Citation Nr: 21025112 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-28 606 DATE: April 27, 2021 ORDER Service connection for irritable bowel syndrome (IBS) is denied. Service connection, to include on a secondary basis, for memory loss disorder is denied. A 20 percent disability rating for bilateral dry eye syndrome is granted; subject to the laws and regulations governing the payment of monetary benefits. A 10 percent disability rating for degenerative arthritis of the lumbar prior to January 29, 2014 is granted; subject to the laws and regulations governing the payment of monetary benefits. A disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine from January 29, 2014 is denied. A 70 percent disability rating for major depressive disorder prior to January 29, 2014 is granted; subject to the rules and regulations governing the payment of monetary benefits. A disability rating in excess of 70 percent for major depressive disorder from January 29, 2014 is denied. FINDINGS OF FACT 1. The Veteran has no current diagnosis of IBS; and there is no competent evidence showing that any current gastrointestinal symptoms have resulted in functional impairments in earning capacity. 2. The evidence of record is insufficient to support a diagnosis of a disability manifested by memory loss, which could be attributed to active service or a service-connected disability. 3. The evidence of record reflects that the Veteran’s reported memory loss is a symptom of his service-connected major depressive disorder. 4. Throughout the entire period on appeal, the Veteran’s bilateral dry eye syndrome is manifested by symptoms comparable to a bilateral disorder of the lacrimal apparatus (epiphora, dacryocystitis, etc.). 5. Prior to January 29, 2014, the Veteran’s lumbar spine disability is manifested by painful motion, but not by forward flexion of the thoracolumbar spine limited to between 31 and 60 degrees, combined range of motion of the thoracolumbar spine to no greater than 120 degrees, or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. 6. From January 29, 2014, the Veteran’s lumbar spine disability is manifested by forward flexion of the thoracolumbar spine to, at worst, 70 degrees, but not by forward flexion of the thoracolumbar spine limited to between 31 and 60 degrees, combined range of motion of the thoracolumbar spine to no greater than 120 degrees, or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour.  7. Prior to January 29, 2014, the severity, frequency, and duration of the Veteran’s major depressive disorder symptoms most closely approximate occupational and social impairment, with deficiencies in most areas.  8. From January 29, 2014, the severity, frequency, and duration of the Veteran’s major depressive disorder symptoms most closely approximate occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for service connection for IBS are not met. U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for memory loss disorder are not met. U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for a 20 percent disability rating for bilateral dry eye syndrome are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.79, Diagnostic Code 6099-6025 (2019). 4. Prior to January 29, 2014 the criteria for a 10 percent disability rating for degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). 5. From January 29, 2014, the criteria for a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). 6. Prior to January 29, 2014, the criteria for a disability rating of 70 percent for major depressive disorder are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.1-4.3, 4.7, 4.126, 4.130, Diagnostic 9410.  7. From January 29, 2014, the criteria for a disability rating in excess of 70 percent for major depressive disorder are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.1-4.3, 4.7, 4.126, 4.130, Diagnostic Code 9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1991 to March 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in April 2019 and August 2020. In August 2017 written correspondence, the Veteran indicated that he wished to withdraw his request for a travel Board hearing. Accordingly, his travel Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2019). In August 2017, Attorney J. Michael Woods was appointed as the Veteran’s representative through a VA Form 21-22a. In October 2019 Attorney Woods informed the Veteran and VA that he wished to withdraw his representation of the Veteran. VA acknowledged the withdrawal of representation in November 2019. As the Veteran has not appointed a new representative, the Board concludes that the Veteran is unrepresented. An April 2020 rating decision assigned a 70 percent rating for the Veteran’s psychiatric disability, to now include major depressive disorder as a progression of the Veteran’s already-service connected dyssomnia, and a 10 percent disability rating for degenerative arthritis of the lumbar spine, both with effective dates of January 29, 2014, which the Regional Office indicated was the date the increased rating claims were received. The Board notes that this was likely a typographical error, as the increased rating claims were received on June 18, 2013. However, the error is also listed on the rating codesheet for the April 2020 rating decision. As such, the rating periods on appeal are a rating in excess of 30 percent for a psychiatric disability prior to January 29, 2014, a rating in excess of 70 percent for a psychiatric disability from January 29, 2014, a compensable rating for lumbar spine disability prior to January 29, 2014, and a rating in excess of 10 percent for a lumbar spine disability from January 29, 2014. As the rating periods prior to January 29, 2014 and from January 29, 2014 regarding these issues are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The Board’s August 2020 remand directed the RO to verify whether the Veteran had active military service in Southwest Asia, to obtain a VA addendum medical opinion as to the Veteran’s visual field defect, and to issue a supplemental statement of the case for the issues pertaining to service connection for memory loss, an increased rating for lumbar spine disability, and an increased rating for psychiatric disability. The Board finds that there has been substantial compliance with its August 2020 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, secondary service connection may be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or aggravated beyond its natural progression, by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A permanent worsening is not required, as secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence.” Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 1. Entitlement to service connection for IBS The Veteran seeks service connection for IBS, which he contends had its onset during his active military service. As an initial matter, the Veteran’s claim was remanded by the Board in August 2020 to verify whether the Veteran had active military service in Southwest Asia, to determine whether he may seek service connection for an undiagnosed illness, to include gastrointestinal symptoms. The Veteran’s military service has been verified, and it does not include service in Southwest Asia. A Gulf War examination is, therefore, not warranted, and the Board will proceed with its review. Upon review of the relevant evidence, the Board finds that service connection for IBS is not warranted. While the Veteran's service treatment records reflect treatment records reflect complaints of gastrointestinal symptoms, to include multiple daily bowel movements, diarrhea, and lower abdominal pain, there is no evidence of a diagnosis of IBS. Moreover, post-service VA and private treatment records, as well as the September 2013 and February 2020 VA examinations, are also silent for evidence of a diagnosis of IBS or any other gastrointestinal disorder. Most notably, the 2020 VA examiner indicated that the medical evidence of record reflects that the Veteran has inconsistently reported symptoms of loose stools while denying other characteristics of IBS. The examiner opined that any listed diagnosis of IBS in the Veteran’s post-service treatment records is based on the Veteran’s self-reported symptoms, which are found to be unreliable, and that, even if the Veteran’s self-reported history was considered reliable, his symptoms described do not fulfill the diagnostic criteria of IBS. Further, there no competent evidence showing that the Veteran’s current reported gastrointestinal symptoms have resulted in functional impairments in his earning capacity. Therefore, he has no current disability for which service connection may be granted. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding U.S. Court of Appeals for Veterans Claims erred as matter of law in finding a veteran's symptoms such as pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110 ). In Saunders, the Federal Circuit stressed that "[t]he policy underlying veterans compensation [is] to compensate veterans whose ability to earn a living is impaired as a result of their military service."; Cf. Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) ("disability" in VA regulations is "generally associated with the veteran's inability to perform certain acts"). In this case, these principles do not support a finding that the Veteran has a current IBS disability. Notably, he has not specified how he believes his subjectively reported gastrointestinal symptoms have resulted in specific functional impairments in his earning capacity. Additionally, there is no competent medical or vocational evidence suggesting that his current subjective gastrointestinal symptoms have functionally impaired his earning capacity in any way. The presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress specifically has limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. Here, there is simply no indication in the record that the Veteran has a current gastrointestinal disability, to include IBS, or that he has had any such disability at any time during the appeal period. Thus, where the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran's claim of service connection for IBS. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection, to include on a secondary basis, for memory loss The Veteran seeks service connection for memory loss, which he contends is caused or aggravated by his service-connected psychiatric disability. As previously stated, the Veteran’s claim was remanded by the Board in August 2020 to verify whether the Veteran had active military service in Southwest Asia, to determine whether he may seek service connection for an undiagnosed illness, to include memory loss symptoms. The Veteran’s military service has been verified, and it does not include service in Southwest Asia. A Gulf War examination is, therefore, not warranted, and the Board will proceed with its review. Upon review of the relevant evidence, the Board finds that service connection for a disability manifested by memory loss is not warranted. The medical evidence of record, to include the September 2013, February 2020, and April 2020 VA examinations and post-service treatment records, reflect that the Veteran’s memory difficulties are a symptom of his service-connected major depressive disorder. The September 2013 VA examiner indicated that loss of memory was not found during examination. The February 2020 VA examiner found that no separate diagnosis of cognitive impairment is warranted, as the Veteran’s memory difficulties were found to be a symptom of his service-connected major depressive disorder. This finding was also confirmed by the April 2020 VA examiner, who found that the Veteran’s memory issues have a clear and specific etiology, and that these memory issues are found to be a symptom of his already service-connected major depressive disorder. Here, the medical evidence of record shows that the Veteran’s claimed memory loss is merely a symptom of his service-connected major depressive disorder, rather than a separate, diagnosed disability. Therefore, the Veteran has no current disability for which service connection may be granted. Where the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim of service connection for a disability manifested by memory loss. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019).  The basis of disability ratings 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 (2019).  The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2019).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2019).  While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  1. Entitlement to a compensable disability rating for bilateral dry eye syndrome The Veteran seeks a higher rating for his service-connected bilateral dry eye syndrome, which is currently rated as noncompensable under Diagnostic Code 6099-6018.  Diagnostic Code 6099-6018 indicates that the Veteran’s bilateral dry eye syndrome is rated analogous to a disease of the eye (Diagnostic Code 6099) under the criteria for chronic conjunctivitis (Diagnostic Code 6018).  The Board acknowledges that dry eye syndrome is not a disorder specifically listed in the rating schedule and, therefore, it should be rated by analogy to a closely related disease or injury.  38 C.F.R. §§ 4.20, 4.27.  Chronic conjunctivitis (Diagnostic Code 6018) and disorders of the lacrimal apparatus (Diagnostic Code 6025) have symptoms such as watering of the eyes, redness, and eye discharge, which most closely relate to the Veteran’s dry eye syndrome symptoms.  Of the pertinent diagnostic codes, the Board finds that Diagnostic Code 6025 is most appropriate because the evidence indicates that the Veteran’s dry eye syndrome is pathologically related to impairment of the lacrimal apparatus.  Accordingly, the Veteran’s bilateral dry eye syndrome will be rated under 38 C.F.R. § 4.79, Diagnostic Code 6099-6025, by analogy to a disorder of the lacrimal apparatus.  38 C.F.R. §§ 4.20, 4.27; Lendermann v. Principi, 3 Vet. App. 345 (1992).  During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings for the eyes.  89 Fed. Reg. 15316 (Apr. 10, 2018).  The final rule went into effect May 13, 2018.  Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.   Under both the former and revised criteria, Diagnostic Code 6025 assigns a 10 percent rating for evidence of a disorder of the lacrimal apparatus affecting one eye, while a 20 percent rating is assigned for evidence of a disorder of the lacrimal apparatus affecting both eyes.  38 C.F.R. § 4.79.  The lacrimal apparatus is defined as “the system concerned with the secretion and circulation of tears and the normal fluid of the conjunctival sac; it consists of the lacrimal gland and ducts, and associated structures.”  See Dorland’s Medical Dictionary (30th Ed. 2003).  Based on a review of the relevant evidence, the Board finds that a 20 percent disability rating is warranted for the Veteran’s bilateral dry eye syndrome. Specifically, the September 2013 and February 2020 VA examination, as well as post-service VA treatment records, reflect that the Veteran regularly uses artificial tears to treat his bilateral eye symptoms of burning and dry eyes. Further, in a December 2020 VA addendum opinion, the examiner indicated that it is more likely than not that the Veteran’s bilateral dry eye syndrome is a disorder of the lacrimal apparatus. Here, the medical evidence of record for the entire period on appeal reflects that the Veteran’s bilateral dry eye syndrome is pathologically related to a dysfunction of the lacrimal apparatus. Diagnostic Code 6025 contemplates an eye disability involving “the secretion and circulation of tears and the normal fluid of the conjunctival sac,” and, here, the Veteran’s bilateral dry eye disability requires treatment with artificial tears.  As such, under Diagnostic Code 6099-6025, a 20 percent disability rating is warranted for a bilateral disorder of the lacrimal apparatus of the Veteran’s eyes.     The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing that the Veteran’s other diagnosed eye disorders, namely, contraction of visual fields, are either attributable to visual impairment or related to the Veteran’s service-connected bilateral dry eye syndrome. The December 2020 examiner opined that visual field loss is not caused by or related to dry eyes, as dry eyes may cause blurry vision but not permanent field loss. The examiner also provided a negative nexus opinion as to direct service connection for visual field loss, indicating that the Veteran’s service treatment records are silent for evidence of an eye disease in service that would cause visual field loss. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.  In conclusion, as the Board finds that a 20 percent disability rating is warranted for the Veteran’s bilateral dry eye syndrome under Diagnostic Code 6099-6025, the Veteran’s claim is granted. 2. Entitlement to a compensable disability rating for degenerative arthritis of the lumbar spine prior to January 29, 2014 3. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine from January 29, 2014 The Veteran seeks higher ratings for his service-connected degenerative arthritis of the lumbar spine, which is currently rated as noncompensable under Diagnostic Code 5242 (General Rating Formula for Diseases and Injuries of the Spine – Degenerative arthritis) prior to January 29, 2014 and as 10 percent disabling under Diagnostic Code 5242 from January 29, 2014. 38 C.F.R. § 4.71a, Schedule of ratings – musculoskeletal system.  While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the rating criteria for Diagnostic Code 5242 was not changed.  Under Diagnostic Code 5242, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  Id.   Normal thoracolumbar spine motion includes forward flexion from 0 to 90 degrees and normal combined range of motion of the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Plate V.   Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Diagnostic Code 5242 at Note 1.    Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”  Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Unfavorable ankylosis is defined as “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.”  38 C.F.R. § 4.71a, Diagnostic Code 5242 at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis.  Id.    Period on appeal prior to January 29, 2014 Upon review of the relevant evidence, the Board finds that, prior to January 29, 2014, a 10 percent disability rating is warranted for the Veteran’s degenerative arthritis of the lumbar spine. Specifically, the medical evidence of record, to include the September 2013 VA examination and post-service treatment records, reflects that the only manifestation of the Veteran’s lumbar spine disability is limitation of motion due to pain. The September 2013 VA examiner noted that range of motion testing performed during the examination was unreliable, as the Veteran displayed poor effort. While the Veteran reported painful flare-ups in his lumbar spine with repetitive bending, the VA examiner found no evidence of ankylosis or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability.  See 38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Id.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Id.  For this reason, a 10 percent rating is warranted for the Veteran’s lumbar spine disability prior to January 29, 2014 for limitation of motion due to pain, as this is the minimum compensable rating for flexion of the lumbar spine under Diagnostic Code 5242. See 38 C.F.R. §§ 4.59, 4.71a; Burton v. Shinseki, 25 Vet. App. 1 (2011). For a higher 20 percent rating to be warranted, the evidence must show limitation of flexion of the thoracolumbar spine between 31 and 60 degrees, combined range of motion of the thoracolumbar spine to no greater than 120 degrees, or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. Here, the 2013 VA examination fails to show these criteria, as the Veteran’s lumbar spine forward flexion could not be recorded upon examination, and the examination was silent for evidence of ankylosis, abnormal gait, and abnormal spinal contour. Post-service records prior to January 29, 2014 are also silent for these criteria. Regarding neurological impairment, the lay and medical evidence of record prior to January 29, 2014 is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability. Therefore, prior to January 29, 2014, a 10 percent disability rating, but no higher, is warranted for the Veteran’s degenerative arthritis of the lumbar spine under Diagnostic Code 5242 based on painful limitation of motion. Period on appeal from January 29, 2014 Upon review of the relevant evidence, the Board finds that, from January 29, 2014, a disability rating in excess of 10 percent for the Veteran’s degenerative arthritis of the lumbar spine is not warranted. Specifically, the medical evidence of record, to include the February 2020 VA examination and post-service treatment records, does not support a finding of forward flexion of the thoracolumbar spine to between 31 and 60 degrees, combined range of motion of the thoracolumbar spine to no greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. During the February 2020 VA examination, initial range of motion was to 75 degrees in forward flexion, with combined range of motion of the lumbar spine to 210 degrees, even with pain noted.  The examiner found there to be no additional range of motion loss with repetitive use. Estimated range of motion of the lumbar spine with reported flare-ups was to 70 degrees in forward flexion, with combined range of motion of the lumbar spine to 180 degrees. Further, the examiner found no evidence of abnormal gait or abnormal spinal contour, ankylosis, or intervertebral disc syndrome (IVDS). As the Veteran is already in receipt of a 10 percent disability rating under Diagnostic Code 5242 for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, for a higher 20 percent rating to be warranted, the evidence must show either forward flexion of the thoracolumbar spine between 31 and 60 degrees; combined range of motion of the thoracolumbar spine to no greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Here, the medical evidence from January 29, 2014 to the present, to include the February 2020 VA examination and post-service treatment records, only reflects forward flexion of the lumbar spine to, at worst, 70 degrees and combined range of motion of the lumbar spine to, at worst, 180 degrees, and it fails to show that there are muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. Regarding neurological impairment, the lay and medical evidence of record from January 29, 2014 to the present is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability. Therefore, the currently assigned 10 percent disability rating for the Veteran’s degenerative arthritis of the lumbar spine from January 29, 2014 under Diagnostic Code 5242 is appropriate and a higher rating is not warranted.  In sum, a 10 percent disability rating for degenerative arthritis of the lumbar spine prior to January 29, 2014 under Diagnostic Code 5242 is granted and a disability rating in excess of 10 percent for lumbar spine disability from January 29, 2014 under Diagnostic Code 5242 is denied.    4. Entitlement to a disability rating in excess of 30 percent for major depressive disorder prior to January 29, 2014 5. Entitlement to a disability rating in excess of 70 percent for major depressive disorder from January 29, 2014 The Veteran asserts that his service-connected major depressive disorder warrants higher ratings. The issue in this appeal is whether the Veteran’s associated symptoms cause the level of impairment required for a disability rating of 50 percent or higher prior to January 29, 2014 and a disability rating of 100 percent from January 29, 2014.  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 (2019).  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 Veteran’s major depressive disorder is currently rated as 30 percent disabling prior to January 29, 2014 and as 70 percent disabling from January 29, 2014 under Diagnostic Code 9410. 38 C.F.R. § 4.130 (2019).  Under the General Formula, a 50 percent rating is warranted for 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 per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130.  A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130.  Period on appeal prior to January 29, 2014 Upon review of the relevant evidence, the Board concludes that, for the period on appeal prior to January 29, 2014, the Veteran’s symptoms most closely approximate the symptoms associated with a 70 percent rating, and result in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating.  Post-service VA and private treatment records and the September 2013 VA examination show that the Veteran’s major depressive disorder is manifested by symptoms associated with a 70 percent rating (near-continuous depression and impaired impulse control). The Veteran also had symptoms that are not listed with a specific rating, specifically, sleep disturbances. The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptom of sleep disturbances more closely approximate the symptoms contemplated by a 70 percent rating, which correlate to sleep disturbances that are more severe, more frequent, and longer in duration. Specifically, post-service treatment records reflect a longstanding history of insomnia which affects the Veteran’s daily activities. In sum, the Veteran’s unlisted symptom of sleep disturbances are similar in severity and frequency to those symptoms contemplated by a 70 percent rating.  The Board also finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating.  Throughout the period on appeal prior to January 29, 2014, the Veteran experienced occupational and social impairment, with deficiencies in most areas. Most notably, post-service private treatment records indicate that the Veteran experienced near-continuous depression, which interfered with his daily activities, and that he also experienced irritability and periods of violence towards others, to include family members. He also displayed symptoms of poor concentration and limited insight and judgment. Here, the Board finds that, throughout the period on appeal prior to January 29, 2014, the Veteran’s major depressive disorder symptoms consistently reflect near-continuous depression and impaired impulse control which are productive of occupational and social impairment, with deficiencies in most areas, and are contemplated by the 70 percent rating criteria.  The Board has not found that the severity, frequency, and duration of the Veteran’s psychiatric symptoms has risen to the level contemplated by a 100 percent disability rating prior to January 29, 2014.  Throughout the Veteran’s post-service treatment records and VA examinations, the Veteran regularly denied intent or a plan involving self-harm. Further, the medical evidence or record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living. As such, a higher 100 percent rating for the Veteran’s major depressive disorder is not warranted. In conclusion, the Board finds that, for the period on appeal prior to January 29, 2014, the Veteran’s major depressive disorder symptoms consistently reflect near-continuous depression and impaired impulse control which more nearly approximates a 70 percent rating for occupational and social impairment, with deficiencies in most areas.  As such, a disability rating of 70 percent, but no higher, for major depressive disorder prior to January 29, 2014 is granted.  Period on appeal from January 29, 2014 Upon review of the relevant evidence, the Board concludes that, for the period on appeal from January 29, 2014, the Veteran’s symptoms most closely approximate the symptoms associated with a 70 percent rating, and result in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating.  Post-service VA and private treatment records and the February 2020 VA examination show that the Veteran’s major depressive disorder is manifested by symptoms associated with a 70 percent rating (near-continuous depression, impaired impulse control, and difficulty in adapting to stressful circumstances). The Veteran also had symptoms that are not listed with a specific rating, specifically, sleep disturbances. The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptom of sleep disturbances more closely approximate the symptoms contemplated by a 70 percent rating, which correlate to sleep disturbances that are more severe, more frequent, and longer in duration. Specifically, post-service treatment records and the 2020 VA examination reflect insomnia that is significant in nature. The Veteran denied being able to sleep without prescribed medication. If he did not sleep, he experienced depressed mood and anxiety the next day. In sum, the Veteran’s unlisted symptom of sleep disturbances are similar in severity and frequency to those symptoms contemplated by a 70 percent rating.  The Board also finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating.  Throughout the period on appeal from January 29, 2014 to the present, the Veteran experienced occupational and social impairment, with deficiencies in most areas. Most notably, the 2020 VA examination and post-service VA and private treatment records indicate that the Veteran experiences near-continuous depression and anxiety, which interferes with his daily activities, as well as significant anger and irritability and difficulty adapting to stressful circumstances. Here, the Board finds that, throughout the period on appeal from January 29, 2014, the Veteran’s major depressive disorder symptoms consistently reflect near-continuous depression, impaired impulse control, and difficulty adapting to stressful circumstances, which are productive of occupational and social impairment, with deficiencies in most areas, and are contemplated by the 70 percent rating criteria.  The Board has not found that the severity, frequency, and duration of the Veteran’s psychiatric symptoms has risen to the level contemplated by a 100 percent disability rating for the rating period on appeal from January 29, 2014.  Throughout the Veteran’s post-service treatment records and VA examinations, the Veteran regularly denied intent or a plan involving self-harm. Moreover, the medical evidence or record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living. Further, the 2020 VA examiner found that the Veteran is capable of managing his financial affairs, he was fully oriented, his speech was coherent, and his thought process was organized. As such, a higher 100 percent rating for the Veteran’s major depressive disorder is not warranted. In conclusion, the Board finds that, for the period on appeal from January 29, 2014, the Veteran’s major depressive disorder symptoms consistently reflect near-continuous depression and impaired impulse control which more nearly approximates a 70 percent rating for occupational and social impairment, with deficiencies in most areas.  As such, a disability rating in excess of 70 percent for major depressive disorder from January 29, 2014 is denied.  In sum, a 70 percent disability rating for major depressive disorder prior to January 29, 2014 is granted and a disability rating in excess of 70 percent for major depressive disorder from January 29, 2014 is denied.    KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.