Citation Nr: 21006419 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-24 775A DATE: February 4, 2021 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) and cognitive disorder not otherwise specified (NOS) due to traumatic brain injury (TBI) and post-concussive syndrome, with major depressive disorder (MDD) and anxiety disorder is granted, subject to the laws and regulations governing the payment of monetary awards. An initial rating in excess of 10 percent prior to January 18, 2020, and in excess of 40 percent thereafter for lumbar strain and scoliosis with degenerative arthritis and intervertebral disc syndrome (IVDS) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD and cognitive disorder NOS due to TBI and post-concussive syndrome, with MDD and anxiety disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe symptomatology more nearly approximating total occupational and social impairment. 2. Prior to January 18, 2020, the Veteran’s lumbar strain and scoliosis with degenerative arthritis and IVDS was manifested by forward flexion greater than 60 degrees and a combined range of motion of the entire thoracolumbar spine greater than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, incapacitating episodes due to IVDS, or associated objective neurologic abnormalities other than right and left sciatic nerve impairment. 3. As of January 18, 2020, the Veteran’s lumbar strain and scoliosis with degenerative arthritis and IVDS did not result in ankylosis, incapacitating episodes due to IVDS, or associated objective neurological abnormalities other than right and left sciatic nerve impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD and cognitive disorder NOS due to TBI and post-concussive syndrome, with MDD and anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 8045-9411. 2. The criteria for an initial rating in excess of 10 percent prior to January 18, 2020, and in excess of 40 percent thereafter for lumbar strain and scoliosis with degenerative arthritis and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2000 to December 2003 and from May 2007 to January 2014. Both periods of active duty involved deployments to Southwest Asia, and the Veteran was awarded the Combat Action Ribbon, among other honors, in conjunction with his latter period of service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2014 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In October 2019, the Board remanded the case for additional development. While on remand, a July 2020 rating decision awarded an increased rating of 50 percent for the Veteran’s PTSD and cognitive disorder NOS due to a TBI and post-concussive syndrome with MDD and anxiety disorder, effective February 13, 2020, and a 40 percent for his lumbar strain and scoliosis with degenerative arthritis and IVDS, as of January 18, 2020. However, inasmuch as ratings higher are available for such disabilities, and the Veteran is presumed to seek the maximum available benefit for a disability, his claims for higher ratings remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the Board has characterized such issues to reflect that staged ratings are in effect. Fenderson v. West, 12 Vet. App. 119 (1999). After the issuance of the July 2020 rating decision, the Veteran filed a Decision Review Request: Higher-Level Review (VA Form 20-0996) wherein he requested review of the propriety of the assigned effective dates for the award of the aforementioned increased ratings. However, in a December 2020 letter, the Agency of Original Jurisdiction (AOJ) advised him that the July 2020 rating decision was a partial grant of a pending legacy appeal issued in connection with the June 2020 supplemental statement of the case (SSOC) and he did not select the SOC/SSOC Opt In on such form. Thus, the AOJ declined to process the Higher-Level Review request. The case has not returned to the Board for further appellate review. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson, supra; Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to an initial rating in excess of 30 percent prior to February 13, 2020 and in excess of 50 percent thereafter for PTSD and cognitive disorder NOS due to TBI and post-concussive syndrome, with MDD and anxiety disorder. Since January 31, 2014, the date of service connection, the Veteran’s service-connected PTSD and cognitive disorder NOS due to TBI and post-concussive syndrome, with MDD and anxiety disorder, has been rated pursuant to Diagnostic Code 8045, which outlines the rating criteria for the residuals of a TBI, and Diagnostic Code 9411, which outlines the rating criteria for PTSD. Specifically, per Diagnostic Code 8045, the three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Notably, the Veteran is separately service-connected for three physical manifestations of his TBI residuals, namely tinnitus, tension headaches, and scar on the chin and the assigned ratings for these disorders are not currently on appeal before the Board. Additionally, the Veteran’s TBI emotional/ behavioral symptoms and cognitive disorder have been deemed indistinguishable from his service-connected PTSD, which has been determined to be the predominant disability. In this regard, Note (1) of Diagnostic Code 8045 provides that, if the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions should be assigned. 38 C.F.R. § 4.124a. Consequently, the Veteran’s disability has been rated pursuant to DC 9411 under the General Rating Formula for Mental Disorders (General Rating Formula). In this regard, pursuant to the General Rating Formula, a 30 percent rating is assigned when there is 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is “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 are not exhaustive, 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. When evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and “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.” 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the general rating formula “indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. Upon review of the entirety of the evidence of record, the Board resolves all doubt in favor of the Veteran and finds that his symptomatology and resulting functional impairment, which has largely remained consistent throughout the appeal period, warrants the assignment of an initial 70 percent rating, but no higher. The pertinent evidence of record includes VA examinations performed in May 2013, September 2014, and February 2020, a letter authored in March 2015 by one of the Veteran’s treating VA clinicians, VA treatment records, and his lay statements, to include his testimony at the May 2019 Board hearing. During the May 2013 VA examination, the Veteran characterized his psychiatric symptoms, described as anxiety, hypervigilance, and irritability, as moderate in severity and reported “good” relationships with his wife of 10 years, his two young daughters, his only sibling (a brother), and his mother and father. However, he indicated that, within the last year, he started having social avoidance and had become much less outgoing. He further reported having full time employment for the six months prior to the examination as a battalion construction officer and characterized his relationships with both his supervisor and coworkers as “okay.” On mental status examination, the Veteran was fully-oriented, appropriately dressed, maintained good eye contact, communicated effectively with a normal rate of speech, and evidenced no impairment of judgment or thought, to include auditory or visual hallucinations. However, Veteran reported being forgetful regarding others’ names, directions and recent events, and he described his mood as anxious, with panic attacks occur less than once per week. While he denied experiencing any homicidal or suicidal ideation at the time, in a March 2015 letter, the Veteran’s private treatment provider, who had been rendering treatment since 2014, reported that the Veteran had been treated with cognitive behavioral therapy for suicidal ideation and combat-related flashbacks. (Unfortunately, VA’s extensive efforts to obtain the Veteran’s treatment from 2014-2018 from this private provider have been unsuccessful.) As relevant, the VA examiner further observed that the Veteran’s TBI resulted in complaints of difficulty with memory and anxiety, and found that his residual memory, concentration, and attention problems are comorbid to PTSD and TBI. The VA examiner concluded that the Veteran had some diminished enthusiasm and emotional attachment in his life due to his PTSD, and occasionally had some interference in performing activities of daily living as a result of PTSD symptoms. In this regard, while he found that such disability resulted in mild or transient psychiatric symptoms, such resulted in a decrease in work efficiency and occupational tasks during periods of significant stress. The examiner further found that the Veteran had difficulty establishing and maintaining effective work/school and social relationships due to social withdrawal, but maintained effective family role functioning. In regard to his TBI, the examiner observed that the Veteran reported mood swings, problems with attention/concentration, anxiety, depression, mild memory loss. The Veteran underwent a second VA examination September 2014, at which time he reported that he had experienced some increase in his symptomatology since the last examination. He further reported that he had no friendships and did not attempt to engage with others socially with the exception of his work environment. The Veteran reported problems relating to his spouse and children because of his tendency to seclude himself and shut down. In regard to his occupational functioning, it was noted that he lost his prior job with an oil and gas company in May 2014 after conviction of driving under the influence. However, he was currently employed in construction management and conducted engineering research. The Veteran affirmed experiencing depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent event, and disturbances of motivation and mood. The examiner characterized the Veteran’s symptoms as occurring on a daily and weekly basis with mild to moderate severity. The examiner concluded that the Veteran experienced decreased work efficiency and his ability to maintain relationships is limited at times, and his psychiatric symptoms have caused some impairment in his occupational abilities and deficits in social aspects of his life, including difficulty in his marriage and his effectiveness as a father. Similarly, a contemporaneous TBI examination revealed mild memory loss (described as difficulty tracking the topic of conversations), mildly impaired judgment (described as difficulty recognizing the consequences of drinking too much alcohol), occasionally disoriented to one of the four aspects of orientation (described as difficulty remember the names and faces of friends or remember the circumstances from where he knows them), anxiety that makes it difficult for him to concentrate, interact with family, and do his work, and easily irritability that occasionally interfered with workplace interaction, social interaction, or both, but do not preclude them. VA treatment records reflect the Veteran’s psychiatric treatment from 2016 through January 2020, at which time he reported experiencing significant anxiety, and his treatment providers characterized his PTSD as severe. With regard to his occupational history, after conviction of a DUI in 2014, he relocated and obtained new employment as a construction engineer. However, he reported his belief that some interpersonal difficulties had caused his construction managerial job to eventually end by termination in 2019, at which time he began consulting as an engineer for his brother and sister-in-law’s business. He also engaged in part-time work as a university adjunct professor and continued to try to complete his doctoral degree, although he believed his impaired memory and concentration had been frustrating his progress. In that regard, the Veteran reported impairment in his short-term memory, stating that he would occasionally forget names of friends and family. He further reported that, while he had good relationships with his parents, sibling, and children, his heightened anxiety and tendency to withdraw had caused strain on his relationship with his spouse and they were seeking marital counseling. The Veteran reported frequent “anxiety attacks,” as well as suicidal ideation when feeling particularly depressed and hopeless during such attacks, but routinely denied any active desire, intent, or plan to end his life. At the May 2019 Board hearing, the Veteran testified to experiencing sleep impairment, memory loss, weekly panic attacks, heightened anxiety, increased depression, an inability to concentrate, emotional numbing, and conflicts with others, including supervisors. Thus, in light of such report of additional and increased symptomatology, the Board remanded the claim in October 2019 in order to afford the Veteran a contemporaneous VA examination so as to determine the severity of his psychiatric disability. During his February 2020 VA psychiatric examination, the Veteran reported experiencing a depressed mood, poor sleep, decreased interest, guilt feelings, low energy, decreased motivation, increased appetite, daily “anxiety attacks,” decreased concentration, need for increased effort to recall (memory lapses), and intermittent suicidal thoughts. In regard to his social functioning, he indicated that there was ongoing tension with his spouse, and he was distant and withdrew frequently. It was noted that they began marital counseling in December 2019. The Veteran further reported that he got along well with his daughters and, while he had few friends, he stayed in touch with some old Army buddies, and was close to family members, including his cousin. As pertinent to his occupational functioning, the Veteran reported that he worked in construction management from July 2014 to February 2019, which went well for the first two years. However, after his first boss retired, he was given new guidelines, which set him up to fail in his current project. The Veteran reported becoming depressed and his work performance decreased, which resulted in being given less and less work, and was laid off in February 2019. Thereafter, he started working with his father and sister-in-law in consulting and education businesses. The Veteran further indicated that he began teaching part-time as an adjunct professor, and was working on his doctorate. The Veteran noted that he did well in his job because he had flexible hours, which allowed him to work around other responsibilities and difficulties with concentration and motivation. It was noted that the Veteran enjoyed his graduate work, but had been inefficient in completing tasks and, thus, was behind in his dissertation proposal. The Veteran reported experiencing daily dystonic episodes in which he can have a variety of symptoms, such as hand contortion, and, given the lack of any clinical indication of a neurological etiology of these symptoms, his treatment providers have suggested that these episodes could be psychosomatic and result from his PTSD. He further reported an episode in November 2019 in which he mixed medication with alcohol and was apparently disruptive (although he does not recall the event), causing him to be evicted from a hotel and arrested. Additional symptoms of intrusive memories, distressing dreams, psychological distress, physical reactions when exposed to reminders, avoidance of places that reminded him of traumatic events, negative beliefs, guilt feelings, depressed and anxious mood, decreased motivation, decreased concentration, hypervigilance, exaggerated startle response, irritability, depressed mood, anxiety, 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, and suicidal ideation were noted. A mental status examination revealed largely normal results, with the exception of a mildly constricted affect, a depressed and anxious mood, and affirmation of suicidal ideation. Ultimately, the examiner found that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. Similarly, a contemporaneous TBI examination revealed mild memory loss (described as forgetting tasks and names), moderately impaired judgment (described as having his spouse answer most questions), social interaction is frequently inappropriate (described as being a loner, avoiding others, staying home), occasionally disoriented to one of the two aspects of orientation or often disoriented to one aspect of orientation (described as getting lost frequently, which required assistance), mild impairment of visual spatial orientation (described as occasionally getting lost in unfamiliar surroundings, but was able to use an assistive device such as global positioning system), and irritability that did not interfere with workplace interaction or social interaction. Upon review of the totality of the evidence, the Board resolves all doubt in favor of the Veteran and finds that his PTSD and cognitive disorder NOS due to TBI and post-concussive syndrome, with MDD and anxiety disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas. In this regard, the Veteran has affirmed experiencing suicidal ideation throughout the appeal period and, although he has clarified on numerous occasions that he has no active intent or plan to act on his ideation, the Board finds that frequency of his reported ideation signifies the severity of his anxiety and depressive symptoms, which have also caused significant marital strain and the dismissal from employment. Further, the Veteran has impaired memory, attention, judgment, concentration, and orientation, and reduced motivation, resulting in forgetting tasks and names, getting lost, and difficulty completing tasks, to include his doctoral degree. Moreover, as a result of the foregoing symptomatology, the Veteran has become impaired in his social functioning such that he withdraws from interaction with others and self-isolates. In this regard, over time, his psychiatric symptomatology has created tension with his spouse, which has required marital counseling. Furthermore, VA examiners have found that the Veteran’s psychiatric disability results in difficulty in establishing and maintaining effective work and social relationships and frequently inappropriate social interaction, described as being a loner, avoiding others, staying home. Additionally, in regard to his occupational functioning, the Veteran lost one job in 2014 after a DUI conviction and a second job in 2019 due to interpersonal difficulties, and has only maintained his current employment due to its flexible nature. The Board further finds that the Veteran’s hotel eviction and arrest for disorderly conduct in November 2019 support a finding of significantly impaired psychosocial functioning. As such, the Board finds that an initial 70 percent rating is warranted throughout the rating period. However, the Board finds that the evidence of record fails to demonstrate that the Veteran’s psychiatric disability results in total occupational and social impairment, so as to warrant the assignment of the next higher 100 percent rating. In this regard, at no point during the appeal period has the Veteran demonstrated symptomatology consistent with a 100 percent rating. Furthermore, while the Veteran has a tendency to withdraw from social interactions and self-isolate, he has maintained relationships with his spouse (albeit strained at times), children, family members, and old friends. He has also demonstrated that he is able to work throughout the appeal period, to include holding positions as a construction manager/engineer, adjunct professor, and consultant, and has completed credit hours towards his doctorate. Thus, it cannot be said that the Veteran’s psychiatric disability results in total occupational and social impairment. Consequently, an initial rating in excess of 70 percent for such disability is not warranted. 2. Entitlement to an initial rating in excess of 10 percent prior to January 18, 2020 and in excess of 40 percent thereafter for lumbar strain and scoliosis with degenerative arthritis and IVDS. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s lumbar strain and scoliosis with degenerative arthritis and IVDS has been evaluated as 10 percent disabling from January 31, 2014, the date of service connection, to January 18, 2020, and 40 percent disabling thereafter pursuant to DC 5243 pertinent to IVDS. In this regard, IVDS may be evaluated under either the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but no 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 rating 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 rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. The IVDS Formula provides that a 10 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. As an initial matter, the Board notes that the record does not show, and the Veteran does not contend, that he ever had an incapacitating episode of IVDS as defined by VA regulations, i.e., required physician prescribed bed rest. Therefore, the IVDS Formula would not allow for a higher rating at any point pertinent to the appeal period. Furthermore, the Board finds that a rating in excess of in excess of 10 percent prior to January 18, 2020, or in excess of 40 percent thereafter for the orthopedic manifestations of the Veteran’s lumbar spine disability under the General Rating Formula is not warranted. In this regard, the record does not reflect, nor do the Veteran’s statements show, that his range of motion was limited to the extent necessary to warrant higher ratings at any point during the on appeal. For the appeal period prior to January 18, 2020, in order to warrant the assignment of a higher rating, the evidence must show that the Veteran’s lumbar spine disability resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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. During this appeal period, the Veteran underwent a VA examination in May 2013, at which time he reported stiffness, fatigue, spasms, and decreased motion. However, upon examination, he demonstrated full, normal range of lumbar spinal motion. Specifically, the Veteran demonstrated 90 degrees of flexion and 30 degrees of extension, bilateral rotation, and bilateral lateral flexion. While the examiner noted that the Veteran reported experiencing pain on the last 10 degrees of each range of motion, he did not demonstrate any additional limitation of motion after repetitions of range of motion testing, and the examiner found no evidence of pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Further, while the Veteran was noted to have an antalgic gait during this examination, and while his service-connected spinal disability encompasses scoliosis (as service connection has been granted for “lumbar strain and scoliosis”), there is no evidence of either the Veteran’s antalgic gait scoliosis being the result of lumbar muscle spasms or guarding of sufficient severity to create this antalgic gait or spinal abnormality (as required by the rating criteria). Rather, in this case, the examiner found no evidence of either lumbar muscle spasms or guarding. The Veteran’s VA and private treatment records reflect his reports of experiencing low back pain, but do not contain any specific range of motion findings or other symptomatology that is applicable to evaluating the severity of the Veteran’s lumbar spine disability under the rating criteria. During his May 2019 Board hearing, the Veteran similarly reported experiencing ongoing low back pain and muscle spasms, noting that due to the severity of his back pain, he sometimes cannot get out of bed, can only stand for 10 minutes or sit for 1-2 hours before back becomes painful, and occasionally uses a cane when experiencing a flare-up of back pain. Based on the foregoing, the Board finds that the evidence of record fails to provide a basis for awarding an rating in excess of 10 percent for the appeal period prior to January 18, 2020. In that regard, the full ranges of lumbar motion demonstrated during the Veteran’s VA examination far exceeds the requisite ranges of motion required for the next higher rating of 20 percent. Likewise, even when considering that the Veteran experienced pain on the last 10 degrees of each range of lumbar motion, the resulting in a demonstrated pain-free range of lumbar flexion to 80 degrees and pain-free total thoracolumbar range of motion of 160 degrees, those ranges of motion fail to approximate those required for the next higher rating of 20 percent. Furthermore, the May 2013 examiner found no evidence of functional loss caused by such pain, or due to incoordination, fatigue, weakness, or lack of endurance. Accordingly, while the Board acknowledges the Veteran’s reports of pain and functional loss due to his lumbar spine disability during the appeal period, the Board finds that the objective data of record indicates that, even when considering such limitations due to pain and functional loss, the severity of the Veteran’s lumbar spine disability does not warrant an increased rating. Likewise, given the lack of any clinical observation of muscle guarding or spasm of sufficient severity to create an antalgic gait or abnormal spinal contour, an increased rating is not warranted on such basis. As discussed above, while the May 2013 examination noted the Veteran’s report of spasms and evidence of antalgic gait and scoliosis, physical examination failed to reflect muscle spasms or guarding that resulted in an abnormal gait or spinal contour. For the appeal period prior to January 18, 2020, in order to warrant the assignment of a higher rating, the evidence must show that the Veteran’s lumbar spine disability results in ankylosis. Specifically, a 50 percent rating is awarded based on evidence of unfavorable ankylosis of the thoracolumbar spine, and the next higher rating of 100 percent requires evidence of unfavorable ankylosis of the entire spine. However, while the record reflects that the Veteran’s lumbar spine disability results in severe limitation of motion, to include as detailed at the January 2020 VA examination, there is no evidence that results in any form of ankylosis. The Board has also considered whether separate ratings for associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are warranted at any point during the appeal period pursuant to Note (1) of the General Rating Formula. In this regard, the only objective neurologic abnormalities found to be associated with the Veteran’s lumbar spine are right and left sciatic nerve impairment, and the propriety of the ratings and effective dates assigned for such disabilities are not presently before the Board. In this regard, the March 2014 rating decision that awarded service connection for the Veteran’s lumbar spine disability also awarded separate ratings for right and left sciatic nerve impairment, but he elected to appeal only with respect to the rating assigned for the orthopedic manifestations of his lumbar spine disability. Furthermore, the evidence of record, to include the May 2013 and January 2020 VA examinations, does not demonstrate any additional objective neurologic abnormalities, to include bladder or bowel impairment, associated with the Veteran’s lumbar spine disability. Consequently, additional separate ratings for objective neurologic abnormalities associated with the Veteran’s lumbar spine disability are not warranted. Other Considerations In reaching its conclusions, the Board acknowledges the Veteran’s belief that his symptoms related to his psychiatric and lumbar spine disabilities are more severe than as reflected by the currently assigned ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran in regard to his psychiatric and lumbar spine disabilities, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected psychiatric and lumbar spine disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning additional staged ratings for such disabilities is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor, which has resulted in the award of an initial 70 percent rating for his psychiatric disability. However, insofar as the Board has otherwise denied higher or separate ratings for his psychiatric and lumbar spine disabilities, the preponderance of the evidence is against such aspects of the claims. Thus, the benefit of the doubt doctrine is not applicable in such regard and his initial rating claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.