Citation Nr: 1318895	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  09-24 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a low back disability.  

2.  Entitlement to service connection for a low back disability.

3.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD) rated as 30 percent disabling prior to February 12, 2012 and 50 percent disabling subsequent to February 12, 2012. 

4.  Entitlement to total disability based upon individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Russell P. Veldenz,  Counsel


INTRODUCTION


The Veteran served on active duty from August 1967 to April 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2007 of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In February 2012, the Veteran appeared at a hearing before a Decision Review Officer.  A transcript of the hearing is in the record.

During the pendency of the appeal, in May 2012 the RO increased the rating for PTSD from 30 percent to 50 percent, effective February 2012, the date of a VA examination.  The Veteran continued his appeal for a higher rating.  AB v. Brown, 6 Vet. App. 35, 38 (1993). 

In an unappealed rating decision in September 1969, the RO denied the claim of service connection for a low back disability.  By operation of law, the unappealed rating decision became final (hereinafter also referred to as finality).  38 U.S.C.A. § 7105.  On the current application to reopen, the RO reopened the claim and then denied the claim on the merits.  Where service connection for a disability has been denied in a final rating decision, a subsequent claim of service connection for the same disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.

The Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).   For this reason, the Board has listed the claim of new and material evidence to reopen the low back disability to reflect that finality had attached to the previous rating decision.

In a written submission in December 2012, the Veteran appears to be seeking service connection for diabetes mellitus and a skin disability, both to include as a result of Agent Orange exposure. 

The issues of service connection for diabetes mellitus and service connection for a skin disability, both to include as a result of Agent Orange exposure have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issue of entitlement to total disability based upon individual unemployability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  By a rating decision issued in September 1969, the RO denied a claim of service connection for a low back disability and the Veteran did not appeal, nor was any new and material evidence submitted within the appeal period.

2.  Until February 2007, the date the Veteran filed his current claim to reopen a claim of service connection for a low back disability based upon new and material evidence, there was no pending claim or informal claim received at VA from the Veteran.

3.  Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability has been received since the September 1969 rating decision.

4.  A low back disability, degenerative disease, was not affirmatively shown to have been present in service; a low back disability, degenerative disease, was not manifest to a compensable degree within one year of separation from service; a low back disability, degenerative disease, was first documented after service beyond the one-year presumptive period for a low back disability as a chronic disease; a low back disability, degenerative disease, is unrelated to an injury or disease or event in service.

5.  PTSD has been manifested by a disability picture that equates to occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas, such as work and family relations, judgment, thinking, or mood has not been demonstrated.


CONCLUSIONS OF LAW

1.  The September 1969 rating decision denying service connection for a low back disability became final.  38 U.S.C.A. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1969); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 

2.  New and material evidence has been received since the September 1969 denial of the claim of entitlement to service connection for a low back disability.  38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156(a) (2011).

3.  A low back disability, degenerative disease, was not incurred in or aggravated by service and service connection for a low back disability, degenerative disease, may not be presumed based on the one year presumption for a chronic disease.  38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

4.  The criteria for an evaluation of 50 percent before prior to February 12, 2012 have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012).
5.  During the appeal period, the criteria for an evaluation higher than 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims.  

Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claims.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).  

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre- adjudication VCAA notice by letter, dated in March 2008.  The notice included the type of evidence needed to substantiate the claims for increase, namely, evidence that the symptoms had increased.  The notice also included the type of evidence needed to substantiate the underlying claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service.  

The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment).  Further VCAA notice is not required.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  The RO has obtained service treatment records, VA records, records from private medical caregivers, records from the Social Security Administration, and provided the Veteran a VA examination in June 2006, July 2011, and February 2012.  

The reports of the VA examination included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability.  As to the back disability, the VA examiner also expressed an opinion as to its relationship to service and explained how he reached that conclusion.  Therefore, the Board concludes that the VA examinations are adequate.  38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 

Reopening the Claim of Service Connection for a Low Back Disability

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

The record establishes that the claim of service connection for a low back disability was originally denied in September 1969.  The rating decision acknowledged that the Veteran was treated in service for back pain, but the VA examination in August 1969 did not demonstrate any current back disability.  The Veteran was notified of the rating decision and his appellate rights in September 1969, but the Veteran did not perfect an appeal.  As a result, the September 1969 rating decision became final.  38 U.S.C.A. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1969); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." 

Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312, 314 (1990).  Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision."  Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998).  If it is determined that new and material evidence has been received, the claim must be reopened and VA may then proceed to the merits of the claim on the basis of all the evidence of record.  The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it.  Shade v Shinseki, 24 Vet. App. 110, 118 (2010).

As noted, service connection for a low back disability was denied in September 1969 because no current disability was shown.  The Veteran submitted a claim to reopen in February 2007 and the RO, in the statement of the case, reopened the claim and then denied it on the merits of all of the evidence.  Regardless of the RO's determination, the Board is not bound by that determination as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

Since the prior final rating decision in September 1969, VA has received additional evidence including VA treatment records, private treatment records, records from the Social Security Administration, and lay statements by the Veteran.  The medical evidence includes a physical therapy note dated in November 2006 indicating a recent X-ray demonstrated degeneration in the back.  In a VA examination in December 2010, the examiner diagnosed that the Veteran had mild degenerative joint disease of the lumbar spine.  In the Agent Orange examination in November 2010, the Veteran was diagnosed with chronic low back pain due to degenerative joint disease of the lumbar spine.  The Veteran was diagnosed with mild degenerative disc disease in a VA examination in February 2012. 

This evidence constitutes new evidence as it was not previously submitted to agency decision makers.  It is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened.  It shows that the Veteran has a definite diagnosis of degenerative disc disease of the lumbar spine.

As the Board must presume the credibility of the evidence for the limited purpose of reopening (see Justus), the evidence raises a reasonable possibility of substantiating the claim.  The evidence shows a current disability and a possible link between the Veteran's service and his back disability.  The lack of a current disability was the reason for the original denial of service connection.  Therefore, the Board finds that new and material evidence has been received to reopen the previously denied claim of service connection for a low back disability.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

Service Connection for a Low Back Disability

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110, 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

Service connection may be established by either continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis of the medical condition after service under 38 C.F.R. § 3.303(d).  The Federal Circuit recently held that continuity of symptomatology under 3.303(b) applies only to chronic diseases listed in § 3.309.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013).  Degenerative disc disease of the lumbar spine is a listed disease as arthritis.

The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis (degenerative disc disease), if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

The Veteran's entrance examination in August 1967 did not contain any history or complaints of back pain and the examination was normal.

In September 1967, the Veteran complained of intermittent back pain.  There was mild tenderness and a spasm on the left side.  The diagnosis was a lumbosacral strain.  

In July 1968, he again complained of back pain in the T10-L1 that eventually localized to the L1-L2 area.  A history indicated the pain radiate into the legs.  

In August 1968, an X-ray demonstrated an abnormally narrow L4-L5.  Later that month, the Veteran complained that his low back pain hurt more than usual after he lifting cans.  A consult that month noted that the Veteran had chronic low back pain and had used muscle relaxants without success.  The history indicated the Veteran had the problem for two years after slipping on ice while carrying a heavy weight.  He described radiating pain along the iliac crest radiating down the lateral aspect of the left thigh to about the level of the left knee.  Both the physical examination and the X-ray were within normal limits.

The Veteran complained of pain again in February and March 1969.  

At the separation examination in April 1969, the Veteran disclosed a history of recurrent back pain but the physical examination was normal and the examiner did not offer any comments other than "otherwise EPTS," which may stand for "existed prior to service."

In a VA examination in August 1969, the Veteran asserted he had a back injury prior to service, but he also injured the back when he fell off a truck.  The examination did not reveal any abnormalities and the X-rays of the lumbar spine were normal.  The examiner concluded that there was no current disability of the back.

The Board notes that the next treatment record of the back are VAMC outpatient notes dated in September 2005 indicating a complaint of low back pain since March 2003.   

In March 2006, he stated the low back pain radiated down the left leg.  Truck driving, his civilian occupation, made the pain worse.  

In April 2006, the Veteran sought treatment from a private physician for a left shoulder injury that occurred at work when he fell off a truck.  He also reported that he thought he had injured his back during basic training, but hurt his back as well in the same incident where he injured his shoulder.  The Veteran stated that in service, he was issued a backboard.  X-rays of the lumbar spine were unremarkable.  The diagnosis was lumbar strain.

In May 2006, a MRI revealed a tiny central disc protrusion with an annular tear at L4-L5 but it did not cause neural impingement.  There was no significant stenosis.

In October 2006, the Veteran reported low back pain made walking difficult.  He was issued a back brace.

A physical therapy note dated in November 2006 reported that a recent X-ray demonstrated degeneration in the back.  

In April 2008, the Veteran's primary provider at VAMC noted the back pain appeared to be mostly muscular but acknowledged that he has mild degenerative joint disease.  

In a VA examination in December 2010 for a claim of total disability base upon individual unemployability, the examiner diagnosed that the Veteran had mild degenerative joint disease of the lumbar spine.  The Veteran reported a back injury occurred in 1967, during basic training.  He currently had symptoms of pain and weakness in the low back.  He described constant pain with radiculopathy to the left lower extremity.  The cold season and prolonged sitting or walking aggravated the pain.  The Veteran's forward flexion was to 55 degrees, extension to 10 degrees, left lateral flexion to 14 degrees, right lateral flexion to 17 degrees, left rotational flexion to 5 degrees, and right rotational flexion to 12 degrees.  There were no neurological findings.  

In the Agent Orange examination in November 2010, the Veteran was diagnosed with chronic low back pain due to degenerative joint disease of the lumbar spine.  It was noted the Veteran worked for 35 years driving 18 wheeler trucks with an estimated 3 to 4 million miles of driving.  He currently tries to walk 2-3 miles every day.  

The Veteran testified he injured his lower back during basic training and also had treatment while serving in Vietnam as a rifleman in the infantry.  After the injury in basic training, he received medication and slept on a bed board.  He was told it was a pulled muscle.  He then sought treatment in 1970 after service.  He currently has what he has been told is a slipped disc in his lower back on the left side.  He cannot do his job and declared disabled because he is required to be 100 percent to perform his job duties.  He did injure himself on the job hurting his back, twisting a knee and injuring his rotator cuff of his left shoulder.  He is currently receiving Social Security Administration benefits.  

In a VA examination in February 2012, the Veteran stated he slipped and fell during basic training and guessed that he twisted his back.  He reported to sick call and was told that he had a sprain.  The Veteran stated he re-injured the back after service with another slip and fall.  He was told he had a muscle spasm.  In 2006, he injured both his back and right shoulder with the right shoulder requiring surgical repair.  The Veteran reported he now has pain in his back with prolonged sitting and standing and walking.  He also stated he could not lift, bend, or sit in one place for over an hour.  The pain radiates to the left leg.  There were no flare-ups.  

The physical examination demonstrated tenderness to palpitation in the thoracolumbar spine.  The examiner did not find any signs of radiculopathy or intervertebral disc disease.  The examiner did not record the Veteran's range of motion because the Veteran stated he cannot do any motion in his back or it will lock up and he could not change directions.  The Veteran asserted he is in constant pain and will fall if he tried to move.  X-rays demonstrated mild degenerative disc disease at the L4-L5 level and mild multilevel degenerative disc disease.  

The Veteran was diagnosed with mild degenerative disc disease.  The examiner concluded it was less likely than not that the current back disability resulted from service.  Degenerative disc disease may result from injury, aging, or overuse.  The Veteran also sustained two post-service accidents and worked as a truck driver for over 15 years.  The incident in the military resulted in muscle spasms with X-rays that showed a normal back.  The examiner stated muscle spasms do not cause degenerative disc disease.  Further, as it is a progressive disease and the Veteran currently shows only mild degenerative disc disease, it is less likely than not that the pain the Veteran experienced in 1967 is related to the current degenerative disc disease.  The degenerative disc disease is most likely related to the more recent injuries in his civilian occupation.  

Initially, the Board recognizes that the Veteran has provided lay evidence of his symptoms, their onset, and the continuing presence of symptoms thereafter.  The preliminary issue now addressed by the Board is the opinions expressed by the Veteran as to what disabilities he has and their relationship to service.  

Competency of evidence is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

As a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses.  38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses).  Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible).  The Board thus finds that the Veteran is competent to describe his symptoms in service, their onset, and the continuing presence and nature of symptoms.  

While the Veteran is competent to describe symptoms both during service, and since service, he is not a doctor competent to diagnosis his condition in service or in the years following separation.  When the medical evidence weighs against the likelihood of a link between an inservice condition and a current condition, VA will not find that there is a relationship between a current diagnosis (for example, degenerative joint disease) and service, based upon the continuity of symptomatology as stated by the Veteran.  Medical evidence is required to demonstrate such a diagnosis and a relationship to service unless such the diagnosis and the relationship to service is one to which a lay person's observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (medical evidence is required to demonstrate continuity of symptomatology and any present disability unless such a relationship is one to which a lay person's observation is competent).

Although the Veteran is competent to describe his symptoms of the lower back, unless degenerative disease is a condition under case law that has been found to be capable of lay observation, the determination as to the presence or diagnosis of such a disability therefore is medical in nature and competent medical evidence is required to substantiate the claim.  Savage, 10 Vet. App. at 498 (on the question of whether there is a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  Degenerative disease is not a condition under case law that has been found to be capable of lay observation.  See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition).

Furthermore, the diagnosis of degenerative disease cannot be made by the Veteran as a lay person based on mere personal observation.  That is, perceived symptoms of the lower back may be experienced by any lay person, but the actual medical diagnosis of the cause for such symptoms is not competent unless provided by a doctor trained in the medical field.  As demonstrated by this case, the diagnosis depends upon interpretation of history and symptoms, and clinical and diagnostic tests, such as X-rays and laboratory tests, which requires medical knowledge.  No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis.  Therefore, the Veteran's assertion or opinion that he has a low back disability, or more generally, that the current degenerative changes in the back is due to service is essentially no more than the opinion of a layman.  It is not competent medical evidence of a diagnosis by a medical professional.  The Veteran's discussion of his symptoms over the years certainly is important; however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional.  Therefore, to this extent only, the Veteran's opinions are excluded.  

To sum up the foregoing, the Board will consider the Veteran's testimony as it relates to the onset and continued presence of symptoms of the lower back such as pain.  Such lay evidence is relevant and competent.  To the extent that the Veteran is offering his own opinion as to what disability is causing the symptoms, or the relationship of the disability to service, the Board has disregarded the Veteran's opinions in its analysis.

To the extent that the Veteran asserts continuity of symptoms since service, the Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence).  

In this instance, the Veteran sought treatment in service for muscle spasms.  At the separation examination, however, the physical examination of the back was normal.  The next time he sought treatment was in 2005 with complaints of pain dating to 2003.  

In the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (It was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence, which weighs against the claim).  The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Here, the lapse of time from separation in 1969 to the first notation of complaints or treatment of the back weighs against the Veteran's assertions of continuous symptoms such as pain.  

The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible).  Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are not credible and less probative than the negative evidence, which interrupts continuity. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder).   

Thus, the Board recognizes that documentation of an injury is not required, Buchanan, supra, but rather, the Board has weighed the negative evidence of the treating medical records and subsequent treating records against the Veteran's statements that injury to the back in service has caused him problems since separation to the present.  The Veteran's post-service medical records are negative for complaints, symptoms, treatment, findings, or diagnoses for more than two decades following separation.  

In addition, the Board notes that at least once, possibly more, the Veteran injured his back at work at times more recent to the diagnosis of degenerative changes in the back.  The intercurrent injury in interrupts continuity of symptomatology and is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). For this reason, the preponderance of the evidence is against the claim of service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b).  Furthermore, as noted, the VA examiner determined the subsequent injury did not aggravate a back disability that had its onset in service.  

Thus, for the foregoing reasons, the Board has determined that while the Veteran is competent to provide lay evidence concerning the onset of his back disability, the Veteran is not as credible as the documented medical evidence that the onset of symptomatology occurred after service.  The Board has therefore assigned little weight to the Veteran's assertions of continuity of symptoms since service.

As for the Veteran describing a contemporaneous medical diagnosis and symptoms described by the Veteran that later support a diagnosis by a medical professional, the Veteran has not stated that a physician told him that his current disability is caused by or related to service. 

As the Veteran's lay evidence is not credible evidence on the questions of either a diagnosis or causation, applying 38 C.F.R. § 3.303(b) and (d), the Board looks to the medical evidence.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.  

The only competent medical evidence is the opinion of the VA examiner in February 2012.  The examiner is qualified by education, training, or experience to diagnosis a medical condition and to offer an opinion on causation.  With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008).

The Board finds the unfavorable medical opinion of the February 2012 VA examiner is well reasoned, detailed, provide a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms.  The examiner noted, for instance, what treatment was provided in service and the lack of findings at separation regarding the back.  The examiner also took into account all of the medical evidence of record.  He set forth an accurate historical history with medical details taken from the Veteran's claims file, which renders it especially probative.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).  Being based on a complete review of the record, these opinions also implicitly take into account the Veteran's own assertions, but the examiner has determined the Veteran's assertions do not establish a relationship to service.  The Board therefore finds that the opinion of the February 2012 VA examiner as persuasive evidence against the claim for service connection for a low back disability, to include degenerative disc disease.  As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in their opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current disability of the low back or the relationship to service, which opposes, rather than supports, the claim. 

Accordingly, the weight of the medical evidence is against an association or link between any current disabilities of the low back and service, including the documented treatment for muscle spasms.  The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).



Rating Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4. 

The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

Posttraumatic stress disorder (PTSD) is rated under Diagnostic Code 9411 under the General Rating Formula for Mental Disorders. 

The criteria for a 50 percent rating are 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.

The criteria for a 70 percent are occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. 

The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The evidence considered in determining the level of impairment from PTSD under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411 and the General Rating Formula. 

Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).) 

The Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). 
GAF scores ranging from 41 to 50 reflect serious symptoms (e.g. suicidal ideation or severe obsessional rituals), or any other serious impairment in social or occupational functioning. GAF score from 51 to 60 represents 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).  A score of 61-70 illustrates "[s]ome 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, has some meaningful interpersonal relationships."  

While the GAF score is relevant evidence, the GAF score alone is neither statutorily nor regulatory controlling in rating a psychiatric disorder, rather the rating is determined by the application of the Rating Schedule, 38 C.F.R. Part 4, as  explained above. 

Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met.  It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative.

In a June 2006 VA examination, the Veteran reported taking an anti-depressant medication, and was undergoing individual psychotherapy.  He described the effectiveness as fair.  The Veteran had been married twice and both marriages ended in divorce.  He had recurrent mood irritability and dysphoria, insomnia, and nightmares.  The Veteran believes the symptoms interfered with his second marriage.  He knows his neighbors and had friends.  He attends church regularly but avoids social interactions.  He has experienced increased difficulty with symptoms since he was off work.  Driving alone as a truck driver helped for symptom relief.  He enjoys fishing but stopped hunting since service due to the symptoms.  He watches television and reads about sports.  The examiner noted his leisure activities and quality of life issues have been negatively affected by the lack of working after the injury.

The Veteran is chronically depressed and anxious.  He tends to be irritable and easily angered.  The symptoms have been exacerbated since his work injury occurring in April 2006.  There is no history of suicide attempts or violence or issues related to alcohol or substance abuse.  He estimated he sleeps 4-5 hours per night with nightly dreams and nightmares about Vietnam.  An ex-wife noted he talked and hollered in his sleep.  At times, his nightmares awaken him.  He has a reluctance to go to sleep due to the dreaming and restlessness.  

In the examination, his psychomotor and speech were unremarkable.  He was cooperative but with a constricted affect and an anxious, depressed mood.  He attention was intact and he was oriented to time, place and person.  His thought process and content were unremarkable and he understood the outcome of behavior and that he had a problem.  His memory was normal.  There were no delusions, hallucinations, inappropriate behavior, panic attacks, or homicidal thoughts.  He had an occasional thought about suicide but without plan or intent.  His memory was normal and he had good impulse control.  

As to PTSD symptoms, the Veteran reported recurrent distressing dreams and thoughts of his in-service events, and intense psychological distress at exposure to internal or external cues that reminded him of the events.  He avoided thoughts, feelings, conversations, activities, places, or people that arouse recollections.  There were feelings of detachment or estrangement from others and he had a restricted range of affect, e.g., he was unable to have loving feelings.  He had difficulty falling asleep, and experienced irritability or outbursts of anger and hypervigilance.  The symptoms were described as chronic and that the Veteran relied upon work alone for symptom relief.  The symptoms had worsened since he was no longer working.  No mental health issues have interfered with his working.  The diagnosis was PTSD and a GAF of 57 was assigned.  

The PTSD in the examiner's opinion affected family relations and mood.  It did not affect his judgment or thinking but the examiner also noted he over-worked for symptom relief.  This resulted in occupational and social impairment with reduced reliability and productivity.  

In September 2006, the Veteran received a mental health evaluation as part of his claim for benefits from the Social Security Administration.  He had worked as a truck driver for 35 years until incurring a work injury in April 2006, and he was terminated.  He reported being diagnosed with PTSD approximately two years earlier, but had the symptoms for a long time.  He enjoys walking, fishing, hunting, and watching various sports on the television.  He averages 3-6 hours a sleep per night but this did not concern him.  

In the mental health examination, he was alert and oriented to person, place, situation, and day.  His attention and concentration appeared to be within normal limits as was his judgment and insight.  Memory also appeared to be within normal limits.  The Veteran had normal speech productivity and flow.  Thought productivity and structure was normal and in a goal-directed manner.  There were no suicidal or homicidal ideations, although he had suicidal thoughts sometimes.  He did not have any hallucinations.  He expressed some depression because he was at home all day.  His appetite comes and goes, but his energy level, although varied, was pretty good.  He did not have excessive anxiety, phobias, or panic attacks, but had bad dreams about service in Vietnam.  He does not like loud noises.  

The diagnosis was dysthymia and by history PTSD.  The evaluator believed the Veteran was capable of managing his own funds and was in no acute distress, but did appear to be dysthimic.  He became depressed when he stayed at home all day.  From a psychological viewpoint, however, the evaluator did not think there was any reason the Veteran could work at a job.  The Veteran did not exhibit or report PTSD symptomatology that would represent an impediment to employment.  No GAF score was recorded.

In an April 2007 VA examination, it was noted the Veteran participated weekly in group therapy.  He stated that when he drove a truck and was also married, he use to be on the road all of the time, but when he was home, he got stressed out and easily aggravated.  The Veteran stated he had good relationships with his children and grandchildren and they keep him going.  He lives by himself and does not socialize, although he had a few friends he socialized with.  He watches television.  He does not use alcohol or other substances.  

He reported he does not get much sleep and has a lot of bad dreams.  He sits until 4:00 a. m.  Not all are about the war but they do involve either him trying to hurt someone or vice-versa.  As to his PTSD symptoms, he had recurrent and distressing dreams of his service stressors.  He tries to avoid thoughts, feelings, conversations, activities, places, or people that arouse recollections.  He had markedly diminished interest or participation in activities and feelings of detachment or estrangement from others.  The Veteran also reported irritability or outbursts of anger, and an exaggerated startle response. The Veteran reported he was unemployed but he got hurt on his job and even though he attributed his current unemployability to a job injury, he had been experiencing a high degree of stress and was very irritable when he worked.  At this point, he could not work around others.

The Veteran's psychomotor activity and speech were unremarkable.  He was cooperative, friendly, relaxed, and attentive.  He had a full affect and was in a good mood.  His attention was intact and he was oriented to person, time, and place.  His thought process and content was unremarkable.  The examiner determined the Veteran did not have delusions, hallucinations, obsessive/ritualistic behavior, inappropriate behavior, panic attacks, homicidal or suicidal thoughts, or episodes of violence.  The Veteran understood the outcome of his behavior and that he has a problem.  Memory was normal.

The diagnosis was chronic PTSD and the GAF score was 57.  In the examiner's opinion, the Veteran had reduced reliability and productivity, specifically noting poor sleep with nightmares, irritability, poor social relationships, an exaggerated startle response to loud noises, and his failed marriages.  

In June 2008, the Social Security Administration found the Veteran disabled due to dysthymia, left knee arthralgias, left leg varicose veins, hypertension, gastroesophageal reflux disease, lumbar spondylosis, status post left rotator cuff open repair, a disc protrusion with annular tear at L4-L5, and left sciatic neuralgia.  

In November 2010, the Veteran underwent a VA mental health examination for a claim for total disability based upon individual unemployability.  The Veteran was taking medication and classes regarding PTSD but there was no group or individual therapy.  He has been divorced for about 6 years.  His 17 year old daughter is living with him but their relationship was described by the Veteran as not too good.  He had few friends or social relationships.  He has also lost interest in activities he previously enjoyed.  The Veteran spent most of his time alone and watched television or goes fishing.  There have not been any suicidal attempts or history of violence.  He does not use alcohol or other substances.  

As to his PTSD, the Veteran reported recurrent distressing dreams of his in-service events, and intense psychological distress at exposure to internal or external cues that reminded him of the events.  He avoided thoughts, feelings, conversations, activities, places, or people that arouse recollections.  There were feelings of detachment or estrangement from others and he had a restricted range of affect, e.g., he was unable to have loving feelings.  He had difficulty falling asleep, and he experienced irritability or outbursts of anger as well as an exaggerated startle response.  The symptoms were described as daily but moderate. This resulted in a distant personality and he was easily angered.  

In the examination, his psychomotor and speech were unremarkable.  He was cooperative but with a blunted affect and depressed mood.  His memory was normal.  The Veteran was capable of managing his funds.  It was noted he had retired as a truck driver after hurting his back.  The diagnosis was moderately severe PTSD and a GAF score of 53.  The PTSD resulted in reduced reliability and productivity.  

In July 2011, the Veteran underwent a VA mental health examination.  He had recurrent and distressing recollections and dreams of his service stressors.  He tries to avoid thoughts, feelings, conversations, activities, places, or people that arouse recollections.  He also had feelings of detachment or estrangement from others.  He reported an exaggerated startle response.  He did not report a problem with anger/irritability or difficulty concentrating.  He had a depressed mood and reported chronic sleep impairment.  The examiner noted the Veteran had some medical management appointments at VA but believed with more frequent treatment, including individual and group therapy, there was a good prognosis for improvement for his PTSD disability.  

The diagnosis was PTSD and he was assigned a GAF score of 58.  In the examiner's opinion, the PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactory with normal routine behavior, self care, and conversation.  

The Veteran testified in February 2012 that he takes medication to alleviate his PTSD symptoms.  He still cannot sleep and had bad dreams and nightmares.  The medication slows him down and his reflexes are not as good.  The Veteran feels as if he is in a daze due to his PTSD medication and he gets in a mood where he does not want to listen to anybody.  He has anger outbursts and keeps to himself at home.  He also gets angry when driving and does not drive very much.  This occurred even when he was driving an 18 wheeler and described one incident where he developed road rage.  He has been married three times and said his first wife was afraid of him because he would wake up screaming and they argued all the time.  His children live some distance away from him, including one daughter who tried to live with him.  The Veteran cannot be in large crowds because he develops panic attacks.  He has given up activities he previously enjoyed such as fishing and hunting.  

In a VA mental health examination in February 2012, the Veteran was taking two medications to help alleviate his symptoms.  He does not receive any individual or group therapy, but the examiner beloved he would benefit from therapy.  Since the last VA examination, he has remained divorced and retired from work.  The Veteran stated he was not an alcoholic but did drink sometimes to deal with stress and anxiety.  He still had recurrent and distressing recollections and dreams of his service stressors.  He tries to avoid thoughts, feelings, conversations, activities, places, or people that arouse recollections.  He had markedly diminished interest or participation in activities.  The Veteran also reported difficulty in falling or staying asleep, difficulty in concentrating, hypervigilance, and an exaggerated startle response.  He did not report irritability or anger.  The Veteran had depressed mood, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships.  

The diagnosis was PTSD with a GAF score of 58.  In the examiner's opinion, the PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactory with normal routine behavior, self care, and conversation.  

The Veteran's PTSD has been rated at 30 percent since he filed his claim for an increased rating.  After a review of the record, while there has been some fluctuation in the symptoms of PTSD, a material change in the overall severity of the disorder has not been demonstrated.   The disability picture has remained relatively constant with the effect of posttraumatic stress disorder more nearly approximating the criteria for a 50 percent rating than any other rating at all relevant times.

As for occupational impairment, there is evidence that symptoms of PTSD were a factor in the Veteran's occupational functioning, that is, his anger has caused him to experience road rage and there was at least one incident where his superior ordered him off the road because of road rage.  The Veteran also has a history of irritability and anger directed towards family members.  Notably, he has had three failed marriages and his relationship with his children has been, at best, distant.  One daughter tried unsuccessfully living with him.  

His other PTSD symptoms have manifested in the Veteran socially isolating himself, with limited contact with others.  He even used his job as a truck driver to be alone and alleviate his symptoms.  Besides family members, the evidence suggests that he has not been able to establish relationships with others.  The Veteran avoids anything that reminds him of his service in Vietnam.  He has problems sleeping. The Veteran perceives a problem with concentration and memory, although that does not appear to be a true problem based upon the VA examinations and treatment notes by his primary mental health providers.  He enjoyed hunting and fishing in the past, but no longer participates in these activities.  On the other hand, he appears to be able to enjoy certain activities where he can be alone such as watching and reading about sports.  

Reconciling the various reports into a consistent disability picture, the Board finds the Veteran's PTSD symptoms are at a level more serious than occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  His symptoms are constant, not occasional, and affect him at all times, not just during periods of stress.  The Veteran has had GAF scores between 50 and 55, which reflect moderate symptoms or impairment in social or occupational functioning, such as few friends, or conflicts with co-workers. Thus, the symptoms of PTSD affect the Veteran occupationally and socially, resulting in reduced reliability and productivity due to his symptoms, and the Board finds a 50 percent rating is warranted for all relevant times in the appeal period.  As noted, the Veteran used the his job as a form of therapy,  

On the other hand, the Board has determined that the overall effect of the PTSD constellation of symptoms does not more nearly approximate or equate to the criteria for the next higher rating, namely, a 70 percent rating due to occupational and social impairment with deficiencies in most areas, such as family relations, judgment, thinking, or mood.  Instead, as noted the symptoms due to PTSD has resulted in occupational and social impairment with reduced reliability and productivity

The Veteran has problems with hypervigilance and startle response, experiencing symptoms, avoidance symptoms, social isolation, detachment, and anger issues.  While it appears the anger, social isolation, and detachment issues cause the most problems, the avoidance or re-experiencing symptoms or hypervigilance and startle response, while affecting his quality of life, do not appear to cause functional impairment.  As to the anger, until injured, the Veteran appears to be able to maintain his employment as a truck driver even with some problems with directing anger towards other drivers.  In fact, to his credit, the Veteran used his job as a strategy to alleviate his symptoms.    He has sleep difficulties with resulting symptoms, but again, the record before the Board demonstrates the severity does not affect his overall occupational functioning.  

It has also affected his family relationships as he has had three failed marriages and currently does not spend time with his children.

While the Veteran suffers from depression, that symptom has not played a role in his occupational functioning, only his social functioning.  Further, although it is not clear, depression symptoms may be more of a result of his physical disabilities.  

Reconciling the various reports into a consistent disability picture, while there has been some fluctuation in the symptoms of PTSD, notably, that it may have affected his relationship with his family, his symptoms have not reached a level of severity and do not more nearly approximate occupational and social impairment with deficiencies in most areas.  Instead, overall, the symptoms of PTSD affect the Veteran occupationally and socially, but have resulted in a disability picture more consistent with reduced reliability and productivity.  Until he was injured, it appears that the Veteran has successfully, although not perfectly, maintained his current occupation that allows him to work in a more solitary setting.  Despite what the Veteran reported as stress in the job, the record does not suggest that if he was physically able, his PTSD would prevent him from returning to work as a long haul truck driver.  The symptoms that are attributable to posttraumatic stress under DSM- IV, such as anger, intrusive thoughts, and anxiety, are not the equivalent to occupational and social impairment that warrants a 70 percent rating as the Veteran is, from a mental health standpoint, able to maintain his current occupation and some limited social relationships and activities. 

Addressing some of the symptoms mentioned for a 70 percent rating, the Veteran may have impaired impulse control such as unprovoked irritability that has manifested itself with the road rage incidents and strained family relationships.  There have not, however, been any periods of violence as referred to in the schedular criteria.  The Veteran has had what he describes as suicidal thoughts, but has also stated he would not act upon them.  The Veteran has reported hypervigilance but there is no indication of obsessional rituals which interfere with routine activities.  The Board's review of the evidence has not demonstrated intermittently illogical obscure or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene. The Veteran has demonstrated difficulty in adapting to stressful circumstances and has difficulty in to establishing and maintaining effective relationships, but for the reasons expressed above, the level of severity has resulted in reduced productivity and has not resulted in the higher level of severity mentioned in the criteria for a 70 percent rating.

The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of his PTSD.  These include, but are not limited to difficulty sleeping, intrusive thoughts, re-experiencing, avoidance, and hyperarousal.  Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with reduced reliability and productivity, due to such symptoms as: anxiety, avoidance, re-experiencing the stressors, avoidance behaviors, and sleep impairment.  See Mauerhan, 16 Vet. App. 436.  As noted above, the Board finds that these symptoms, their level of severity, and effect do not represent a disability picture indicating deficiencies in most areas such as working, school, family relations, judgment, thinking, or mood.

The overall effect of the constellation of symptoms results in moderate symptoms as evidenced by GAF scores in the range of the 50s by VA examiners and caregivers.  A GAF score in the range of from 51 to 60 represents moderate difficulty in social and occupational (e.g., few friends, conflicts with peers or co-workers), which was also consistent with the Veteran's symptomatology.  As such, these scores reflect a disability with moderate symptoms or some difficulty in social, occupational, or school functioning but generally functioning pretty well, and had some meaningful interpersonal relationships. 

In sum, the preponderance of the evidence is against an evaluation higher than 50 percent for PTSD and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).


Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1)  in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here in this case, the rating criteria for PTSD describe the disability levels and symptomatology.  The Board has considered the Veteran's lay statements regarding his disability.  The Veteran describes, as to those symptoms related to service connected PTSD, his reliving the experiences, avoidance behaviors, anxiety, anger, and in the examination, also reported his impairment at work and with others.  The Board has determined that such impairment of functioning is already encompassed in the ratings criteria by rating according to the General Rating Formula for Mental Disorders.  In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule.  For these reasons, a referral for extraschedular rating is not warranted.

Total Disability Rating for Compensation Based on Individual Unemployability

Although the RO denied TDIU in a ratings decision denied in December 2011, the Board notes that the Court has held that a TDIU claim cannot be considered separate and apart from an increased rating claim if the issue of unemployability is reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In this case, the Veteran has again asserted since his TDIU claim was denied that his service-connected disabilities render him unemployable.  Therefore, the issue of entitlement to TDIU is again raised by the record and must be addressed.  Id.  Entitlement to TDIU is discussed below in the REMAND portion of this decision.


ORDER

New and material evidence having been received, service connection for a low back disability is considered reopened, and to this extent the appeal is granted.

Service connection for a low back disability is denied.

Entitlement to an evaluation higher than 50 percent for PTSD before February 12, 2012, is granted, subject to the provisions governing the award of monetary benefits.

Entitlement to an evaluation higher than 50 percent for PTSD February 12, 2012, is denied.


REMAND

The Court has held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54   (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.

The RO denied TDIU in a ratings decision denied in December 2011.  Subsequent thereto, the Veteran testified he is now not only unemployed but that his PTSD symptoms and medication prevents him from seeking and maintaining employment.  The Board therefore finds that the record reasonably raises the issue of total disability based upon individual unemployability.  Id.

VA will grant a total disability based upon individual unemployability (TDIU) when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. § 4.16.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the Veteran from securing or following a substantially gainful occupation.  If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The Veteran is service connected for PTSD, currently rated at 50 percent, diabetes mellitus, currently rated at 20 percent, and residuals of a healed fracture of the left index finger, currently rated at 0 percent.  His total combined rating is 60 percent and the Veteran therefore does not meet the schedular criteria for TDIU.  However, TDIU can also be granted on an extraschedular basis. 38 C.F.R. § 4.16(b).  It is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled, and, therefore, rating boards are to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  See 38 C.F.R. § 4.16(b).  

The Board notes that in November 2010, the Veteran was provided a notice letter that informed him of the criteria for establishing a TDIU.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012).  While the letter contained the correct criteria for establishing a schedular TDIU under 38 C.F.R. § 4.16(a), it contained the incorrect criteria for establishing an extraschedular TDIU under 38 C.F.R. § 4.16(b).  The letter indicated that to establish a TDIU on an extraschedular basis, the Veteran had to establish that his service-connected disability or disabilities presented such an exceptional or unusual disability picture, due to factors such as marked interference with employment or frequent periods of hospitalization, that application of the regular schedular standards was impractical.  In this regard, the letter incorrectly contained the criteria to establish an extraschedular rating under 38 C.F.R. § 3.321(b)(1), rather than the criteria to establish a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b).  Thus, on remand, the RO or AMC should send to the Veteran another notice letter that explains how to establish a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b).

Moreover, as the record does not contain a current, adequate medical opinion, based upon a thorough review of the record, regarding whether the Veteran's PTSD, diabetes mellitus and its residuals, and residuals from a healed fracture of the left index finger, but not in conjunction with his nonservice-connected disabilities, causes him to be unemployable, for VA purposes.  

Accordingly, the case is REMANDED for the following action:

1.   Send to the Veteran and his representative a notice letter that explains how to establish entitlement to a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b).

2.  The Veteran should be provided a VA examination to ascertain whether he is unable to secure or follow a substantially gainful occupation due to the combined effects of all of his service-connected disabilities.  The claims file should be made available to the examiner in conjunction with the examination.  All necessary testing should be conducted.  A complete rationale for all opinions should be provided.

The examiner is asked to assess the Veteran's ability to secure or follow a substantially gainful occupation solely on the basis of his service-connected disabilities and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service connected disabilities prevent him from securing or following a substantially gainful occupation, consistent with his education and occupational experience.  

When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities.

Marginal employment shall not be considered substantially gainful employment.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a).

3.  If the evidence from the examination, or other evidence, demonstrates that the Veteran is unemployable due to service-connected disabilities, then refer the claim to the Director of Compensation for consideration of an extra-schedular rating.

4.  After the foregoing development is completed, adjudicate the claim of entitlement to TDIU.  If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs