Citation Nr: 21074138 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-05 504 DATE: December 14, 2021 ORDER Service connection for left foot plantar fasciitis is denied. Service connection for bilateral pes planus is denied. Service connection for a right ankle disorder is granted. Service connection for a left ankle disorder is granted. A rating higher than 20 percent for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction prior to September 10, 2019, is denied. A rating higher than 40 percent for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction as of September 10, 2019, is denied. A rating higher than 30 percent for gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS) is denied. A rating higher than 70 percent for cyclothymic disorder and anxiety disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 30, 2015 is denied. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran's left foot plantar fasciitis had its onset during active duty service or is related to such service. 2. The most probative evidence is against a finding that the Veteran's bilateral pes planus had its onset during active duty service or is related to such service. 3. The Board resolves reasonable doubt in the Veteran's favor by finding that his right and left ankle disorders are etiologically related to active duty service. 4. The Veteran's thoracolumbar spine disability was not manifested by forward flexion 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, at any time prior to September 10, 2019. 5. The Veteran's thoracolumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent of unfavorable ankylosis during flare-ups; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, at any time as of September 10, 2019. 6. The Veteran is in receipt of the maximum rating allowed under Diagnostic Code 7319 for GERD and IBS, and the evidence does not show that his gastrointestinal disability is manifested by symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 7. The Veteran's cyclothymic disorder and anxiety disorder has not been manifested by total social impairment at any time during the appeal period. 8. The Veteran did not complete a VA Form 21-8940 regarding eligibility for a TDIU and the evidence is insufficient to establish that he was unable to secure or follow substantially gainful employment because of service-connected disability during the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a right ankle disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 4. The criteria for service connection for a left ankle disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 5. The criteria for a rating higher than 20 percent for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction have not been met prior to September 10, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 6. The criteria for a rating higher than 40 percent for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction have not been met as of September 10, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 7. The criteria for a rating higher than 30 percent for GERD and IBS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7319, 7346. 8. The criteria for a rating higher than 70 percent for cyclothymic disorder and anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9413. 9. The criteria for a total disability rating based on individual unemployability due to the service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from December 1992 to December 2013, with service in the Southwest Asia Theater of Operations from September 2001 to May 2002 and June 2007 to May 2008. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a TDIU was raised in conjunction with the three increased rating claims and remains part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in May 2018. A transcript is of record. The claims were remanded by the Board in October 2018. In a December 2020 rating decision, the rating assigned for the psychiatric disability was increased to 70 percent effective October 30, 2015, the date on which the Veteran's claim for increased rating was received; the rating assigned for the thoracolumbar spine disability was increased to 40 percent effective September 10, 2019. At that time, the combined rating for all service-connected disabilities was increased to 100 percent effective October 30, 2015. The claim involving the feet was previously styled as entitlement to service connection for left foot plantar fasciitis and bilateral pes planus. On February 7, 2021, VA amended the rating criteria for the musculoskeletal system, in pertinent part adding 38 C.F.R. § 4.71a, Diagnostic Code 5269 to establish separate rating criteria for plantar fasciitis. Given the foregoing, the Board will address whether service connection for left foot plantar fasciitis is warranted separately from the claim for service connection for bilateral pes planus. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Service connection for left foot plantar fasciitis 2. Service connection for bilateral pes planus 3. Service connection for a right ankle disorder 4. Service connection for a left ankle disorder The Veteran seeks service connection for left foot plantar fasciitis and bilateral pes planus. He testified that he had no problems with either foot prior to active duty service and that he really started having issues during his last tour in the military, which was five years long at Fort Need. The Veteran reported that he was an instructor to students of Advanced Individual Training and was on his feet for eight hours or more daily; he started to develop a lot of pain, especially in his heels, and he was eventually found to have bone spurs and a small discrepancy in leg length. The Veteran testified that his foot symptoms in service - pain, limping, and difficulty walking - have continued. The Board notes that service connection has already been established for bilateral heel spurs. The Veteran also seeks service connection for disorders of the right and left ankles. He essentially asserts his ankles were sprained multiple times while on active duty and he testified that he had been experiencing ankle symptoms for 10 to 11 years. In a September 2021 statement, the Veteran's representative asserted that the Veteran's feet and ankles were accepted as sound at enlistment; that the Veteran went through Army boot camp and 21 years of active service; that there were sick calls for the feet and ankles in service; and that the Veteran has reported continuity of symptomatology treated with over the counter Naproxen, just as the Army doctor said to do. The representative points to a February 2011 in-service x-ray that showed the heel bones were dislocated and that there was abnormal medial sloping angulation. The representative linked an article on the talus in support of the statement that the x-ray shows the Veteran's foot bones were out of proper alignment; the representative also asserts that the bones of the arches of the foot are also ankle bones. Service treatment records document several visits related to problems with both feet and ankles. The Veteran sustained sprains to both ankles and was found to have plantar fasciitis in September 2010. A December 2011 service treatment record clearly documents the absence of pes planus. The post-service medical evidence of record, which includes VA examination reports dated in June 2014 and September 2019, indicates that the Veteran has been diagnosed with bilateral pes planus, bilateral plantar fasciitis, and bilateral lateral collateral ligament sprain (chronic/recurrent). Since the first criterion for establishing service connection has been met, the question becomes whether any of these conditions are related to service. The preponderance of the evidence is against the claims for service connection for left foot plantar fasciitis and bilateral pes planus on a direct basis. Although the service treatment records document that the Veteran was diagnosed with plantar fasciitis during service, there is no indication that he was found to have bilateral pes planus during service. When he underwent VA examination in June 2014, approximately six months after his discharge from active duty service, the VA examiner specifically stated that examination was clinically negative for pes planus. The June 2014 VA examiner also determined that the in-service left foot plantar fasciitis had resolved, although subsequent medical records contain a November 2015 assessment of plantar fasciitis. The Board acknowledges that the examiner who conducted the September 2019 VA examination provided an opinion that it was at least as likely as not that the Veteran's left foot plantar fasciitis and bilateral pes planus were incurred in or caused by the claimed in-service injury, event, or illness. The rationale employed was that the Veteran had no issues related to the claimed left foot plantar fasciitis and bilateral pes planus prior to military service, that the onset of the condition was during service, documented in the service treatment records, and that there is evidence of current, chronic, and continuous treatment and care such that a nexus had been established. This opinion, however, is not afforded high probative value since the service treatment records do not document an in-service diagnosis of bilateral pes planus and the post-service evidence does not document continuous treatment and care for either bilateral pes planus or left foot plantar fasciitis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal)). The Board affords greater probative value to the opinion provided by a different VA examiner in September 2020, which was based on review of the service treatment records and imaging reports from service, the post-service medical evidence of record, and the Veteran's lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The September 2020 VA examiner determined that it was less likely than not that the Veteran's left foot plantar fasciitis and bilateral pes planus were incurred in or caused by the claimed in-service injury, event, or illness. Regarding the bilateral pes planus, the rationale was that review of the service treatment records does not support an etiology for bilateral pes planus during service and that although a March 2011 podiatry exam noted decreased medial longitudinal arch height, there was no diagnosis of pes planus. The examiner also noted that there were repeated foot exams during service that were absent for pes planus and that the June 2014 VA examination also did not find evidence of a bilateral pes planus foot condition. The examiner went on to explain that the diagnosis of pes planus established on the September 2019 VA examination was more likely than not acquired after service with no medical nexus related to service. Regarding the left foot plantar fasciitis, the rationale was that there is evidence that the Veteran was treated for plantar fasciitis during service, but insufficient evidence for a chronic condition after service. The examiner noted the Veteran's lay testimony for chronic foot pain during the September 2019 VA examination and noted that while the Veteran is deemed competent to report a chronology of symptoms, he is not capable of diagnosing those symptoms. The examiner further noted that plantar fasciitis had resolved at the time of the June 2014 VA examination and that the Veteran is service connected for bilateral heel spurs, which would have resulted in similar, chronic foot pain. The examiner concluded that the weight of the medical evidence does not support a chronicity of plantar fasciitis and there is no established medical nexus related to service. While the Veteran, to include through the statement submitted by his current representative, believes that his current foot disorders are related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of left foot plantar fasciitis and bilateral pes planus are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of any left foot plantar fasciitis and bilateral pes planus, to include the assertion that his post-service problems are related to in-service wear and tear and documented in-service problems, is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Moreover, to the extent that the Veteran's representative is attempting to extrapolate from the submitted medical literature that his bilateral foot problems were caused by service, such extrapolation would constitute nothing more than an unsubstantiated medical opinion by a lay person rather than a conclusion based on the medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Sacks v. West, 11 Vet. App. 314, 317 (1998). This evidence is not a medical opinion based on the specific facts of the Veteran's case, and the Board finds the September 2020 VA examiner's opinion to be significantly more probative on whether the Veteran's current bilateral foot condition is related to the in-service findings. To the extent that the Veteran may have been pursuing a claim for a bilateral foot disorder based on his service in the Southwest Asia, service connection on a presumptive basis under the legislation specific to Persian Gulf War Veterans is not warranted since left foot plantar fasciitis and bilateral pes planus are known clinical diagnoses rather than undiagnosed illnesses. 38 C.F.R. § 3.317. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims for service connection for left foot plantar fasciitis and bilateral pes planus, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Turning to the ankle claims, the preponderance of the evidence does support the claims for service connection for disorders of the right and left ankles. The Board remanded the claims in October 2018 to schedule the Veteran for a VA examination and to obtain an opinion on etiology. The examiner who conducted the September 2019 VA examination provided an opinion that it was at least as likely as not that the claimed conditions were incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran had no issues related to the right or left ankles prior to military service; that the onset of the conditions was during service, as documented in the service treatment records; and that there is evidence of current, chronic, and continuous treatment and care such that a nexus has been established. In an September 2020 addendum opinion, another VA examiner provided an opinion that it was less likely than not that the claimed conditions were incurred in or caused by the claimed in-service injury, event, or illness. The September 2020 examiner noted the established diagnoses of chronic right and left ankle lateral collateral ligament sprain established during the September 2019 VA examination, but determined that after a thorough review of the Veteran's medical records, the weight of the medical evidence does not support a medical nexus related to service. The examiner incorrectly noted that there is no record of treatment for a left ankle sprain during service while correctly noting that the Veteran was treated for an acute right ankle sprain during service in October 2009, at which time x-rays were negative, and that there were no further complaints or treatment of the right ankle during service. The examiner concluded that the current right and left ankle disorder were more likely than not due to normal wear and tear since service. Since the Veteran had over two decades of active duty service and both opinions are competent and probative, the Board resolves reasonable doubt in the Veteran's favor and finds that service connection for a right ankle disorder and a left ankle disorder is warranted. Since the Board is granting the claims, there is no prejudice in the RO's failure to obtain radiographic images of the ankles, as instructed in the October 2018 remand. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is 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 of 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; see also 38 C.F.R. §§ 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). 5. A rating higher than 20 percent for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction prior to September 10, 2019 6. A rating higher than 40 percent for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction as of September 10, 2019 Service connection was originally established for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction in a July 2014 rating decision, which assigned a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5243, effective January 1, 2014. The Veteran filed a claim for increased rating on the basis that his thoracolumbar spine disability had worsened, specifically stating he had incapacitating episodes and needed pain management. The Veteran testified that he cannot bend down and touch his toes and that he tried to be vigilant with stretching because if not, he would be down and out. He reported that he had flareups and there was one type where his back physically seizes and he is stuck in a certain position, unable to straighten up or down. The Veteran described an intense pain that affected his breathing and that the only thing to make it go away was bed rest, which lasted a solid two to three days before he can move. After that, when he reaches out with his arms to grab something, he will feel his back clench/tighten and he experiences weakness. He must be careful about reaggravating his back. The Veteran testified that if he was working a job with a lot of movement or walking, it would be a week before he would be ready to go back, even with narcotic medications and muscle relaxers. He indicated that those flareups occurred a couple times a year and that he no longer participated in sports, some yard work, or weightlifting. The Veteran testified that he spent a lot of time trying to physically avoid triggering a flareup. He also reported that he has smaller flareups described as pain that shoots down from his back and wraps around his side and across the front, down his quadricep towards the knee. The Veteran described having to walk slightly hunched and slower because of constant pain and spasms, but being able to avoid bed rest during the smaller flareups. He denied any problems with his bowels or bladder. When asked about incapacitating episodes, the Veteran testified that his back completely incapacitates him four weeks a year. The rating assigned for thoracic and lumbar spondylosis with degenerative disc disease and right sacroiliac joint dysfunction was increased to 40 percent in a December 2020 rating decision under Diagnostic Code 5239 effective September 10, 2019. As such, the Board must determine whether the Veteran is entitled to a rating higher than 20 percent prior to September 10, 2019, and a rating higher than 40 percent as of that date. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings in excess of 20 and 40 percent pertinent to the thoracolumbar spine are provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Note (2) of the General Rating Formula provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. The preponderance of the evidence is against the assignment of a rating higher than 20 percent for the thoracolumbar spine disability at any time prior to September 10, 2019. To merit the assignment of the next highest (40 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less; or ankylosis of the entire thoracolumbar spine. The evidence in this case does not show either. Rather, the Veteran's thoracolumbar spine exhibited forward flexion limited to 40 degrees during the January 2016 VA examination and during a January 2016 VA consult, and there is no evidence of ankylosis. There is also no evidence of the functional equivalent of favorable ankylosis during flareups. See Chavis v. McDonough, 34 Vet. App. 1 (2021); VA and private treatment records; VA examination reports. Nor is the assignment of an increased rating for the Veteran's thoracolumbar spine disability warranted under the IVDS Formula at any time before September 10, 2019. While the Board acknowledges the Veteran's report that he has had to rest in bed during certain flareups, the medical evidence of record does not corroborate that any bed rest was prescribed by a physician; there is also no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during any 12-month period. In addition, the June 2014 VA examiner indicated that the Veteran has IVDS, but has not had any incapacitating episodes, and the January 2016 VA examiner indicated that there was no IVDS. Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected thoracolumbar spine disability prior to September 10, 2019. The Board acknowledges the Veteran's testimony as to flareups as well as the subjective complaint of flareups described during the June 2014 VA examination as difficulty bending and slow walking, and during the January 2016 VA examination as occurring monthly and being set off by repetitive motion. The Board also acknowledges the subjective complaint of functional loss/impairment described during the January 2016 VA examination as resulting from an inability to stand for any extended period of time, an inability to lie down flat for extended periods of time, and an inability to go up stairs without using a rail. The objective evidence during the June 2014 VA examination that there was additional limitation in range of motion and functional loss and/or functional impairment due to less movement than normal and pain on movement following repetitive use testing, and the objective evidence during the January 2016 VA examination that pain significantly limits functional ability with repeated use over time and with flareup, has also been considered. Finally, the Board also acknowledges that the June 2014 VA examiner stated that the Veteran's thoracolumbar spine disability impacted his ability to work due to decreased capacity for lifting, sitting and standing, and that the January 2016 VA examiner found the condition would impact work because repetitive motion and standing in one place for extended periods of time both increase his back pain, although findings on examination did not indicate that his back condition would impact his ability to work in jobs that require moderate activity taking account his reported difficulty with doing repetitive motion. In this case, the Board does not find any additional functional loss which is not contemplated by the currently assigned 20 percent rating prior to September 10, 2019. The Veteran has described functional limitations which are contemplated in the schedular criteria and the Veteran himself has not described additional motion loss or functional impairments during flareups which meet or more nearly approximate the criteria for the next higher (40 percent) rating. Moreover, although the Veteran exhibited a 15 degree loss of flexion after repetition at the time of the June 2014 VA examination, he was still able to achieve flexion to 50 degrees, which is 20 degrees more than the amount needed to support a 40 percent rating; the Veteran was able to perform repetitive use testing without any additional loss of motion or function during the January 2016 VA examination. Given the foregoing, the Board finds that a rating higher than the 20 percent rating assigned to the Veteran's thoracolumbar spine disability is not warranted based on functional impairment at any time prior to September 10, 2019. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The preponderance of the evidence is also against the assignment of a rating higher than 40 percent for the thoracolumbar spine disability from September 10, 2019. The Board acknowledges the Veteran's assertions concerning the symptoms he has experienced as a result of his lumbar spine disability during the claim since that date, specifically his report during the September 2019 VA examination of constant, spastic pain at a level three; intermittent, spastic pain at a level five; stabbing pain; and that flareups occur without warning or trigger with resulting pain at a level seven that was described as stabbing, shooting, and radiating down the right leg into the knee and into the glute on the left knee, lasting up to three days. To merit the assignment of the next highest (50 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not support such a finding. Rather, the Veteran was able to achieve flexion to 30 degrees and extension to 15 degrees during the September 2019 VA examination and the VA examiner specifically noted the absence of ankylosis. There is also no evidence of the functional equivalent of unfavorable ankylosis during flare-ups. See Chavis, 34 Vet. App. 1. Nor is the assignment of a rating higher than 40 percent for the Veteran's thoraco-lumbar spine disability warranted under the IVDS Formula from September 10, 2019. This is so because there is no evidence of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no indication, and the Veteran has not reported, that any bed rest had been prescribed by a physician since September 10, 2019, and the September 2019 VA examiner noted there was no IVDS. The Board has considered whether the Veteran's service-connected thoracolumbar spine disability manifests any associated objective neurologic abnormalities (other than the already service-connected sciatic and femoral nerve radiculopathy of the lower extremities) to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). There is no evidence the Veteran has reported any bladder or bowel impairment and the June 2014, January 2016, and September 2019 VA examiners all noted that he did not have any neurologic abnormalities or findings such as bowel or bladder problems/pathologic reflexes related to his thoracolumbar spine condition. For these reasons, a separate rating for other neurological abnormalities is not warranted. In sum, the preponderance of the evidence supports the currently assigned 20 and 40 percent ratings for the thoracolumbar spine disability and the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 7. A rating higher than 30 percent for GERD and IBS Service connection was originally established for GERD and IBS in a July 2014 rating decision, which assigned a noncompensable rating under 38 C.F.R. § 4.114, Diagnostic Codes 7319 and 7346, effective January 1, 2014. The rating was increased to 10 percent with the same effective date in a December 2014 rating decision under just Diagnostic Code 7319. In seeking a higher rating for his gastrointestinal disability, the Veteran has reported taking four milligrams of Nexium daily and that if he misses his medication, his symptoms will appear immediately and last for three to four days, even if he starts taking the medication. He described painful reflux that he described as an intense burning. The Veteran also reports that he goes to the bathroom frequently and had found himself going as many as four of five times a day. He testified that he had developed anemia and hemorrhoids and that he had terrible, painful cramping especially in his lower abdominal area. He reported having bloody stool a month before and that he had undergone procedures that had found irritation and redness throughout his gastrointestinal tract beginning in his throat. The Veteran testified that his GERD and IBS had cost him a job interview because he had to use the bathroom and was not considered for the position. He indicated that he had been working at his current job six months and had left three times related to his stomach, four hours early the most recent time. He indicated he had had four unplanned absences since he started working six months prior, three for his gastrointestinal symptoms, and two planned absences, one for his gastrointestinal procedures. Diagnostic Code 7319 provides the rating criteria for irritable colon syndrome (spastic colitis, mucous colitis, etc.). A 30 percent rating is provided for severe irritable colon syndrome due to diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Since the Veteran is already in receipt of the maximum rating provided under this diagnostic criterion, the assignment of a rating higher than 30 percent for GERD and IBS is impossible. Since the Veteran was previously rated under Diagnostic Code 7346, the Board will also consider whether a rating higher than 30 percent is warranted under that criteria for the service-connected GERD and IBS. Only one rating higher than 30 percent is provided, namely a 60 percent rating for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The preponderance of the evidence of record does not support the assignment of a rating higher than 30 percent for the GERD and IBS at any time during the appeal under Diagnostic Code 7346 since the symptoms associated with the Veteran's gastrointestinal disability do not more nearly approximate the criteria for a 60 percent rating. This determination is based on the Veteran's lay statements and the evidence obtained during VA examinations in June 2014 and September 2019. During a June 2014 VA intestinal conditions examination, the examiner reported that the Veteran had diarrhea and cramping, which resolved when diarrhea finished, as well as occasional episodes of bowel disturbance with abdominal distress, but no weight loss attributable to an intestinal condition, and no malnutrition, serious complications, or other general health effects attributable to the intestinal condition. During a June 2014 VA esophageal conditions examination, the examiner reported reflux but no esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. During a September 2019 VA intestinal conditions examination, the Veteran reported worsened IBS with alternating constipation and diarrhea. The constipation occurred once a month for about five days. After the constipation resolves, the diarrhea returns up to four times per day. The Veteran also reported that his GERD had worsened because he could not eat or get out of bed before the Nexium kicked in and that he had morning burning and throat irritation. The examiner reported signs and symptoms of alternating diarrhea and constipation, abdominal distention, anemia, and nausea, but did not provide hemoglobin/hematocrit as required in conjunction with the reported anemia. Although the reported pain and anemia are symptoms associated with a 60 percent rating, the September 2019 VA examiner specifically noted the absence of episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition; weight loss attributable to an intestinal condition; and malnutrition, serious complications, or other general health effects attributable to the intestinal condition. The Board finds the VA examiners' findings to be more probative than the Veteran's lay assertions. In sum, the preponderance of the evidence supports the currently assigned 30 percent rating for the gastrointestinal disability and the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 8. A rating higher than 70 percent for cyclothymic disorder and anxiety disorder Service connection was originally established for cyclothymic disorder and anxiety disorder in a July 2014 rating decision, which assigned a 50 percent rating effective January 1, 2014, under 38 C.F.R. § 4.130, Diagnostic Code 9413. The rating was subsequently increased to 70 percent during this appeal in a December 2020 rating decision, which assigned an effective date of October 30, 2015, the date on which the Veteran's claim for increased rating was received. In seeking a higher rating, the Veteran reports the following mental health symptoms: anger, anxiety, chronic sleep problems, depression, difficulty making decisions, emotional numbing, inability to make and keep friends, isolation, lack of emotions, lack of self-esteem, memory loss, no friends, overly concerned with personal hygiene, panic attacks, problems with communication, problems at work, problems getting along with people, sense of helplessness, suspiciousness, take medications for mental conditions, and unable to share feelings. The Veteran testified that his symptoms included suicidal ideation, avoidance, mood swings, being unable to function in stressful situations, suspicion/trust issues, always observing and watching people, verbal abuse towards spouse, and anxiety/panic. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The medical evidence in this case consists of VA and private treatment records and several VA examinations. This evidence does not support the assignment of a rating higher than 70 percent for cyclothymic disorder and anxiety disorder at any time during the appeal period since the preponderance of the evidence does not more nearly approximate the criteria for a 100 percent rating, which requires total social and occupational impairment. More specifically, the evidence does not support a finding that the Veteran is totally impaired in the social sense. Although the Veteran is reportedly very withdrawn and avoids social interactions, and although the more recent evidence indicates that the Veteran is now divorced, he was married for most of the appeal period and he has reported having a girlfriend following his divorce. Prior to his divorce, the Veteran reported that he had three grown sons and that he and his wife had moved to Nebraska, where they both had extended family. During the July 2014 VA mental disorders examination, the Veteran reported that his marriage was good and that his oldest son was living with him and his wife; he was estranged from his father and did not have a relationship with one sister and his brother, but was close to his other sister and they socialized frequently. A February 2015 treatment record indicates that his son and granddaughter were visiting. During the September 2019 VA mental disorders examination, the Veteran reported that his relationship with his wife was both "awesome and hard" because each had health problems that limit activities and he worried about finances. He reported one friend/co-worker he talked to besides his wife and maintained contact with his three sons. VA treatment records also document that he attended mental health group counseling in October 2017, August 2020, and September 2020. In addition to the evidence that shows that the Veteran's social connections are limited but not nonexistent, there is no evidence the Veteran had gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or name. Rather, the July 2014 VA examiner reported that the Veteran was pleasant and cooperative during most of the interview, though he was expansive, talked loudly, sat in an open and relaxed position, and became more uncomfortable with the evaluation process and said he was feeling anxious when the examiner pointed out the vagueness and tangentiality of his answers, which were frequently overly detailed. The July 2014 VA examiner also reported that the Veteran was fully oriented; had clear sensorium; had good attention and fairly good concentration; had good abstract reasoning; that his demeanor was expansive; and that his mood was slightly elevated with consistent affect. The examiner also reported that there were no difficulties with long-term memory; that short-term memory was poor due to anxiety; and that the Veteran was not an imminent risk to anyone. The September 2019 VA examiner reported that the Veteran arrived on time, presented his photo ID, was neatly groomed and casually dressed in shorts and tee shirt, and that he removed his ball cap during the interview. His beard was gathered up in what appeared as elastic bands and his approach was polite and cooperative, though his mood was depressed and anxious with variable congruent affect. Eye contact and speech were normal, and the Veteran was fully oriented without thought or perceptual disorders demonstrated or elicited. Judgment and insight were intact, and the Veteran was not dangerous to himself or others. In addition to the findings on mental status evaluation during the VA examinations, private mental health treatment records indicate that the Veteran was always well groomed and dressed appropriately; always oriented to time, place and person; always exhibited appropriate behavior; that he was able to communicate clearly and achieve goal directed ideas without any difficulty; that thought processes were appropriate; and that there was no evidence of auditory or visual hallucinations. VA mental health treatment records reveal that although problems were noted with memory and concentration, the Veteran was appropriately dressed and groomed; was always oriented to person, time, place, and situation; had normal rate, tone, volume, and prosody of speech; that thought processes were organized, linear, and goal-directed; that there was no evidence of psychosis or hallucinations, delusions or panic; that concentration and eye contact were good; that memory was grossly intact; that insight was fair; that judgment was fair/adequate for treatment; and that the Veteran was of average intelligence. VA clinicians also consistently indicated that the Veteran posed no risk to himself or others and had good hygiene. In sum, the Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating. The preponderance of the evidence does not show symptomatology which more nearly approximates total social and occupational impairment. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 9. Entitlement to a TDIU due to service-connected disabilities for the period on appeal prior to October 30, 2015 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Service connection is in effect for 21 disabilities and the schedular requirements set forth in 38 C.F.R. § 4.16(a)(2) for consideration of TDIU have been met throughout the appeal period since the Veteran's combined rating has been 90 percent since January 1, 2014, and 100 percent since October 30, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran testified that his service-connected thoracolumbar spine, gastro-intestinal, and psychiatric disabilities interfered with his ability to work. The Board notes that the Veteran did not respond to a July 2019 VA letter requesting him to complete and submit the enclosed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). As such, he did not assist in providing additional evidence to the VA that may have been relevant to his claim. The "duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran did not submit a fully completed VA Form 21-8940, the Board is unable to verify the extent of his earned income to determine if such is gainful or marginal employment, or other matters relevant to the claim. In addition, while the Board acknowledges that the Veteran was reportedly unemployed for portions of the appeal period, the evidence of record indicates that he was employed at Electromotive Diesel in January 2014 and July 2014; as a forklift driver at the time of his May 2018 Board hearing; and was employed installing furnace and air conditioning units at the time of the September 2019 VA mental disorders examination. The Veteran has failed to cooperate with VA's attempts to develop the claim for TDIU and has not provided the information requested to permit adequate adjudication of the claim. Accordingly, due to lack of cooperation by the Veteran, the evidence is insufficient to determine whether he is unemployable due to service-connected disabilities. Thus, the claim for TDIU must be denied. See Wood, 1 Vet. App. at 193. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.