Citation Nr: 21065909 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-50 484 DATE: October 27, 2021 ORDER Entitlement to a disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) for the period prior to July 7, 2018, is denied. Entitlement to a disability rating higher than 70 percent for PTSD for the period from July 7, 2018, is denied. The reduction in rating for DJD and early DJD of the lumbar spine from 20 percent to 10 percent, effective May 1, 2018, was not proper, and restoration of the 20 percent rating is granted. Entitlement to a disability rating higher than 20 percent for degenerative disk disease (DJD) and early degenerative joint disease (DJD) of the lumbar spine for the entire period on appeal, is denied. FINDINGS OF FACT 1. For the period prior to July 7, 2018, the preponderance of the evidence shows the Veteran's symptoms to have been more clinically characteristic of those contemplated by the criteria for a 30 percent evaluation. 2. For the period beginning July 7, 2018, the Veteran's PTSD is shown to manifest in a disability picture that equates to occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood; however, the evidence of record does not show total occupational and social impairment. 3. The 20 percent rating for DJD and early DJD of the lumbar spine was reduced without observation of the provisions of 38 C.F.R. § 3.344, to specifically include whether there was "material improvement" in the condition and whether such noted material improvement reflected improvement in the Veteran's ability to function that was reasonably certain to be maintained under the ordinary conditions of life and work. 4. The preponderance of the evidence is against a finding that the Veteran's lumbar spine manifested in forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis, or incapacitating episodes of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for PTSD, for the period before July 7, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a disability rating higher than 70 percent for PTSD, for the period from July 7, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The reduction of the disability rating for DJD and early DJD of the lumbar spine from 20 percent disabling to 10 percent disabling, effective May 1, 2018, was not proper; it is therefore void, and a restoration of a 20 percent rating from May 1, 2018, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.97, DCs 5003, 5235-5243. 4. The criteria for entitlement to a disability rating higher than 20 percent for DJD and early DJD of the lumbar spine, for the period prior to May 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to October 1992 and January 2003 to June 2004, with additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision. During the pendency of this appeal, a VA RO issued a March 2019 rating decision increasing the rating for PTSD with somatic symptom disorder (claimed as depression and alcohol abuse) to 70 percent, effective July 7, 2018. However, as the RO did not assign the maximum disability rating possible or assign this rating back to the effective date of the grant of service connection, and the Veteran has not withdrawn his appeal, the appeal for a higher disability evaluation for both periods remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board also notes that during the pendency of this appeal, a September 2017 rating decision proposed a reduction in the assigned rating for the Veteran's service connected DDD and early DJD of the lumbar spine, based on a May 2017 VA examination. The proposed reduction was effectuated in a February 2018 rating decision. The Veteran has not separately appealed the reduction. However, the reduction occurred during the period of the appeal, so the Board will consider the propriety of the reduction as a downstream issue of the claim for increased rating. The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased-rating claim when such is raised by the record. Following a thorough review of the claims file, the Board notes that the Veteran filed a November 2017 Application for Vocational Rehabilitation. However, a subsequent July 2018 rehabilitation needs inventory notes that the Veteran is currently working but participating in the program to find a new job with less stress on his body to help him work longer. The Board also notes that the Veteran's combined disability rating was 100 percent from July 2018, with no service-connected disabilities individually rated at 100 percent. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary. No other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any doubt regarding the extent of the disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating higher than 30 percent for PTSD for the period prior to July 7, 2018. The Veteran contends that his service-connected PTSD is more severe than contemplated by the initially assigned 30 percent disability rating. See September 2014 Notice of Disagreement (NOD). After a thorough review of the evidence, the Board finds that a rating higher than the assigned 30 percent rating for the period before July 7, 2018, is not warranted. Evaluations under 38 C.F.R. § 4.130 are "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. The Veteran's PTSD is rated under the General Rating Formula for mental disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is assigned when the evidence shows 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when the evidence shows 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating applies when occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. When evaluating the level of disability arising from a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). However, the rating agency shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability in the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Board has reviewed post-service treatment records, including a March 2014 primary care education record that noted a positive PTSD screening. A December 2014 sleep medicine record noted the Veteran denied hallucinations. A January 2015 primary care psychology triage record noted the Veteran described his PTSD as "a social thing" which he clarified to mean he struggles with interpersonal relationships and not violence. A January 2015 primary care depression care manager assessment record noted a denial of panic attacks, hallucinations, and delusions. In separate June and July 2015 mental health telephone encounter records, it was noted that the Veteran was experiencing symptoms of depression including depressed mood, feelings of worthlessness and guilt, and fatigue. A September 2015 mental health record that noted follow-up treatment for depression. The same record noted the Veteran reported feeling better than before. A separate September 2015 primary care record noted the Veteran is prescribed medication for anxiety but has stopped taking it. This record also noted that the Veteran has seen a VA psychologist but does not want to continue or take medications at this time. The Veteran was advised to call if he changed his mind. A February 2016 sleep medicine record noted a recommendation to manage the Veteran's underlying depression to help treat sleep issues. A July 2017 primary care psychology record noted a diagnosis of adjustment disorder with mixed anxiety and depression. An August 2017 pain consultation record noted the Veteran's thought process was linear and logical without signs of delusions or hallucinations. A June 2018 primary care record noted a suicide screen wherein the Veteran denied suicidal ideation. The claims file includes an August 2013 initial PTSD examination wherein the examiner confirmed a diagnosis of chronic PTSD. 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 examination report notes the Veteran is married, reports having some friends, but limits his friends to fellow Veterans and is otherwise socially isolated. Symptoms included depressed mood, anxiety, depression, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. In an August 2017 VA review PTSD examination, the examiner confirmed a diagnosis of PTSD. The examination report only noted one diagnosed mental disorder. 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 limited VA mental health treatment since last evaluation. Symptoms include depressed mood and anxiety. The Veteran also endorsed irritability. The Veteran reported more anxiety and anger and acknowledged a fear that he will lash out and get in trouble at work. He also expressed concern about the impact of his mood and irritability on his marriage. The Veteran denied suicidal and homicidal ideation. No psychosis was noted. The claims file also includes a June 2018 VA review PTSD examination. The examiner confirmed diagnoses of mild PTSD with largely residual symptoms and persistent somatic symptom disorder with predominant pain. The examiner noted that the symptoms can be differentiated with depressed mood, anxiety, and sleep impairment is attributable to Somatic Symptom Disorder. The examiner noted there is also sleep impairment attributable to PTSD. There was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that at this point, the Veteran's PTSD is mild (largely residual). Somatic Symptom Disorder has a greater impact on current functioning. The examiner noted the combined level of social and occupational impairment is attributable to both disorders. Additionally, the examiner noted both disorders are related to military service. The Veteran was noted to be employed but had recently changed jobs because of back pain. Symptoms include depressed mood and chronic sleep impairment. The examiner noted some responses provided during the examination raised concern about overreporting of symptoms and adjustment problems. The Board also reviewed a May 2013 lay statement from the Veteran wherein he asserted he has become more disturbed and restless while sleeping due to combat experiences. Further, he reported waking up after dreaming of combat and being unemotional after the recent death of several close family members. Apart from the individual notation of suicidal ideation in the August 2013 VA PTSD examination, the record does not support symptomatology consistent with a rating higher than 30 percent. Rather, the preponderance of the evidence reflects multiple denials of suicidal ideation by the Veteran. The Board finds that the Veteran's treatment records between May 2013 and July 2018 otherwise reflect denial of panic attacks, suicidal or homicidal ideation, and negative suicide risk screens. As such, the evidence does not reflect that the Veteran's symptoms in total are of sufficient frequency and severity to cause the level of occupational and social impairment contemplated by the 50 percent rating level. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Considering the Veteran's symptomology, the Veteran's PTSD was more closely approximated by the 30 percent rating level than the 50 percent rating level during the first period on appeal. In summary, the Board finds a disability rating for PTSD higher than 30 percent is not warranted for the period prior to July 7, 2018. The Veteran's appeal to this extent is denied. In reaching the above conclusions, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 2. Entitlement to a disability rating higher than 70 percent for PTSD for the period from July 7, 2018. As noted above, a March 2019 rating decision increased the disability rating for the Veteran's PTSD to 70 percent effective July 7, 2018, the date the Veteran notified VA of his intent to file a claim. The Board reviewed a January 2019 VA review PTSD examination wherein the examiner confirmed diagnosis of PTSD and major depressive disorder (MDD). The examiner indicated the symptoms can be differentiated between diagnosis as they result from separate etiologies. Symptoms associated with his PTSD include suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Symptoms associated with his MDD include depressed mood, chronic sleep impairment, and flattened affect. The Veteran's occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported recently changing jobs in part because he was not getting along with co-workers and partly because of back pain. The Veteran is also noted to be working on a vocational rehabilitation degree. The Veteran reported experiencing depression and PTSD symptoms. He had worked with a psychologist but does not agree that his PTSD or memories will ever go away. The Veteran also reported marital difficulties and that he has become more reactive and easily agitated since the death of his father. The Veteran reported self-medicating with alcohol, drinking 30 shots of bourbon per week. Post-service treatment records relevant to this period on appeal include a June 2019 primary care progress record wherein the Veteran reported he feels depressed/discourage about the prospect of living the rest of his life in pain, but noted the Veteran denied suicidal thoughts. The same record noted a referral to mental health as the Veteran feels that current prescription medication is not working very well. The Board also notes a March 2021 VA 21-686c Declaration of Status of Dependents, wherein the Veteran reported his recent divorce. Upon review of the evidence, the Board finds that a rating higher than 70 percent is not warranted during the period from July 7, 2018. None of the VA examiners found that the Veteran's PTSD resulted in total occupational and social impairment. Much of the analysis centers around the Veteran's repeated denials of suicidal ideation. Additionally. there are no contemporary medical records reflecting that the Veteran experiences near-continuous panic or depression or delusions and hallucinations, and he has not asserted that he does indeed experience these symptoms or symptoms that are equally severe. The Board finds that the preponderance of the evidence is against a determination that the Veteran experiences total occupational and social impairment, especially since the record shows that he just received a May 2021 Associate Degree in Applied Science. The Veteran's symptoms contribute to a disability picture that most nearly approximates the criteria commensurate with the assigned 70 percent rating for the period from July 7, 2018. The evidence of record establishes that a 100 percent evaluation is not warranted at any time. Thus, as the preponderance of the evidence is against the claim for a rating higher than 70 percent for the Veteran's service-connected PTSD, there is no doubt to be resolved. An increased rating is not warranted. See 38 U.S.C. § 5107(b). 3. The reduction of the disability rating for DJD and early DJD of the lumbar spine from 20 percent disabling to 10 percent disabling, effective May 1, 2018, was not proper; the 20 percent rating is restored. The Board notes several due process protections are afforded to Veterans when a reduction in an evaluation of a service-connected disability is considered. Primarily, when the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, the RO must prepare a rating decision proposing the reduction or discontinuance that must set forth all material facts and reasons. The RO must notify the Veteran of the contemplated action and the reasons therefore, and that the Veteran has 60 days to present additional evidence showing that compensation should be continued at the present level. In addition, the RO must inform the Veteran that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice; if a predetermination hearing is timely requested, benefits payments shall be continued at the previously established level pending a final determination concerning the proposed action. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e), (i). Additional protections in any case involving a rating reduction include a requirement for the fact-finder to ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). In considering whether a reduction was proper, the Board must focus on the evidence of record available at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Board finds that the due process protections in 38 C.F.R. § 3.105(e) have been met regarding the rating reduction for DJD and early DJD of the lumbar spine. A September 2017 rating decision proposed to reduce the Veteran's disability level from 20 percent to 10 percent. He was informed of the proposed reduction in an October 2017 letter which further detailed the reasons therefor. He was also provided with more than 60 days to provide evidence that his rating should not be reduced. The RO issued a February 2018 rating decision that reduced the Veteran's disability rating for DJD and early DJD of the lumbar spine to 10 percent, effective May 1, 2018. However, the Board observes that the Veteran's 20 percent rating for DJD and early DJD of the lumbar spine was granted in a December 2004 rating decision, with an effective date from July 1, 2004. The award was effective for more than five years, and, therefore, 38 C.F.R. § 3.344(a) governs the propriety of the rating reduction to 10 percent. Under this section, a reexamination disclosing improvement is not sufficient standing alone to warrant a reduction in rating. Id. Disability ratings in effect for 5 years or more may not be reduced based on only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). The claims file contains a November 2004 VA spine examination. The examiner noted the Veteran reported being medically released from service based on his back pain. The Veteran also reported constant back pain that extends down to his left leg. Flare-ups were noted every three weeks that results in incapacitating episodes with bedrest and anti-inflammatory medication. Physical examination noted normal posture and gait. Thoracolumbar spine range of motion (ROM) was noted with forward flexion to 90 degrees, extension to 20 degrees with pain. Pain is located on the left paraspinal musculature. Tender to palpation on his left lower lumbar area and proximal sacral spine in the paraspinal region with spasms. The examiner confirmed a diagnosis of DDD and early DJD of the lumbar spine. His ROM is limited approximately 30 percent with full extension of his lumbar spine secondary to pain. The examiner also noted that the Veteran's endurance is limited, and he can only walk 0.5 miles before pain becomes incapacitating. A functional impact on the Veteran's ability to work is noted, but it is not noted to prevent the Veteran from obtaining and maintaining gainful employment. The claims file also contains an October 2013 VA back (thoracolumbar spine) conditions examination. The examiner confirmed DDD of the lumber spine. The Veteran reported participation in physical therapy and noted that while it has been helpful, he is still experiencing pain. Flare-ups were not reported. ROM results include forward flexion to 65 degrees, with pain; extension to 10 degrees, with pain; right lateral flexion to 10 percent, with pain; left lateral flexion to 20 percent, with pain; and normal right lateral rotation and left lateral rotation to 30 degrees. No change in ROM measurement was noted after repetitive-use testing. Functional loss of the lumbar spine was noted as less movement than normal and pain on movement. No guarding or muscle spasms, no other neurologic abnormalities, and no IVDS was noted. Straight leg raising test was negative bilaterally, and no radiculopathy was noted. The Board also reviewed a May 2017 VA back conditions examination, wherein the examiner confirmed DDD with early DJD of the lumbar spine and degenerative arthritis of the spine. No flare-ups were reported. ROM testing results showed forward flexion, extension, right lateral flexion, and bilateral lateral rotation were normal; left lateral rotation was limited to 0 degrees. Pain was noted on the examination in forward flexion. No additional loss in ROM was noted after repetitive use testing. No guarding or muscle spasm, ankylosis, other neurologic abnormalities, or IVDS were noted. Localized tenderness was noted but did not result in abnormal gait or spinal contour. Functional impact was described as difficulty bending and stooping, which limits his work capacity. ROM testing consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) was noted. The Board notes that the examiner indicated that the Veteran's DDD is worsening and also provided an additional diagnosis of arthritis of the spine based on MRI imaging. Having reviewed the medical evidence in the claims file and considering the evidence in the light most favorable to the Veteran, the Board finds that the Veteran's symptoms might have shown minimal improvement but notes that low back ROM is still limited by unresolved pain. Additionally, the most recent examination indicates that the Veteran's DDD is worsening, and an additional back diagnosis has been confirmed by imaging. Thus, the requisite finding of actual improvement as based upon an adequate examination has not been established in this case. As such, the reduction was not proper. Accordingly, restoration of the 20 percent rating for DJD and early DJD of the lumbar spine after May 1, 2018, is hereby warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. 4. Entitlement to a disability rating higher than 20 percent for DJD and early DJD of the lumbar spine for the entire period on appeal. Disabilities of the musculoskeletal system are primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca, supra. The regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5000-5331). The amendments included DC 5244 for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case. After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes that the substantive criteria for the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) remain the same. Disabilities of the spine, DCs 5235 through 5244, are rated under the General Rating Formula, unless DC 5243 is specifically evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS Formula) based on incapacitating episodes. Ratings under the General Rating Formula are made with or without symptoms such as pain (radiating or not), stiffness, or aching in the spine affected by residuals of injury or disease. For the period on appeal, the Veteran's low back disability was rated as 20 percent disabling under DC 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a. The Veteran contends his service-connected low back disability was more severe than contemplated by the initially assigned 20 percent disability rating. See May 2013 VA 21-526EZ Fully Developed Claim for increased rating. IVDS ratings under DC 5243 are predicated on incapacitating episodes (periods of acute signs and symptoms due to IVDS that require physician-prescribed bed rest and treatment by a physician). Although the Veteran has reported flare-ups and incapacitating episodes, a thorough review of the claims file does not confirm the presence of any incapacitating episodes (i.e., physician-prescribed bedrest) as defined by VA regulations, at any point during this period. Thus, the Board finds no further consideration under DC 5243 is warranted. Under the General Rating Formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees. 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Ankylosis" is the complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Stedman's Medical Dictionary 87 (25th ed. 1990)). The Board has reviewed the medical evidence of record for the for the entire period on appeal including the October 2013 and May 2017 VA back examinations noted above and additional VA treatment records and found no evidence of a diagnosis for ankylosis of the lumbar spine. VA treatment records include a June 2018 rheumatology consultation record that noted the Veteran has tried injections and acupuncture. In the June 2018 VA review PTSD examination noted above, the Veteran reported changing jobs because of limitations created by his chronic back pain. A June 2019 primary care progress record that noted chronic lower back pain that the Veteran categorized with an intensity level of about 7/10. A September 2019 rheumatology clinic record that noted the Veteran has a history of back pain and still has pain with no improvement with pain medication. The same record noted back pain is not improved with activity, and the Veteran reports peripheral pain to include tender points not previously noted. The Board notes that there are additional treatment records that confirm a history of chronic back pain and prescription pain medication throughout the claims file. In the October 2013 VA back (thoracolumbar spine) conditions examination noted above, ROM testing results showed forward flexion to 65 degrees, with pain. with pain; extension to 10 degrees, with pain; right lateral flexion to 10 percent, with pain; left lateral flexion to 20 percent, with pain; and normal right lateral rotation and left lateral rotation to 30 degrees. The May 2017 VA back examination, also noted above, showed forward flexion, extension, right lateral flexion, and bilateral lateral rotation were normal; left lateral rotation was limited to 0 degrees. Pain was noted on the examination with forward flexion. While overall ROM showed improvement, the examiner noted additional low back diagnosis of arthritis of the spine and indicated that the Veteran's DDD was worsening. After a thorough review of the claims file, the Board finds the evidence of record does not support a rating more than 20 percent for the Veteran's low back disability. The objective medical and lay evidence of record does not establish that the Veteran's symptomatology approximated forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis, as would be necessary for an evaluation higher than the assigned 20 percent rating. The Board acknowledges the Veteran's statements regarding the pain he experiences in his low back. However, painful motion is already contemplated and compensated by the assigned 20 percent rating. DeLuca, supra. As such, the criteria for an rating higher than 20 percent under the General Rating Formula are not met. The Board considered whether a higher rating is warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement. 38 C.F.R. §§ 4.40 and 4.45. For any additional functional loss to warrant a higher rating, that overall loss must rise to the level of the more severe symptomatology represented by the ratings higher than 20 percent. This has not been shown here. DeLuca, supra. Finally, there is no objective medical evidence establishing separately ratable neurological manifestations related to the Veteran's thoracolumbar disability. There is also no evidence of any bowel or bladder impairment. For all the foregoing reasons, the preponderance of the evidence is against a rating higher than 20 percent at any point during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal to this extent is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.