Citation Nr: 21004656 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-42 075 DATE: January 27, 2021 ORDER A rating in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to May 15, 2019, and in excess of 70 percent thereafter, is denied. A rating in excess of 10 percent for lumbar spine degenerative joint disease (back disability) prior to May 13, 2019, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. At no time over the entirety of the periods on appeal, has the Veteran been shown to have total occupational and social impairment. 2. For the period on appeal prior to May 15, 2019, the Veteran’s psychiatric symptomatology most closely aligns with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. At no time over the entirety of the periods on appeal, has the Veteran ever been found to have ankylosis in the spine. Nor has the Veteran ever been found to have had any incapacitating episodes of intervertebral disc syndrome (IVDS) requiring bed rest to be prescribed. In addition, the Veteran has never been found to have his range of motion (ROM) for forward flexion of the thoracolumbar spine functionally limited to 30 degrees or less. 4. For the period on appeal prior to May 13, 2019, the Veteran’s forward flexion ROM for his thoracolumbar spine was not shown to be functionally limited to 60 degrees or less, nor was his combined ROM 120 or less. Nor was the Veteran found to have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD prior to May 15, 2019, and in excess of 70 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.27, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 10 percent for a back disability prior to May 13, 2019, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1995 to December 2015. The matter is on appeal before the Board from March 2016 and December 2016 rating decisions. In March 2019, the Board remanded the issues for further development. Increased Ratings PTSD Procedurally, the Veteran was granted service connection for an adjustment disorder with depressed mood in a December 2016 rating decision, with a 30 percent evaluation effective January 1, 2016, the day after his discharge from active duty. In both December 2016 and February 2017, the Veteran filed a Notice of Disagreement (NOD), in which he disagreed with the initial 30 percent evaluation. After the issuance of a Statement of the Case (SOC) in July 2017, the Veteran filed a VA Form 9 Appeal to the Board in August 2017. In March 2019, the Board remanded the issue to provide the Veteran with a new VA examination. Subsequently, a September 2020 rating decision recharacterized the Veteran’s adjustment disorder with depressed mood as PTSD and granted the Veteran a 70 percent rating for his PTSD effective May 15, 2019, the date of the VA examination showing an increase was warranted. The increased rating constitutes a partial grant of benefits, and therefore the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s PTSD is rated under DC 9411, which is rated under the General Rating Formula for Mental Disorders. The provisions pertinent to this case are as follows: 100 percent: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 70 percent: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50 percent: 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. 30 percent: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s social and occupational impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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, and therefore the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. May 15, 2019 and Thereafter At no time over the entirety of the periods on appeal, have the Veteran’s treatment records shown findings consistent with a rating in excess of 70 percent. That is, during no distinct period of time has the Veteran’s psychiatric symptomatology been shown to have caused total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As such, a rating in excess of 70 percent is not warranted at any time. The Veteran most recently underwent a VA examination in October 2019, at which the VA examiner reported that the Veteran’s diagnosis of PTSD was a progression of his original service-connected adjustment disorder with depressed mood. The examiner found that the Veteran’s PTSD symptomatology was best described as causing occupational and social impairment with reduced reliability and productivity That is, the examiner felt the Veteran’s psychiatric symptomatology were most consistent with a 50 percent rating. Pertaining to relevant social and family history, the Veteran reported that he was close with his family, and that he frequently talks to his parents and his sister. He noted that he has very few friends and that he has isolated himself from his friends, and that he has found it difficult to make new ones. The Veteran relayed that he had been married for six years, but that he was divorced. He reported having two children with whom he talks on the phone, but does not often see. In addition, he relayed that due to his PTSD symptoms he has found dating to have become increasingly difficult. As to occupational and educational history, the Veteran was noted to have not worked since he retired from the army in December 2015, however, he did graduate from college post-military with a Bachelor of Arts in Professional Studies. The examiner found the symptoms that actively applied to the Veteran’s diagnosis to included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work like setting), and impaired impulse control (such as unprovoked irritability with periods of violence). The Veteran also underwent a contract VA examination in May 2019, at which the contract VA examiner found that the Veteran’s PTSD symptomatology was best described as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Pertaining to relevant social and family history, the Veteran reported that he had married at age 26 and divorced at age 33. He noted that the marriage had been difficult up until the divorce, including his wife’s infidelity. He relayed that since his separation from the military his family life had been “rocky” because he was going through conflicts with his former wife related to child support and visitation. He reported financial stress and legal challenges associated with child support and visitation. As to occupational and educational history, the Veteran noted that he had not been employed since his retirement from the military, but that he had completed his bachelor’s degree in May 2019. Pertaining to relevant mental health history, the Veteran reported that since being discharged his emotional reactions to visual and olfactory triggers had increased, which he associates with active duty service including but not limited to images of dead bodies, smells of burned tissue, and stories of military events. He noted dysregulated mood, restlessness, agitation, hypervigilance, and angry outbursts since being discharged secondary to the above noted triggers or reminders of service experience. As to relevant behavioral history, the Veteran noted that he was currently described as being less socially active, but that there were no overt behavioral problems, particularly as long as he limits interpersonal contact with longstanding peers/fellow Veterans. The examiner found the symptoms that actively applied to the Veteran’s diagnosis to include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. A review of the Veteran’s VA treatment records from May 15, 2019 and thereafter does not reflect and findings of any greater significance than those relayed in the above VA examinations. Based upon the foregoing, a rating in excess of 70 percent from May 15, 2019 and thereafter is not warranted. At no time has the Veteran been shown to have total occupational and total social impairment. Clearly, the Veteran has some social contacts including for example his children, and therefore he does not have total (meaning all) social impairment. As such, a rating in excess of 70 percent from May 15, 2019 and thereafter is not warranted. Prior to May 15, 2019 A review of the record prior to May 15, 2019, reflects that a rating in excess of 30 percent is not warranted. That is, prior to May 15, 2019, the Veteran’s record shows that his symptomatology most closely aligns with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The Veteran underwent two VA mental disorders examinations prior to May 15, 2019, one in November 2016, and one in July 2015 prior to his separation from service. At the November 2016 VA examination, the examiner provided the Veteran with a diagnosis of adjustment disorder with depressed mood and found that the Veteran’s symptomatology most closely reflected that a mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Pertaining to relevant social and family history, the Veteran was noted to have gotten a divorce eight years earlier from a marriage that had lasted six years. He reported having marked custody issues with his ex-wife. As to relevant mental health history, the Veteran relayed that his depression had been ongoing since he went to Iraq in 2003. He stated that it had been getting worse over time. It was noted that the Veteran currently sleeps four to five hours per night, that his energy tends to be up or down, that he tends to isolate himself more, and that he has some issues with irritability. The Veteran denied issues concentrating, suicidal thoughts or attempts, violent behavior, and panic attacks. He reported that he did not receive any mental health care while he was in the service, but that he had begun to seek care in the summer of 2016. The examiner found the symptoms that actively applied to the Veteran’s diagnosis to include depressed mood, chronic sleep impairment, disturbances of motivation and mood, and irritability. At the July 2015 VA examination prior to the Veteran’s separation from the military, the examiner did not find the Veteran to have a diagnosed mental disorder. Under the section pertaining to the Veteran’s relevant social and family history, it was noted that the Veteran had a “very good” relationship with his sister. He relayed that he speaks with his parents and his sister daily. He reported that he had been married for almost six years, but had divorced in November 2008 due to his ex-wife’s infidelity and unsupportive attitude. He noted that he currently had temporary custody of his children, and that the majority of his time was spent in activities with his children. Pertaining to occupational and educational history, the Veteran reported that he attended college and had obtained 100 credits in general studies. He relayed that he planned to complete his BA prior to obtaining employment in logistics. A review of the Veteran’s VA treatment records prior to May 15, 2019 reflects that he has participated in some group therapy, as well as some individual therapy. In January 2019, the Veteran was seen for individual therapy, at which time he was noted to endorse symptoms of discomfort in large crowds, difficulty with getting to sleep and staying asleep, and hypervigilance. The Veteran was assessed as being unable to establish personal relationships. The Veteran also reported some symptoms of depression and anxiety. An appointment for individual therapy from December 2018 also noted that the Veteran endorsed symptoms of hypervigilance, disturbed sleep, and a dislike of crowds. In April 2017 at a caregiver program eligibility assessment, the Veteran reported that he has trouble with sleep, has nightmares, is hypervigilant, and has flashbacks. He noted that he has problems with short term memory, such as he forgets conversations, loses objects, and has problems staying on task. He denied hallucinations and delusions. He relayed having trouble regulating his moods, such that he goes from calm to angry and gets verbally aggressive. It was noted that the Veteran was currently attending college and that he had stated he had a B average. At a mental health initial intake appointment in June 2016, the Veteran reported having trouble sleeping, and that he averages five hours of sleep per night. He noted having difficulty adjusting to civilian life, that is having “lots of time” on his hands, his friends still in the army, and difficulty keeping busy. He denied any history of mental health treatment or taking any psychotropic medications. He also denied the need for a psychiatric advance directive. The Board notes that in the Veteran’s VA Form 9 Appeal to the Board from August 2017, that he reported having panic attacks at least two to three times per week, flashbacks, short- and long-term memory loss, and impaired judgment and abstract thinking. Based upon the foregoing, a rating in excess of 30 percent prior to May 15, 2019 is not warranted. The November 2016 VA examination reflects that the Veteran’s symptomatology most closely aligns with a noncompensable evaluation. However, the record reflects that the Veteran’s symptomatology prior to May 15, 2019 most closely aligns with a 30 percent evaluation showing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The Veteran’s VA treatment record reflects symptoms of discomfort in large crowds, difficulty with getting to sleep and staying asleep, and hypervigilance. Reports from the Veteran of depression, anxiety, irritability, short term memory problems, and flashbacks are also noted in his treatment records. However, while the Veteran reported in his VA Form 9 having panic attacks at least two to three times per week, short- and long-term memory loss, and impaired judgment and abstract thinking, his treatment records do not provide any medical findings consistent with the Veteran’s complaints. That is, there are no medical findings, or complaints or treatments showing that he suffers from any of these symptoms to an extent that would warrant a rating higher than 30 percent prior to May 15, 2019. Rather, the Veteran’s complaints pertaining to memory loss appear to most closely align with mild memory loss based upon the record. In addition, the record does reflect that the Veteran attended college during this time period, and that he reported maintaining a B average, which would be difficult to do if the Veteran were suffering from both short- and long-term memory loss as well as impaired judgment and abstract thinking. Outside of his complaints of panic attacks that were voiced in his VA Form 9, which were similarly noted in his NOD, there are no other complaints of any panic attacks in his treatment record prior to May 15, 2019. Also, the record does reflect the Veteran to have good successful relationships with his parents and his sister. As such, the Board finds that the Veteran’s symptomatology prior to May 15, 2019 is most closely aligned with a 30 percent rating, and therefore, a rating in excess of 30 percent is not warranted. Accordingly, a rating in excess of 30 percent for PTSD prior to May 15, 2019, and in excess of 70 percent thereafter, is denied. Back Disability Procedurally, the Veteran was granted service connection for his back disability in a March 2016 rating decision, with a 10 percent evaluation effective January 1, 2016, the day after his discharge from active duty. In February 2017, the Veteran filed a NOD, in which he disagreed with the initial 10 percent evaluation. After the issuance of a SOC in July 2017, the Veteran filed a VA Form 9 Appeal to the Board in August 2017. In March 2019, the Board remanded the issue to provide the Veteran with a new VA examination. Subsequently, a September 2020 rating decision granted the Veteran a 20 percent rating for his back disability effective May 13, 2019, the date of the VA examination showing an increase was warranted. The increased rating constitutes a partial grant of benefits, and therefore the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s back disability is rated under DC 5242. Spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. Over the periods on appeal, the Veteran has been provided with VA examinations pertaining to his back disability. At no time during the entire period on appeal has the Veteran been found to have IVDS with incapacitating episodes or been prescribed bedrest to treat his back condition. As such, the Veteran’s back disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 evaluation is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. May 13, 2019 and thereafter A review of the record over the entire period on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. Neither has his forward flexion of the thoracolumbar spine ever been limited to 30 degrees or less. The Veteran underwent VA examinations pertaining to his back condition in October 2019 and May 2019. He also underwent VA examinations pertaining to his back condition while he was still in the service in August 2015 and September 2013. At none of the four examinations was ankylosis of the spine found. It was also not shown that the forward flexion in the Veteran’s thoracolumbar spine was limited to 30 degrees or less. In addition, the Veteran’s VA treatment records do not reflect the Veteran to have ever had ankylosis of the spine, or to have his forward flexion limited to 30 degrees or less. Thus, a rating in excess of 20 percent for the Veteran’s back condition for the period on appeal beginning May 13, 2019 and continuing thereafter is not warranted. The Veteran’s most recent VA examination was in October 2019, at which he reported that he has pain three to four days a week and that it hurts to bend. He reported that he is no longer as agile as he used to be, and that on some days he is unable to do anything because of the pain. The Veteran did not report having any functional loss or functional impairment of his spine, however, he relayed having flare-ups of his back three to four times a week. He described the flare-ups as being severe and lasting several hours at a time. The flare-ups are not precipitated by anything, they just occurred out of the blue, and were alleviated by sitting or lying down, and doing absolutely nothing. ROM testing reflected forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right and left lateral flexion from 0 to 30 degrees, and right and left lateral rotation from 0 to 30 degrees. Pain was not noted on the examination. Additionally, there was no evidence of pain with weight bearing reported, nor was there evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing, and the examiner did not find there to be any additional loss of function or ROM after three repetitions. The examiner noted that the Veteran was not being examined after repetitive use over time or during a flare-up, but found the examination to be medically consistent with the Veteran’s statements describing functional loss with both repetitive use over time and flare-ups. The examiner reported that pain limits the Veteran’s functional ability with both repeated use over time and flare-ups. However, the examiner reported that they were unable to describe in terms of ROM without resorting to mere speculation. The examiner explained that there was no persistent evidence of record, that was considered to be valid or reproducible for ratings purposes, that indicated a loss of function during either of these conditions. The examiner reported that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Muscle strength and sensation to light touch was assessed, and both were found to be normal. The Veteran’s deep tendon reflexes were also assessed, which were found to be hypoactive for both his right and left knees and ankles. The Veteran did not have muscle atrophy, a radiculopathy or radicular symptoms, ankylosis, any neurologic abnormalities, or IVDS. The Veteran did not report the use of any assistive devices as a normal mode of locomotion. The examiner noted the Veteran to have 11 scars on his lower back, none of which were painful or unstable, or had a total area equal to or greater than 39 square centimeters. Imaging studies of the Veteran’s thoracolumbar spine were noted to be available that did not document arthritis. The Veteran also underwent a contract VA examination in May 2019, at which he reported having continued long-standing low back pain that had worsened somewhat over time. He relayed a variable course of some moderate days of pain and stiffness, with occasional days of much more severe pain and stiffness making walking difficult. The Veteran reported having flare-ups of his back and described them as occasional days with much more severe pain and stiffness making walking difficult. He also relayed having functional loss in terms of difficulty with squatting, bending, and carrying things. ROM testing reflected forward flexion from 0 to 70 degrees, extension from 0 to 15 degrees, right and left lateral flexion from 0 to 20 degrees, and right and left lateral rotation from 0 to 20 degrees. The examiner explained that the Veteran’s ROM contributed to functional loss by inhibiting bending, twisting, and lifting ability. Pain was noted on the examination to cause functional loss. The Veteran was reported to exhibit pain with extension, as well as right and left lateral flexion. There was no evidence of pain with weight bearing, nor was there evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing, and the examiner did not find there to be any additional loss of function or ROM after three repetitions. The examiner noted that the Veteran was not being examined after repetitive use over time, but found the examination to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner reported that pain limits the Veteran’s functional ability with repeated use over time. However, the examiner reported that they were unable to describe in terms of ROM, because there was no additional range of motion loss. Rather, the examiner explained that pain with prolonged use would limit the Veteran’s ability to continue. The examiner also noted that the Veteran was not being examined during a flare-up, but found the examination to be medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner reported that pain limits the Veteran’s functional ability during a flare-up. In terms of ROM, it was described as forward flexion from 0 to 45 degrees, extension from 0 to 10 degrees, right and left lateral flexion from 0 to 15 degrees, and right and left lateral rotation from 0 to 15 degrees. The examiner reported that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Muscle strength was assessed and found to be normal. Deep tendon reflexes were assessed, and were found to be hypoactive for both his right and left knees, while his right and left ankles were normal. Sensation to light touch was assessed, and the Veteran’s sensations were found to be decreased in the right and left upper anterior thigh and thigh/knee. Both the Right and left lower leg/ankle and foot/toes were normal. The examiner reported that the Veteran had radicular pain and other symptoms due to radiculopathy. Of both the left and right lower extremity, the Veteran was noted to have moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. No other signs or symptoms of radiculopathy were reported. The Board notes that the Veteran is service-connected for both right and left lower extremity radiculopathies. The Veteran did not have muscle atrophy, ankylosis, any neurologic abnormalities, or IVDS. The Veteran did not report the use of any assistive devices as a normal mode of locomotion. The examiner noted the Veteran to have scars on his lower back, none of which were painful or unstable, or had a total area equal to or greater than 39 square centimeters. Imaging studies of the Veteran’s thoracolumbar spine were not noted to be available. A review of the Veteran’s VA treatment records does not provide any findings of any greater significance pertaining to the Veteran’s back disability, than those from the above VA examinations for the period on appeal from May 13, 2019 and thereafter. Based upon the foregoing, a rating in excess of 20 percent from May 13, 2019 and thereafter is not warranted. At its worst, at the May 13, 2019 VA examination, the Veteran’s forward flexion was limited to 45 degrees. In addition, at no time over the period on appeal has the Veteran been found to have ankylosis of the spine. As the Veteran’s forward flexion has not been shown to be limited to 30 degrees or less, and he has not been shown to have either favorable or unfavorable ankylosis of the spine, then a rating in excess of 20 percent from May 13, 2019 and thereafter is not warranted. Prior to May 13, 2019 A review of the record prior to May 13, 2019, reflects that the forward flexion of the Veteran’s thoracolumbar spine was never shown to been limited to 60 degrees or less, nor was his combined ROM shown to have been limited to 120 degrees or less. In addition, the Veteran had not been shown to have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As previously noted, the Veteran has not been shown at any time over the periods on appeal to have either favorable or unfavorable ankylosis of the spine. Prior to May 13, 2019, the Veteran also underwent two VA examinations while he was still serving in the military. He underwent a VA examination in August 2015, at which he noted having back pain due to activities done in the military and having undergone surgery on his back in 2014. He reported having flare-ups of his back two to three times a month, and described them as a sharp pain in his back that lasts one to two days and occurs when he sits or stands for long periods of time. ROM testing reflected forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right and left lateral flexion from 0 to 30 degrees, and right and left lateral rotation from 0 to 30 degrees. Pain was noted on the examination; however, the Veteran’s ROM was reported as the same with evidence of pain. There was no evidence of pain with weight bearing, nor was there evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing, and the examiner did not find there to be any additional loss of function or ROM after three repetitions. The examiner noted that it was not possible to determine without resorting to mere speculation if additional limitation of motion would be present due to pain during a flare-up or when the joint is used repeatedly over a period of time. The examiner reported that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Muscle strength was assessed, and the Veteran was found to have normal strength. Reflexes and sensation were also assessed, which were all found to be normal. The Veteran did not have muscle atrophy, a radiculopathy or radicular symptoms, ankylosis, any neurologic abnormalities, or IVDS. The Veteran reported the use regular use of a brace for right knee pain. Imaging studies of the Veteran’s thoracolumbar spine were noted to be available that documented arthritis. The examiner noted the Veteran to have scars on his back, none of which were painful or unstable, or had a total area equal to or greater than 39 square centimeters. The Veteran also underwent a contract VA examination in September 2013, at which he reported having symptoms of spasms, decreased motion, paresthesia, and numbness in relation to his back disability. He also noted having erectile dysfunction and weakness of the leg in conjunction with his back disability. He described having moderate pain in his lower back and leg that occurs constantly, which travels to the middle of the right side of his back. The Veteran reported that he did not experience any overall functional impairment due to his back disability. ROM testing reflected forward flexion from 0 to 90 degrees, extension from 0 to 20 degrees, right and left lateral flexion from 0 to 30 degrees, and right and left lateral rotation from 0 to 30 degrees. Pain was noted on the examination; however, the Veteran’s ROM was reported as the same with evidence of pain. The examiner noted that pain could significantly limit functional ability of the joint during flare-ups or when the joint is used repeatedly over a period of time. The examiner did not provide an explanation in terms of ROM. The examination revealed evidence of radiating pain on movement with both legs. Muscle spasms were present and described as paraspinal muscle contractions, however, it was explained that the muscle spasms did not produce an abnormal gait. There was tenderness noted on the exam at the paraspinal muscle, however, regardless of the tenderness the spinal contour was preserved. There was no guarding of movement, muscle atrophy, or ankylosis of the spine. The examination revealed weakness with bending at the waist. The Veterans muscle tone and musculature was normal. There was positive straight leg raising on both the left and on the right. It was noted that there were signs of lumbar IVDS, and the examiner diagnosed the Veteran with IVDS with degenerative arthritis. The Veteran reported that his back disability had not resulted in any incapacitation in the prior 12 months. Imaging studies of the Veteran’s thoracolumbar spine were noted to be available that documented mild lower lumbar facet arthrosis. A review of the Veteran’s VA treatment records does not provide any findings of any greater significance pertaining to the Veteran’s back disability, than those from the above VA examinations for the period on appeal prior to May 13, 2019. The Board notes that in the Veteran’s VA Form 9 Appeal to the Board from August 2017, the Veteran reported having incapacitating episodes with more than five weeks of bed rest due to his back disability, however, none of the VA examinations over any period on appeal have shown the Veteran to have had any incapacitating episodes with prescribed bed rest. Additionally, the Veteran’s VA treatment records do not show the Veteran to have ever been prescribed bed rest due to incapacitating episodes for his back disability. Based upon the foregoing, a rating in excess of 10 percent prior to May 13, 2019 is not warranted. At its worst, the Veteran’s forward flexion was limited to 90 degrees and his combined ROM was limited to 230 degrees. In addition, at no time over the period on appeal has the Veteran been found to have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, nor has he been found to have ankylosis of the spine. As the Veteran’s forward flexion has not been shown to be limited to 60 degrees or less, his combined ROM has not been shown to be limited to 120 degrees or less, and he has not been shown to have either muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or to have favorable or unfavorable ankylosis of the spine, then a rating in excess of 10 percent prior to May 13, 2019 is not warranted. Over both periods on appeal, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran’s back condition. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nevertheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). It is the Veteran’s painful motion and functional loss in addition to his ROM that provide the Veteran with the compensable rating for his back condition. Accordingly, a rating in excess of 10 percent prior to May 13, 2019, and in excess of 20 percent thereafter, for the Veteran’s back disability, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.