Citation Nr: 1318796 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-15 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for hypertension. 3. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By that rating action, the RO granted a 50 percent rating for PTSD and a 10 percent rating for hypertension. Both ratings were effective from August 21, 2006. The RO also denied a rating in excess of 20 percent for the Veteran's lumbar spine degenerative disc disease. In September 2010, the Veteran testified before the undersigned Veterans Law Judge at a hearing conducted at the Board in Washington, D.C. A transcript of the hearing testimony is in the claims file. The listed claims were then remanded in April 2011 for additional development. After the Veteran's appeal was returned to the Board, the Veteran submitted additional evidence in support of his claims, along with an appropriate waiver of RO consideration. Therefore, the appeal may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). The Veteran's Virtual VA file has also been reviewed as part of his appeal. The issue of entitlement to service connection for loss of use of a creative organ secondary to medication for PTSD has been raised by the record, specifically in a May 2011 VA examination report and September 2012 statement submitted by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Veteran also raised a claim for service connection for a urinary condition secondary to a low back condition. However, as discussed below, adjudication of the Veteran's claim for an increased rating for his low back condition includes consideration of whether separate ratings are warranted for associated neurologic abnormalities. In this case, a separate rating is being granted for urinary incontinence. Therefore, referral of the Veteran's new claim is not necessary. FINDINGS OF FACT 1. Prior to January 28, 2010, PTSD was manifested by some suicidal ideation, memory impairment, sleep disturbances, and a GAF score of 60. 2. From January 28, 2010, PTSD was manifested by suicidal ideation with a plan, sleep disturbances affecting social relationships and occupational functioning, a near-continuous depression affecting independent function, and a GAF score of 53. 3. At worst, hypertension was manifested by systolic pressure of 164 and diastolic pressure of 104. 4. Degenerative disc disease of the lumbar spine was manifested by pain and other symptoms which reduced forward flexion to 30 degrees. 5. From July 21, 2009, degenerative disc disease of the lumbar spine resulted in urinary incontinence which required the wearing of absorbent materials that had to be changed 2 to 4 times per day. CONCLUSIONS OF LAW 1. Prior to January 28, 2010, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. From January 28, 2010, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7101 (2012). 4. The criteria for a 40 percent rating for degenerative disc disease of the lumbar spine have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012). 5. From July 21, 2009, the criteria for a separate 40 percent rating for urinary incontinence associated with degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.115a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claims, a letter dated in April 2007 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claims; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran's service treatment records, VA treatment records, private treatment records, lay statements, and hearing transcript have been associated with the claims file. The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In its April 2011 remand, the Board specifically directed the Veteran to undergo new VA examinations for his disabilities. The VA examinations obtained in this case, including those obtained as a result of the remand, are sufficient to adjudicate the claims. They are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's PTSD, hypertension, and lumbar spine condition. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board's remand directives have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran also testified at a Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the VLJ noted the elements that were lacking to substantiate the claims for benefits, elicited testimony to support those claims, and sought to identify any pertinent evidence not currently associated with the claims folder. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). A. PTSD The Veteran is currently assigned a 50 percent rating under Diagnostic Code 9411 for his PTSD. A 50 percent rating is assigned 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 a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9435 (2012). A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the Veteran's own occupation or name. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. The Veteran underwent a VA examination in May 2007. He stated that his wife complained that he was depressed. He had nightmares and difficulty sleeping. On some occasions, he "threw himself around the bed" at night, and hit his wife on one occasion. Sometimes, he would get up at night, get dressed, and walk around the neighborhood before returning to bed. He experienced persistent recollections of Vietnam, and felt anxiety when seeing similar events on television. He also experienced panic attacks about three times per month, marked by anxiety, shortness of breath, and palpitations. He treated his condition with antidepressants. He was not socially active, had no friends, and reported a lack of trust in people. However, he had good relationships with coworkers. He reported some suicidal ideation but denied any attempts. On examination, the Veteran insisted on keeping the room door partially open, and the examiner noted that his left leg kept "jumping." He had a normal appearance and normal hygiene. He was fully oriented and displayed no abnormal behavior. However, his affect was flat and he had limited eye contact. Memory was moderately impaired, and the Veteran could not recall computer configurations and other materials he had used for many years. He could only recall four digits forwards and backwards, and the examiner noted this to be less than expected for his educational level. His GAF score was 60. In a May 2007 statement, the Veteran's wife stated that he experienced severe night sweats, and recurring nightmares which caused him to wake up in a violent state. Private records dated August 2007 show the Veteran reported experiencing anxiety, depression, sleep disturbance, loss of pleasure, low self-esteem, guilt, and being upset over problems at work and home. On examination, his speech was normal. His mood was depressed, frustrated, and anxious. His affect was sad and showed worry. Additional records dated September 2008 show the Veteran reported constantly worrying about dying, along with complaints of headaches, back pain, and other physical disabilities. He reported a loss of interest in activities, low self-esteem, and feelings of guilt about not being "the husband and father he should be." He denied any delusions, hallucinations, violent behavior, or interpersonal relationship problems. On examination, his mood was depressed and anxious, and his affect was sad. There was no abnormal psychomotor activity. Thought processes and content were normal, and insight was intact. The Veteran displayed no obsessions, paranoid ideations, or suicidal ideation. VA treatment records dated April 2009 show the Veteran reported prior thoughts of suicide, but no current suicidal ideation. He had been having more nightmares, and his private psychiatrist prescribed increased medication. He felt better, but continued to have nightmares and "fight" in his sleep. The Veteran underwent another VA examination in January 2010. His wife was also present for part of the examination. The Veteran reported constant symptoms of depression, apathy, violent nightmares and other sleep disturbances, social isolation and withdrawal. His symptoms result in severe withdrawal from his marriage, as well as family and leisure pursuits. He treated his condition with medication and psychotherapy. He denied any psychiatric hospitalizations. On examination, the Veteran was fully oriented. His appearance and hygiene were normal. His mood and affect were anxious, and the examiner noted that they indicated a depressed mood that occurred near-continuously and affected the ability to function independently. He also demonstrated difficulty with understanding complex commands. The Veteran's responses to interview questions were minimal, but he had no specific speech abnormalities. His thought processes were slow and he had difficulty understanding directions. Memory was moderately impaired. The Veteran referenced suicide by ingesting toxic chemicals, though he denied any attempts or actual intent. His GAF score was 53. At his September 2010 Board hearing, the Veteran and his wife testified that he was able to get along with his coworkers and had good relationships with his children, but he rarely engaged in social activities such as going to the movies. He had difficulty in crowded situations, and tried to place himself near the exit when inside any establishment. In the previous 3 years, the Veteran had experienced suicidal ideation about 8 times. He had some difficulty with maintaining logical thoughts. At night, he experienced violent nightmares and thrashed about in his sleep to the point where he and his wife no longer slept in the same room. He denied any significant problems with hygiene. He treated his condition with medication, and saw a therapist every 2 or 3 months. The Veteran had another VA examination in May 2011. He again reported recurrent nightmares, during which his heart "races out of control." He reported that he once struck his wife resulting in a "black eye" during a nightmare. He had significant daytime fatigue and difficulty with concentration due to a lack of proper sleep. He was withdrawn and did not engage in any social activities. He felt he should have been killed in Vietnam instead of others. His relationship with his wife was more like being "roommates." He had regular contact with his daughter and brothers. One of his sons did not speak to him. His leisure activities included watching television, taking a nap on weekends, and watching the stars at night to keep himself calm. Recently, he had missed about 4 days of work a month due to mental health concerns. On examination, the Veteran had a subdued affect and limited eye contact. His behavior and grooming was appropriate. No hallucinations or delusions were present, and he was fully oriented. He had normal communication and thought processes. He reported writing things down on a notepad at work to help him remember certain tasks. He denied any current suicidal ideation, but reported having suicidal thoughts without a plan about 2 months ago. There was no obsessive or ritualistic behavior which interfered with his activities. He denied any panic attacks or impaired impulse control. The examiner assessed the Veteran's PTSD as chronic, continuous, and moderate. His condition had moderate effects on routine responsibilities, family role, physical health, relationship, and quality of life. Effects on activities of daily living were mild to moderate. Effects on leisure activities and employment were moderate to severe. The Veteran's GAF score was 54. Additional records dated March 2013 show the Veteran reported having recurrent nightmares and sleep disturbances. As a result, he was tired all the time and often missed work. He also had a boss who was not friendly or respectful, and this also made him not want to go to work. A staged rating is warranted for the Veteran's PTSD. Prior to January 28, 2010, a rating in excess of 50 percent is not warranted. The evidence during this period demonstrates some suicidal ideation, but does not reflect any of the other symptoms consistent with a higher 70 percent rating, such as obsessional rituals which interfere with routine activity, impaired impulse control with periods of violence, speech abnormalities, a near-continuous panic or depression affecting independent function, spatial disorientation, or an inability to establish and maintain relationships. The Veteran's periodic panic attacks, memory impairment, sleep impairment, and depressed mood are all contemplated by the assigned 50 percent rating. While the criteria listed in the rating schedule do not form an exhaustive list of potential symptoms, the Veteran's overall disability picture is also not consistent with a higher rating. He had good relationships with his children and coworkers, and was able to function reasonably well in a work environment. These findings, as well as the Veteran's GAF score of 60, do not reflect functioning consistent with the overall impairment contemplated by the higher 70 percent rating. However, as of January 28, 2010, a higher 70 percent rating is warranted. The VA examination conducted on that date specifically noted a depressed mood that occurred near-continuously and affected the ability to function independently. The Veteran also related suicidal ideation with a plan, though he denied any actual intent. His GAF score was also reduced to 53. Subsequent findings reflect symptoms with moderate to severe effects on employment and quality of life. In particular, the Veteran's nightmares and sleep disturbances also resulted in effects on his marriage, as he no longer slept in the same room as his wife. They also caused significant fatigue and caused the Veteran to miss work. These findings are consistent with a 70 percent rating. A higher 100 percent rating is not warranted as the Veteran has not demonstrated any gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an inability to perform activities of daily living, or memory loss for basic concepts such as his own name. Despite his reported difficulties at work, he has maintained his employment throughout the period on appeal, and he has maintained some relationships with family members. These findings are not consistent with the total occupational and social impairment contemplated by the 100 percent rating. B. Hypertension The Veteran's hypertension has been rated as 10 percent disabling under Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertensive vascular disease (hypertension and isolated systolic hypertension) with diastolic pressure predominantly 100 mmHg or more, or; systolic pressure predominantly 160 mmHg or more, or; minimum elevation for an individual with a history of diastolic pressure predominantly 100 mmHg or more who requires continuous medication for control. A higher 20 percent rating is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 mmHg or more, or; systolic pressure predominantly 200 mmHg or more. A 40 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 120 mmHg or more. A maximum schedular 60 percent rating is assigned for hypertensive vascular disease with diastolic pressure predominantly 130 mmHg or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The criteria outlined above are accompanied by various explanatory notes. Explanatory Note (1) indicates that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mmHg, or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mmHg, or greater with a diastolic blood pressure of less than 90 mmHg. Explanatory Note (2) advises raters to evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Explanatory Note (3) directs raters to rate hypertension separately from hypertensive heart disease and other types of heart disease. Id. The record includes a large number of blood pressure readings taken during the course of VA and private treatment throughout the period on appeal. However, there are no readings which indicated diastolic pressure of 110 mmHg or more, or systolic pressure predominantly of 200 mmHg or more. At worst, blood pressure was 162/103 in April 2010. The Veteran's VA examinations also do not demonstrate hypertension consistent with a higher 20 percent rating. During his May 2007 VA examination, blood pressure was 162/104 when lying down, 164/104 when seated, and 158/102 when standing. During a January 2010 examination, blood pressure was 160/102, 160/102, and 158/100. During a May 2011 examination, blood pressure was 136/86, 142/90, and 140/84. Therefore, the schedular criteria for an increased rating for hypertension have not been met. The preponderance of the evidence is against the claim and the appeal will be denied. C. Lumbar Spine The Veteran is currently assigned a 20 percent rating for degenerative disc disease of the lumbar spine under Diagnostic Code 5242. Lumbar spine disabilities are evaluated 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012). Under the General Rating Formula, the regulations provide, in pertinent part, for a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 if the medical evidence shows 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. These ratings are warranted if the above-mentioned manifestations are present, 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. 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2012). The rating criteria under the General Formula for Diseases and Injuries of the Spine also provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Neurologic abnormalities are to be rated separated. The Veteran is already assigned separate ratings for sensory deficits in the left and right lower extremities, and those ratings are not presently on appeal. However, there is also evidence of a neurologic urinary condition. Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding. Where there is continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day, a 60 percent evaluation is warranted. A 40 percent rating is warranted where the disorder requires the wearing of absorbent materials which must be changed two to four times a day. A 20 percent evaluation is warranted where the disorder requires the wearing of absorbent materials that must be changed less than two times per day. 38 C.F.R. § 4.115a. Under Diagnostic Code 5243, intervertebral disc syndrome may be rated under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a rating of 30 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a rating of 60 percent. Note (1): For purposes of evaluation under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The ruling in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment). Private treatment records dated October 2006 reflect normal bowel and bladder function. The Veteran underwent a VA examination in May 2007. He reported having stiffness, pain and weakness which left him unable to lift and carry objects. He had difficulty with bending, repetitive motion, and walking for long periods. He reported incapacitation one time per month and once in the last year. On examination, the Veteran's posture was normal. Forward flexion was 45 degrees and extension was 20 degrees. Lateral flexion and rotation were both 20 degrees bilaterally. There was no pain with motion with initial testing. Repetitive motion elicited pain, fatigue, weakness, and lack of endurance. However, additional range of motion measurements were not recorded following repetitive testing. The Veteran denied any bowel or bladder impairment. VA records dated July 2007 show the Veteran complained of exacerbated back pain after stepping off of a curb. On examination, he could not flex forward, and pain was present with changes in position. The Veteran denied any bowel or bladder incontinence. In a September 2008 statement, the Veteran's coworker noted that the Veteran wore a back brace, and that he had taken more sick and vacation days than normal over the past six months. Private records also dated September 2008 show the onset of a loss of sphincter control. VA records from April 2009 show the Veteran continued to deny any bowel or bladder symptoms. However, in July 2009, the Veteran complained of urinary incontinence severe enough that he had been wearing Depends undergarments. He was diagnosed with stress incontinence. In September 2009, the Veteran complained of increased urination urgency and frequency. He was diagnosed with benign prostatic hypertrophy versus neurogenic bladder. In October 2009, he reported urgency during the day, with dribbling before and after voiding. He also experienced rare loss of bladder control. A VA examination was conducted in January 2010. The Veteran reported being able to walk about 50 yards, and requiring 15 minutes to do so. He complained of stiffness, fatigue, spasms, and decreased motion. He denied any bowel or bladder problems. He denied any incapacitation in the past 12 months. On examination, the Veteran had forward flexion of 40 degrees, with the onset of pain at 30 degrees. Extension was 10 degrees with pain throughout the range of motion. Lateral flexion and rotation were both 20 degrees bilaterally, with the onset of pain at 10 degrees. Overall range of motion was unchanged following repetitive testing. Inspection of the spine was normal. At his September 2010 Board hearing, the Veteran and his wife testified that he experienced constant back pain rated as 7/10 to 8/10 in severity. He was not able to lift heavy objects. He treated his condition with Flexeril and another medication. He recalled one instance when he was told by his doctor to stay home from work for a couple days. He also stated that he was stretched beyond his normal capacity during the range of motion testing at his last VA examination. He reported only one instance of bowel incontinence in the last six months, but experienced bladder incontinence severe enough that he wore absorbent pads. A September 2010 prescription slip noted that the Veteran had to miss work for three days due to unspecified medical reasons. VA records dated April 2011 noted additional complaints of urinary symptoms. The treating physician stated that the Veteran probably had a neurogenic bladder. The Veteran underwent a VA examination in May 2011. He reported flare-ups of back pain occurring up to 3 times per day, lasting for 2 to 6 hours. Back pain was otherwise constant, and rated as 5/10 in severity. He denied any incapacitating episodes. He also experienced urinary incontinence, and he wore absorbent materials that had to be changed 2 to 4 times per day. He denied any bowel incontinence. On examination, the Veteran had a normal posture, and no abnormal spinal curvatures were present. Ankylosis was not present. Forward flexion of the lumbar spine was 45 degrees, and extension was 5 degrees. Left lateral flexion was 20 degrees and right lateral flexion was 25 degrees. Left rotation was 15 degrees and right rotation was 30 degrees. There was objective evidence of pain with motion, but no additional pain or limitation following repetitive testing. The Veteran reported missing two days of work in the past 12 months due to his back condition. A March 2013 letter from the Veteran's private physician stated that the Veteran had been having difficulty maintaining focus at work due to his lower back condition. He had taken leave to deal with the issue, and also departed work earlier than normal to help him cope. A 40 percent rating is warranted for the Veteran's lumbar spine condition. VA examinations from May 2007 and May 2011 recorded forward flexion of greater than 30 degrees. However, the May 2007 examination noted additional pain following repetitive testing, but did not provide additional range of motion measurements which account for that pain. Similarly, the May 2011 examination noted objective evidence of pain with motion, but did not note at what point pain had its onset within that range of motion. In contrast, the January 2010 VA examination noted the onset of pain at 30 degrees of forward flexion, which approximates the criteria for a 40 percent rating. Additional VA records from July 2007 noted an exacerbation of back pain which prevented the Veteran from flexing forward at all. These findings, when viewed collectively with the Veteran's own testimony regarding his symptoms and the March 2013 letter regarding the occupational impact of his condition, result in an overall level of impairment consistent with a higher 40 percent rating. A higher 50 percent rating is not appropriate because the Veteran was not diagnosed with unfavorable ankylosis at any point during the period on appeal, and the objective findings and subjective reports of symptoms do not correspond to an overall level of impairment contemplated by this higher rating. In addition, a separate 40 percent rating is warranted as of July 21, 2009, for urinary incontinence as a neurologic abnormality associated with the Veteran's lumbar spine condition. Records from that date show the first complaints of any bladder impairment during the period on appeal. Although the record includes diagnoses of possible stress incontinence and benign prostate hypertrophy, records from April 2011 indicated that the Veteran probably had a neurogenic bladder. The May 2011 VA examination noted that the Veteran wore absorbent materials which had to be changed 2 to 4 times per day, which is consistent with the 40 percent rating under the schedular criteria for voiding dysfunction. The Veteran reported wearing absorbent materials when he first complained of urinary symptoms in July 2009. Notably, the evidence reflects instances of reduced or absent urinary symptoms. In October 2009, the Veteran reported "rare" loss of bladder control. During a January 2010 examination, he denied any bladder complaints. However, in light of the other positive findings of urinary incontinence, as well as the Veteran's hearing testimony describing his symptoms, a 40 percent rating is warranted as of July 21, 2009. Finally, a rating based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted because the maximum 60 percent rating available is less than the Veteran's assigned ratings for the orthopedic and neurologic impairment associated with his lumbar spine condition. D. Extraschedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to any extraschedular ratings. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD, hypertension, and lumbar spine condition with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. Symptoms of the Veteran's PTSD (including depression, memory loss, and suicidal ideation) and lumbar spine (pain, stiffness, neurologic impairment) are all contemplated by the rating schedule. There is no indication that any of the disabilities on appeal, including hypertension, result in any symptoms that fall so far outside the rating schedule as to render it inadequate. In addition, although the Veteran reported missing work and reducing his hours because of his conditions, there is no persuasive evidence in the record to indicate that these service-connected disabilities on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular ratings. In particular, the assigned 70 percent disability rating for PTSD and the 40 percent ratings for his lumbar spine and urinary incontinence contemplate a significant impact on the Veteran's employment. Therefore, extraschedular ratings are not warranted. ORDER A rating in excess of 50 percent for PTSD is denied prior to January 28, 2010. A 70 percent rating for PTSD is granted from January 28, 2010, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 10 percent for hypertension is denied. A 40 percent rating for degenerative disc disease of the lumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. A separate 40 percent rating for urinary incontinence associated with degenerative disc disease of the lumbar spine is granted from July 21, 2009, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs