Citation Nr: 21027552 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-37 582 DATE: May 6, 2021 ORDER Entitlement to an evaluation of 30 percent for major depressive disorder for the period prior to October 7, 2019 is granted. Entitlement to an evaluation in excess of 70 percent for major depressive disorder with anxious distress for the period from October 7, 2019 is denied. Entitlement to an evaluation in excess of 10 percent for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, for the period prior to September 30, 2019 is denied. Entitlement to an evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, for the period from September 30, 2019 is denied. Entitlement to an evaluation in excess of 10 percent for costochondritis is denied. FINDINGS OF FACT 1. Prior to October 7, 2019, the Veteran's depressive disorder resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from October 7, 2019, the Veteran's major depressive disorder with anxious distress is manifested by occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 3. The Veteran's lumbar spine disability was manifest by forward flexion no more restricted than 85 degrees, for the period prior to September 30, 2019. 4. The Veteran's lumbar spine disability is manifest by forward flexion no more restricted than 60 degrees, without ankylosis for the period from September 30, 2019. 5. The Veteran's chronic costochondritis causes no more than moderate muscle impairment productive primarily of pain and fatigue. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 30 percent but no higher prior to October 7, 2019 for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434 (2019). 2. The criteria for a disability rating in excess of 70 percent for major depressive disorder for the period from October 7, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2019). 3. The criteria for a rating in excess of 10 percent for a lumbar spine disability for the period prior to September 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). 4. The criteria for a rating in excess of 20 percent for a lumbar spine disability for the period from September 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). 5. The criteria for an initial rating in excess of 10 percent for costochondritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Code 5321 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2008 to May 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This matter was previously before the Board in September 2018, and was remanded for further development. The Veteran was also afforded a hearing before the undersigned in April 2018. A transcript of the hearing is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a compensable evaluation for major depressive disorder for the period prior to October 7, 2019 2. Entitlement to an evaluation in excess of 70 percent for major depressive disorder with anxious distress for the period from October 7, 2019 The Veteran contends that his major depressive disorder with anxious distress warrants an initial compensable evaluation for the period prior to October 7, 2019 and in excess of 70 percent thereafter. 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). Under the General Formula, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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 Veteran was afforded a VA mental disorders examination in December 2011. He was confirmed to have a diagnosis of major depressive disorder. The examiner noted that the Veteran had mild symptoms. The Veteran reported functioning well in school, but did not find school work particularly demanding, was not working, and had concerns he would have difficulty handling both work and school. The examiner assessed that the Veteran's depressive disorder was productive of symptoms not severe enough to either interfere with occupational and social functioning or require continuous medication. Symptoms were noted to include depressed mood, anxiety, flattened affect and disturbances of motivation and mood. No other symptoms were noted. The Veteran reported having difficulty getting out of bed and having a "negative outlook." He also reported feeling impatient and easily frustrated and very harshly critical of himself. He further indicated having poor quality sleep and waking up feeling "miserable", and without pleasure since the military. The Veteran was afforded another VA mental disorders examination in October 2019. His diagnosis was confirmed as major depressive disorder with anxious distress and mood-congruent psychotic features. The Veteran's disorder was assessed to be productive of symptoms resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Symptoms were noted to include depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; and persistent delusions or hallucinations. No other symptoms were noted. The Veteran presented with a clean but disheveled appearance; his hygiene was adequate; he had unremarkable posture and gait; his movement was normal movement; he had no motor or verbal tics; he displayed a co-operative attitude, a verbose response pattern, clear speech at an ordinary volume and rate; he was fully oriented; his mood was anxious and depressed; he had a coherent thought process and logical reasoning; concentration and memory issues were reported; and finally, the Veteran reported suicidal ideation. The examiner issued an addendum opinion to clarify some conflicting references to the Veteran's persistent delusions and hallucinations in June 2020. The examiner clarified that the Veteran did in fact have persistent delusions and/or hallucinations. Furthermore, though the Veteran had no current (within last 6 weeks of the examination) suicidal or homicidal ideation, he has a history of suicidal ideation. The Veteran denied a history of suicide attempts, but reported current suicidal ideation. The Veteran denied a specific intent or plan to kill himself, and suicidal ideation was passive in nature. The Veteran testified before the undersigned during an April 2018 hearing. He reported being on medication which at first helped him, but because there were harmful side effects, he had to adjust the dosage to a smaller one which resultingly no longer helps his mood or focus. He also reported weekly therapy to develop coping mechanisms. Finally, the Veteran testified that his depression has affected his work because he sometimes does not go in, and his schoolwork is also affected because of severe lack of focus and motivation. VA medical records are reflective of initial evaluation of his mental health in 2015 with subsequent follow up through 2016. An October 2015 depression screen reflects that the Veteran reported hopelessness, lack of interest and nightmares daily. His mental health evaluation indicates that he reported being unable to sleep, or concentrate, and that both his spouse and his colleagues have strongly encouraged him to seek treatment. For the period prior to October 7, 2019 VA and private treatment records, the December 2011 VA examination, and the Veteran's lay statements show that the Veteran's depressive disorder was manifested primarily by symptoms productive of 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 normal conversation) due to such symptoms as depressed mood, anxiety and chronic sleep impairment. The Board thus finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 30 percent rating. See 38 C.F.R. § 4.126. While the Veteran did experience symptoms contemplated by a 50 percent rating disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. Further, the December 2011 VA examiner indicated that the Veteran's symptoms were not severe enough to interfere with occupational functioning. In short, the evidence supports a finding that the Veteran's major depressive disorder warrants an initial 30 percent rating. However, the Board further finds that the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 50 percent rating. After a review of the evidence of record, the Board finds that the Veteran has not demonstrated the type and degree of symptoms, such as flattened affect, 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, or impaired abstract thinking, that lead to occupational and social impairment with reduced reliability and productivity. There is also no evidence of weekly panic attacks. The presence or absence of certain symptoms is not necessarily determinative. Those symptoms must ultimately result in the occupational and social impairment in the referenced areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Here, however, the treatment records and VA examination reports are not indicative of occupational and social impairment with reduced reliability and productivity that approximate the criteria for a 50 percent, the next higher rating. The findings of the VA examiner and treatment records demonstrate that, for the period prior to October 7, 2019, the Veteran experienced no more than occupational and social impairment with symptoms that are transient or mild and decreased work efficiency and ability to perform occupational tasks only during period of significant stress. The records show that the Veteran had a productive work history. There is no indication that his psychiatric disorder had any negative effect on his ability to work beyond that envisioned by the 30 percent rating. He was also shown to enjoy a positive home and family life. This Board finds that this evidence weighs against the claim for an increased rating in excess of 30 percent for the psychiatric disability. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the relevant rating criteria. Many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that, while not specifically listed, are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board finds that the Veteran's symptoms as described above are consistent with the currently assigned 30 percent disability rating and do not meet the criteria for a higher rating prior to October 7, 2019. For the period from October 7, 2019, the Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran denied any active intent, or a plan involving self-harm in existing treatment records, and during the October 2019 VA examination, as clarified by the June 2020 addendum. Indeed, the Veteran described his thoughts as passive. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating on and after October 7, 2019. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The October 2019 VA examination and associated June 2020 addendum indicates that the Veteran had depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; and persistent delusions or hallucinations. While the Veteran did experience symptoms contemplated by a 100 percent ratingobsessional rituals which interfere with routine activities and persistent delusions or hallucinationsthe evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, there is no indication the Veteran is unemployable due to his disabilities, as he is currently employed. In fact, though the Veteran is reported to experience severe impairment with establishing and maintaining work and social relationships, the June 2020 VA addendum indicates that he is still married, and sees his family as a protective factor against his thoughts of suicide. Furthermore, he denied work related issues in the October 2019 VA examination. This is compelling evidence against a finding that the Veteran experiences total social and occupational impairment to warrant a 100 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating on and after October 7, 2019. The criteria for a 100 percent or higher rating are not met and the appeal must be denied for the period from October 7, 2019. 3. Entitlement to an evaluation in excess of 10 percent for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, for the period prior to September 30, 2019 4. Entitlement to an evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, for the period from September 30, 2019 The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. For the period prior to September 30, 2019, the Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242, and thereafter, under Diagnostic Code 5242-5243. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, DC 5242 was only applicable to degenerative arthritis of the spine. As of February 7, 2021, under the amended criteria, DC 5242 was expanded to include degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. Also prior to the regulatory change, DC 5243 instructed that intervertebral disc syndrome (preoperatively or postoperatively) be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. As of February 7, 2021, under the amended criteria, DC 5243 is only assignable when there is disc herniation with compression and/or irritation of the adjacent nerve root; and Diagnostic Code 5242 is to be assigned for all other disc diagnoses. Finally, prior to February 7, 2021, Diagnostic Code 5010 instructed that arthritis due to trauma, substantiated by x-ray findings was to be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010. In turn, degenerative arthritis, established by X-ray findings, was to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 clarified that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. The x-ray finding requirement was eliminated. DC 5003 remains unchanged. The Board notes that the General Rating Formula for Diseases and Injuries of the Spine remains unchanged. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a lumbar spine disability for the period prior to September 30, 2019, and in excess of 20 percent thereafter. The Veteran was afforded a VA examination in December 2011 to assess the nature and severity of his lumbar spine disability. The Veteran's diagnosis was noted to be degenerative disc disease and degenerative joint disease of the lumbar spine with chronic lumbago. The Veteran reported that his lumbar spine disability was productive of constant low back pain which inhibits sitting more than an hour or so, with standing limited to 20-30 minutes. He also reported having radiating pain down his lower extremity once a month. He reported flare ups with bending and yoga-type exercises, productive of increased pain. Range of motion testing reflected forward flexion limited to 85 degrees, with pain at 85 degrees; extension to 25 degrees with pain at 25 degrees; right lateral flexion to 30 degrees and left lateral flexion to 30 degrees, with pain at 30 degrees bilaterally; bilateral lateral rotation limited to 25 degrees with pain at 20 degrees. The Veteran was noted to be unable to perform repetitive use testing, as he reported that it would flare up his back and declined testing. The Veteran's lumbar spine disability was noted to be productive of functional impairment, including less movement than normal, excess fatigability and pain on movement. Though localized tenderness was identified in the lower back, there was no guarding or muscle spasm. Muscle strength was normal, and reflex and sensory exams were normal. No radiculopathy or neurologic abnormalities were noted. The Veteran did not have a diagnosis of IVDS. Diagnostic testing reflective of arthritis, including facet arthropathy and mild degenerative disc disease shown on MRI was noted. The Veteran's lumbar spine disability was noted to functionally impair the Veteran with heavy lifting, repetitive bending, prolonged sitting, standing or walking. The Veteran was afforded another VA spine examination in September 2019. The examiner indicated that the claims file was reviewed and confirmed the Veteran's diagnoses of lumbar degenerative arthritis and further noted a diagnosis of intervertebral disc syndrome. The Veteran indicated he suffers from symptoms of limited movement, including with bending, twisting, and lifting. The Veteran also reported radiating pain down the lower extremities. The Veteran again reported flare ups of the spine, at a frequency of once every two months, with severe symptomatology, alleviated by steroids and pain medication. Range of motion testing reflected forward flexion limited to 60 degrees; extension limited to 10 degrees; right and left lateral flexion limited to 20 degrees; and right and left lateral rotation limited to 30 degrees. Pain was noted on all planes, and resulted in functional loss. There also was pain with weight bearing and objective evidence of localized tenderness or pain to palpation of the affected joint. The Veteran was noted to be able to perform repetitive use testing with 3 repetitions. The range of motion was unchanged and no additional functional loss was found. The examination was noted neither to be conducted after repeated use over time nor during a flare up. Pain was assessed to limit the Veteran's functional ability on repetitive use over time, though range of motion estimates remained unchanged. However, on flare up, the examiner indicated that both pain and weakness cause functional loss. Further, the Veteran's range of motion restrictions on flare up were estimated as: forward flexion limited to 60 degrees; extension limited to 10 degrees; right and left lateral flexion limited to 15 degrees; and right and left lateral rotation limited to 30 degrees. The Veteran had no guarding or muscle spasm. No additional factors were identified as contributing to the Veteran's disability. Muscle strength testing and reflex examinations were normal. On sensory examination, the bilateral lower legs, ankles, feet and toes presented decreased sensation to light touch. The Veteran had mild radicular symptoms in the bilateral lower extremity sciatic nerves, for which he is already separately compensated. There was no ankylosis of the spine. As noted above, the examiner also assigned a diagnosis of IVDS. However, the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12-month period. Mild degenerative changes were noted on radiographic testing. Finally, functional impact was noted to include limited bending, stooping, pushing, pulling, carrying, and lifting objects in excess of 20 pounds. The Veteran testified before the undersigned during an April 2018 hearing. He reported going to urgent care facilities approximately once a month for back pain. He also testified he takes anti-inflammatory medications, as well as pain and muscle relaxants. The Veteran reported flare ups lasting a couple of days, producing a burning, aching, sharp pain sensation with muscle spasms and inflammation, radiating into the lower extremities. He further testified his motion is restricted, especially when bending over to tie his shoes, and being in a stationary position for an extended period of time, as well as lifting. He stated he recalls two times since service he was prescribed bed rest by a physician for his back disability. He testified that spinal fusion surgery was recommended to him. VA medical records show that the Veteran sought medical care for low back pain in February 2012, September and October 2013, and in May and June 2015, including emergency care. He was diagnosed with degenerative disc disease in February 2012, and reported chronic low back pain in 2013, as well as an exacerbation in 2015. The Board finds that for the period prior to September 30, 2019, the preponderance of the evidence is against a rating in excess of 10 percent for a lumbar spine disability. In so finding, the Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare ups are of severe intensity, approximately once a month and with strenuous activities, would not result in limitation of motion more nearly approximating 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. Additionally, though the Veteran reported muscle spasms, VA medical examinations of record do not reflect muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Furthermore, the only VA examination and range of motion testing of record during this appellate period reflects that forward flexion was limited to 85 degrees, and combined range of motion was at 195 degrees. See December 2011 VA examination. Thus, a rating in excess of 10 percent is simply not warranted for this period. Further, during this appellate period, though the Veteran reported flare ups and pain exacerbations for which he presented to the emergency department at VA in May 2015, he was not diagnosed with IVDS. Furthermore, the emergency note does not indicate that the Veteran was prescribed bed rest by a physician during this period, though the Board acknowledges the Veteran's testimony that he was. Therefore, assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) is not applicable during this appellate period. Furthermore, the Board notes that throughout this period on appeal, the Veteran's record does not reflect a diagnosis of traumatic arthritis. Therefore, a rating under DC 5010 is not applicable. Instead, the Veteran is clearly diagnosed with degenerative arthritis. See December 2011 and September 2019 VA examinations. Thus, the Veteran is correctly evaluated under the General Rating Formula for Diseases and Injuries of the Spine based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the period from September 30, 2019, the preponderance of the evidence is against a rating in excess of 20 percent for a lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare ups are of severe intensity, approximately once a month and with strenuous activities, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, to warrant a higher rating for this period. Additionally, though the Veteran reported muscle spasms, VA medical examinations of record do not reflect muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Furthermore, the only VA examination and range of motion testing of record during this appellate period reflects that forward flexion was limited at worst to 60 degrees, with combined range of motion was at 160 degrees, even when considering additional limitation of motion due to flare-ups. Additionally, the Veteran has not been assessed to have any ankylosis. See September 2019 VA examination. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. While the Veteran was diagnosed with IVDS during this appellate period, and his testimony of bed rest prescribed by a physician is acknowledged, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this regard, review of VA medical records, including in May 2015 when the Veteran was seen at the emergency department for low back pain exacerbation, does not reflect that the Veteran was prescribed bed rest or diagnosed with IVDS at the time. Furthermore, both VA examinations of record reflect that the Veteran was not prescribed bed rest by a physician. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Board finds the Veteran's statements regarding his symptomatology, namely of pain, to be credible. However, the objective medical testing of record simply does not warrant a higher rating for the respective appellate periods under the applicable rating criteria. Additionally, the Board is cognizant of the musculoskeletal diagnostic code changes mentioned at the outset of this decision. However, these changes do not affect the disability ratings in this matter. The Veteran continues to be rated under the General Rating Formula For Spine Disabilities, which remains unchanged. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the Veteran's lumbar spine disability for the period prior to September 30, 2019, and in excess of 20 percent thereafter. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to an evaluation in excess of 10 percent for costochondritis The Veteran's costochondritis is currently rated 10 percent disabling under Diagnostic Code 5399-5321. Costochondritis is not listed in the rating schedule. Where a particular disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical area and symptomatology, are closely analogous. 38 C.F.R. §§ 4.20, 4.27; Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992). Here, because there is no specific diagnostic code for costochondritis, the Veteran's condition was initially rated by analogy under Diagnostic Code 5399-5321, which governs the muscles of respiration. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Id. Diagnostic Code 5321 is the provision for evaluating injuries to Muscle Group XXI, the thoracic muscle group whose function consists of respiration. Diagnostic Code 5321 provides a noncompensable rating for slight impairment of the muscles of respiration (the thoracic group), a 10 percent rating for moderate impairment, and a maximum 20 percent disability rating for severe or moderately severe impairment. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, Diagnostic Code 5321. The factors for determining whether muscle disability is slight, moderate, or severe are particular to the evaluation of healed wounds, such as those from gunshots or other missiles. 38 C.F.R. §§ 4.55, 4.56. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). A slight disability of muscles is defined as a simple wound of muscle without debridement or infection. Service treatment records (STRs) will show a superficial wound with brief treatment and return to duty healing with good functional results and no cardinal signs or symptoms of muscle disability. There will be minimal scarring and no evidence of facial defect, atrophy, or impaired tonus. Also, no impairment of function or retained metallic fragments retained will be present. 38 C.F.R. § 4.56(d)(1). A moderate disability of muscles is defined as a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Objective findings will include entrance and (if present) exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe disability of muscles is defined as a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. Service department records should show hospitalization for a prolonged period for treatment of wound. Objective findings will include entrance and (if present) exit scars indicating track of missile through one or more muscle groups along with indications on palpation of exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of the muscles is defined as a through and through or deep penetrating wound due to high-velocity missile, or large, or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, sloughing of soft parts, and intramuscular binding and scarring. Objective findings will include ragged, depressed and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; and severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. 38 C.F.R. § 4.56 (d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies; (b) adhesion of the scar; (c) diminished muscle excitability on electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile; or (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4). Finally, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). The Veteran was afforded a VA general medical examination in December 2011. The Veteran was confirmed to have a diagnosis of costochondritis. It was reported that due to costochondritis, the Veteran is unable to lift heavy objects above shoulder level or do bench pressing. The Veteran reported chest pain in the anterior chest with difficulty breathing as well as pain in the left costochondral junction, popping out of place. The examiner noted no prominence to palpation, though there was some tenderness in the left costochondral junction. The Veteran was afforded another VA examination in September 2019. The Veteran reported that since its onset, symptoms of pain on the right lower ribs and left sternum still persist, as well as swelling. Functional impact was noted to include limitations when lifting objects. The Veteran's muscle injury was noted to be non-penetrating. The costochondritis was noted to affect Group XXI muscles bilaterally. No other signs or symptoms were identified. In fact the Veteran was noted to have no loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination or uncertainty of movement resulting from costochondritis. Muscle strength testing was normal, and no atrophy was identified. The examiner assessed that there was no resulting functional impact. The Veteran testified before the undersigned during an April 2018 hearing. He described chest pain bilaterally, more pronounced on the right side. He indicated having received some chiropractic care, and that he experiences rib swelling, popping and some difficulty taking full breaths. The frequency of the popping was noted to be approximately five times a day. He also noted that his muscle relaxant medication for his back disability also helps his costochondritis. As set forth above, the record reflects that the symptoms of costochondritis are chest pain, swelling, weakness, popping and some difficulty breathing. See December 2011 and September 2019 VA Examination Reports. Given the record, the Board finds that an initial 10 percent rating is warranted for costochondritis for the entire period of the claim under Diagnostic Code 5321. A rating in excess of 10 percent, however, is not warranted under this code absent findings of hospitalization for a prolonged period and cardinal signs and symptoms which result in an inability to keep up with work requirements. The latest VA examination found no cardinal signs and symptoms of a muscle injury related to costochondritis, and the Veteran himself does not contend that his disability interferes with his ability to work. The Board concludes that the Veteran's costochondritis symptoms therefore do not more nearly approximate severe or moderately severe muscle injury. For the foregoing reasons, the preponderance of the evidence reflects that an initial rating in excess of 10 percent is not warranted for the Veteran's costochondritis. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.