteran’s diagnoses persistent depressive disorder and stimulant use disorder were aggravated beyond their natural progression by the arthritis of the lumbar spine. Per record review, depression and cocaine use had been aggravated by psychosocial stressors, namely housing, financial strain, low social support, family conflict, and VA claim issues. Medical records and psychiatric admission notes indicated voluntary and involuntary admissions were related to depression within the context of substance use or in response to psychosocial stressors. Treatment records documented improved symptoms during periods of abstinence from substance use, stable housing, and when financial bills were perceived as manageable. The examiner stated that perceived stress aggravated the severity of the Veteran’s symptoms. The examiner was asked to list all psychiatric conditions since October 2008, and the following were noted: 1) depression/major depressive disorder, recurrent, with psychotic features/major depressive disorder, recurrent, moderately-severe/dysthymia; mood disorder NOS; cocaine dependence/polysubstance dependence/alcohol dependence; panic disorder with agoraphobia/anxiety disorder NOS; pain disorder with psychological features; adjustment reaction with mixed emotional features; cognitive disorder due to manganese exposure; personality disorder NOS; and PTSD. The examiner stated that from the above depressive disorders, it was more likely that persistent depressive disorder best captured the Veteran’s current clinical presentation given his persistent depressed mood over that past 8 years with few periods of remittance. The Veteran had reported psychotic-like features in the past, but most psychotic-like presentations had occurred within the context of substance use. The examiner said that although the Veteran did not currently exhibit symptoms of psychosis or auditory/visual hallucinations, it was likely that his current psychotropic medication managed these symptoms. In a May 2017 statement, the Veteran’s brother, L.A., said that prior to service the Veteran was very outgoing and helpful. L.A. said that after returning from service, the Veteran was withdrawn and quick to anger, had nightmares, and often moved from place to place. He recounted how the Veteran told him that he was attacked by one of his supervisors in service. In a November 2017 VA opinion, the examiner opined that it was less likely than not that the Veteran’s psychiatric condition was caused by the Veteran’s service-connected back condition. The examiner stated that without mere speculation, he could not rule out that hs medic experiences was the cause of his depression and other PTSD symptoms. In a separate November 2017 VA opinion, the examiner noted that baseline of severity could not be determined. The examiner said that regardless of established baseline, it was not at least as likely as not that the Veteran’s psychiatric condition was not aggravated beyond its natural progression. In an April 2018 addendum VA opinion, the examiner stated that it could not be said without mere speculation whether the Veteran’s psychiatric condition was caused by his back condition. In a June 2018 VA examination and opinion, the examiner opined that it was less likely as not that the Veteran’s depressive disorder was incurred in service. The examiner said that records did not evidence any mental health symptoms, diagnoses or treatment while in service. Records did not indicate mental health treatment until 1978 for symptoms related to alcohol abuse. The examiner further opined that it was less likely as not that the Veteran’s depressive disorder diagnosed since October 2007 was caused or aggravated by the Veterans service-connected low back condition. A review of records indicated an extensive history of depression including intermittent hospitalizations due to his substance abuse prior to 2007. There was no evidence that the Veteran’s low back condition aggravated or worsened his depression beyond the natural progression of the disorder. In an August 2018 private treatment record, the private physician noted that she reviewed the records, including the results of VA examinations, several VA rating decisions, and medical records, which documented both outpatient and inpatient treatment in several VA clinics. The physician opined that it was at least as likely as not that the Veteran’s service-connected back pain was correlated with his existing psychiatric conditions, including mood disorders, PTSD, and substance abuse. The examiner reasoned that the Veteran suffered from chronic back problems, which resulted from injuries sustained while the Veteran was in service, as well as chronic mental health problems since he sustained these injuries. The physician noted research had long been conducted about the relationship between chronic pain and psychiatric conditions. This research revealed that the relationship was complex and affected by many variables. However, this plethora of research documented the frequency of co-morbidity between chronic pain and several psychiatric conditions. The examiner referenced that, for example, it had been estimated that 30 percent to 80 percent of individuals with chronic pain would suffer from some form of depression. It had also been estimated that approximately 50 percent of veterans suffered from chronic pain, and half of these veterans also suffered from PTSD. Additionally, the association between chronic pain and the development of substance use disorders had been well-documented as the healthcare system struggled to address the opioid crisis within the United States. Additional post-service treatment records do not suggest a nexus between the Veteran’s psychiatric condition and service and/or the Veteran’s psychiatric condition and back. Initially, the Board finds that overall the Veteran’s psychiatric condition is not related to service. The Board notes that the clinical evidence reveals that the Veteran was not treated for a psychiatric condition until several years after service. The evidence of record reflects that the Veteran’s current diagnosed psychiatric condition began many years after his service and is not related to service. The February 2017 and June 2018 VA examiners also did not find that the Veteran’s psychiatric condition was related to service. The Board notes that the November 2017 VA examiner could not determine without mere speculation whether the Veteran’s psychiatric condition was related to service. However, the Board finds this VA opinion less probative because there was no clear opinion provided and the opinion provided was requested for secondary service connection, but given for direct service connection. The Board acknowledges the Veteran’s statements. The Veteran is competent to report symptoms of his conditions; however, he is not competent to make any such medical determination that his disorders are related to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, resolving reasonable doubt in the Veteran’s favor, the evidence shows that the Veteran’s psychiatric condition was caused or aggravated by his service-connected back condition. The Board notes that the February 2017 and June 2018 VA examiners provided opinions that this condition was not aggravated by his service-connected condition. However, the Board also notes that the October 2017 Board remand found that the February 2017 VA examiner did not consider the Veteran’s lay statements, and therefore was inadequate on this ground. In contrast, the August 2018 private physician found that the Veteran’s psychiatric condition was caused by his service-connected back condition. This opinion was based on a thorough review of the record and research on medical literature. Finally, the Board finds the Veteran’s lay testimony describing the impact of the pain from his back on his psychiatric condition probative. Therefore, giving the Veteran the benefit of the doubt, and as the evidence is at least in equipoise, the Board finds that the Veteran’s acquired psychiatric condition is caused or aggravated by his service-connected back condition. Accordingly, service connection for an acquired psychiatric condition is warranted. 2. Entitlement to a rating in excess of 40 percent for arthritis of the lumbar spine (back condition) The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS 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. Under the IVDS Formula, a spine disability is rated based on the presence of incapacitating episodes, which are periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. The Veteran’s back condition is rated 40 percent disabling under Diagnostic Code 5237, which utilizes the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under the appropriate diagnostic codes. Id. at Note (1). In a February 2009 spine VA examination, the examiner noted diagnosis of residuals arthritis of lumbar spine with history of lumbar strain. A cane and back brace were used every day as an assistive device. There was no history of hospitalization or surgery. There was a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain. Pain occurred after prolonged walking. The Veteran described his low back pain as intermittent, dull, and throbbing with some sharp pain sometimes, especially with weather changes. Severity of pain was described as severe, lasting for hours, and occurring daily. The Veteran reported flare-ups that were severe and occurred weekly. These flare-ups were precipitated by prolonged walking. During flare-ups the Veteran could not lift or do much walking. He could not walk over to his daughter’s house. The examiner stated that since the Veteran was not experiencing a flare, it would be only with speculation to report limitation in range of motion during a flare. There were no incapacitating episodes of spine disease. Upon examination, there was spasm, guarding, and pain with motion. There was no atrophy, tenderness, or weakness. The examiner noted that the muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion for flexion was to 50 degrees, with pain beginning at 40 degrees and ending at 50 degrees. There was a loss of 40 degrees motion. Range of motion for extension, bilateral lateral flexion, and bilateral lateral rotation, was the following: 0 to 20 degrees, where pain began and ended at 20 degrees. There was loss of 10 degrees motion. There was pain on active and passive motion. There was pain after repetitive use, with no additional loss of motion on repetitive use of the joint. In a January 2010 spine VA examination, it was noted that there was no history of hospitalization or surgery. A cane and back brace were used daily. There was a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain. The Veteran reported constantly dull pain; he said the severe pain came from lying in bed too long or overexertion. The pain was described as severe, constant, and daily. There were no incapacitating episodes. The Veteran was able to walk 1/4 mile. There was no ankylosis. There was spasm, guarding, and pain with motion. There was no atrophy, tenderness, or weakness. The examiner noted that there was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion was the following: flexion to 60 degrees, with pain beginning and ending at 60 degrees; extension, bilateral lateral flexion, and bilateral lateral rotation, to 25 degrees, with pain beginning and ending at 25 degrees. There was pain on active and passive motion. There was pain after repetitive use, but with no additional loss motion. Passive range of motion was unchanged from ative range of motion, and on repetitive testing, range of motion values were unchanged from baseline values reported. No pain, fatigue, weakness, or incoordination were noted. In a January 2011 VA treatment record, it was noted the Veteran had a history of osteoarthritis. The Veteran was referred to the clinic for evaluation for a back support. The Veteran arrived to the clinic without any assistive device. In a September 2013 VA treatment record, the Veteran complained of chronic lower back pain. He said it was not helped by menthol ointment, but lidocaine ointment gave some relief. In a June 2014 VA Form 9, the Veteran stated that he wore a brace for back support, and had been subscribed a cane to assist with ambulation. He said that he used a cane every day because he could barely walk on his own without it. In an April 2016 Hearing Brief, the Veteran reported that his back condition had never improved over the years. He wore a back brace and used a cane to assist with ambulation. The Veteran also experienced incapacitating episodes which required extended bed rest and medication. In an August 2014 x-ray, it was noted that there were degenerative changes at L4-5 including mild disc height loss at this level. There was minimal retrolisthesis of L4 on L5. There was no spondylosis. The vertebral body heights were maintained. There was no fracture seen. Soft tissues were unremarkable. At the May 2016 Board hearing, the Veteran testified that his back condition had worsened. He said he used a back brace, TENS unit, and took medication. He also used a cane. He said that if he lied around for too long then he would have to get up. The Veteran said that he went to the emergency room in February 2015 for a backache. He said his back went out “real bad,” and he had to take some shots and strong pain pills. In a February 2017 VA examination, the Veteran reported daily back pain. He had a TENS unit, back brace, Methocarbamol, and Neurontin. It was noted that the Veteran had x-rays that were not available for viewing. Almost daily, the Veteran had lower back pain with sudden onset of worse pain. The Veteran did not report flare-ups. The Veteran reported functional loss as being unable to move his lower back due to his pain. Upon examination, range of motion was the following: flexion to 20 degrees; extension to 10 degrees; bilateral lateral flexion to 10 degrees; bilateral lateral rotation to 10 degrees. The Veteran was noted to have very limited movement. Pain was noted on exam on rest/non-movement at forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation. There was objective evidence of localized tenderness or pain on palpation at the lumbosacral spine area. It was noted that pain was due to ankylosis. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least 3 repetitions, with no additional loss of function or range of motion after 3 repetitions. The Veteran was examined immediately after repetitive use over time, and pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over a period of time. Range of motion readings were noted to be the same as initial range of motion readings, as seen above. Further, the examination was not conducted during a flare-up. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups because the Veteran was not being examined during a flare-up. There was guarding and muscle spasm. Muscle spasm resulted in abnormal gait or abnormal spine contour. Muscle spasm was from arthritis pain in his lower back. There was localized tenderness resulting in abnormal gait or abnormal spine contour. Localized tenderness was due to muscle spasm. Guarding resulted in abnormal gait or abnormal spine contour, which was due to muscle spasm. The examiner noted less movement than normal. The examiner said that the Veteran had limited range of motion of his lower back due to abnormal stiffening and immobility of his lumbar bones due to self-fusion of the bones. There was no muscle atrophy. There was radicular pain due to radiculopathy. The examiner noted unfavorable ankylosis of the entire thoracolumbar spine. It was noted that the Veteran had IVDS, but had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. It was noted that the Veteran used a brace, cane, and TENS unit due to his ankylosis. The examiner noted that there was no prescription by the Veteran for needed bed rest since 2008. In a November 2017 back VA examination, the Veteran said pain medication did not help, and that he had to use a TENS unit and a back brace. The Veteran reported flare-ups and described it as increased pain and stiffness in the lower back. The Veteran reported functional loss as being difficult to stand, walk, lift and sit. Upon examination, range of motion was the following: forward flexion to 35 degrees; extension to 10 degrees; bilateral lateral flexion to 10 degrees; bilateral lateral rotation to 10 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on examination and caused functional loss in all ranges of motion. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion. The veteran was not examined immediately after repetitive-use over time, and the examiner determined that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time because this depended on the severity of the physical activity and how much physical activity the Veteran did. The examiner noted that the examination was not conducted during a flare-up. The examiner determined that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups because this depended on the severity of the physical activity and how much physical activity the Veteran did. There was no guarding or muscle spasm. Additional factors contributing to the Veteran’s back condition included less movement than normal due to ankylosis, limitation or blocking, adhesions, etc., disturbance of locomotion, interference with sitting, and interference with standing. There was no muscle atrophy. There was radicular pain due to radiculopathy noted. There was no ankylosis. IVDS is noted; however, there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner noted that a back brace was used. The examiner said there was objective evidence of pain on passive range of motion. There was objective evidence of pain on non-weight bearing. In a June 2018 VA examination, the Veteran did not report flare-ups. The Veteran reported functional loss and described it as being limited in walking more than half a mile, standing more than 20 minutes, bending the back, twisting the back, and lifting more than 20 pounds. Upon examination, range of the motion was the following: forward flexion to 35 degrees; extension to 10 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 10 degrees. Range of motion itself contributed to functional loss due to low back pain. Pain was noted on exam at all ranges of motion and caused functional loss. There was evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing with at least 3 repetitions with additional loss of function or range of motion after 3 repetitions due to pain. The Veteran was not examined immediately after repetitive use over time, and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner determined that pain significantly limited functional ability with repeated use over a period of time. The examiner was not able to describe this in terms of range of motion because as the Veteran was not being evaluated after repetitive use over time, it would only be speculative to report additional range of motion loss. There was no guarding or muscle spasm. Additional factors contributing to his back condition included disturbance of locomotion. Radicular pain due to radiculopathy was noted. There was no ankylosis. IVDS was noted; however, the examiner determined that the Veteran had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran used a back brace and cane. The examiner said that there was pain with active movement, passive movements, and with weight bearing. There was no objective pain with non-weight bearing. There was no change in range of motion measurements. Initially, the Board notes the Veteran has been granted separate ratings for bilateral lower extremity radiculopathy. Overall, based on the foregoing evidence, the Board finds that a rating in excess of 40 percent is not warranted. The Board notes that the February 2017 VA examiner found unfavorable ankylosis of the entire thoracolumbar spine, which would warrant a 50 percent rating; however, the overall evidence either did not document ankylosis or did not show unfavorable ankylosis. The Board acknowledges the Veteran’s lay statements that his back is worse than a 40 percent disability rating. However, again, the overall probative evidence of record does not show that the Veteran’s back condition is shown to have unfavorable ankylosis. Therefore, an evaluation in excess of 40 percent is not warranted because the Veteran has not been diagnosed with unfavorable ankylosis of the entire thoracolumbar spine, as is required for a higher rating of 50 percent. Additionally, despite having been diagnosed with IVDS, a rating higher than 40 percent is also not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes, as at no time during the pendency of the appeal was the Veteran shown to experience at least six weeks of incapacitating episodes; in fact, the Veteran was not shown during the appeal period to have been prescribed bedrest by a physician for acute flareups of his lumbar spine disability. Accordingly, an evaluation in excess of 40 percent is not warranted under the IVDS Formula in this case. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds that based on the grant of service connection for the Veteran’s acquired psychiatric condition, the Board directs the RO to implement this grant and readjudicate the issue of TDIU. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. After implementing the grant of service connection for an acquired psychiatric condition, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown, 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.