Citation Nr: 1328085	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  06-27 344	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine.

3.  Entitlement to a separate rating for a neurological disability (to include radiculopathy) secondary to the service-connected degenerative disc disease of the lumbar spine. 


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

L. Crohe, Counsel


INTRODUCTION

The Veteran served on active duty from September 1979 to December 1982, September 1990 to May 1991, and December 2003 to January 2005.  He received the Army Commendation Medal.  He served in Southwest Asia from November 1990 to January 1991.

These matters initially came before the Board of Veterans' Appeals (Board) from April 2006 and April 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  In the April 2006 decision, the RO denied entitlement to service connection for joint pain.  The RO also granted service connection for a small hiatal hernia with positional reflux and assigned an initial noncompensable disability rating, effective January 10, 2005.

In the April 2010 decision, a Decision Review Officer (DRO) made the following decisions:  granted service connection for PTSD and assigned an initial 30 percent disability rating, effective January 10, 2005; granted service connection for bilateral metatarsalgia and assigned an initial 10 percent disability rating, effective January 1, 2005; granted service connection for tinea pedis with onychomycosis and assigned an initial noncompensable disability rating, effective January 10, 2005; granted service connection for degenerative disc disease of the lumbar spine and assigned an initial 10 percent disability rating, effective January 10, 2005; and assigned an initial 10 percent disability rating for a small hiatal hernia, effective January 10, 2005.  The Board notes that the effective date of service connection for bilateral metatarsalgia is currently January 1, 2005 (which is noted in the April 2010 decision as being the day following the Veteran's discharge from service); however, the day following his discharge from service is January 10, 2005.

In November 2006 and March 2012, the Veteran testified at hearings before a DRO at the RO and before the Board, respectfully.  Transcripts of these hearings have been associated with his claims file.

In September 2012, the Board remanded these matters for further development.

In March 2013, the Board granted service connection for a disability manifested by generalized joint pain, to include fibromyalgia and denied increased initial ratings for bilateral metatasalgia, tinea pedis with onychomycosis, and small hiatal hernia.  The Board granted an increased initial rating of 70 percent for PTSD, but remanded the issue of whether an initial rating in excess of 70 percent was warranted.  At the same time, the Board remanded the issue of entitlement to an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine.  

As previously mentioned in the March 2013 Board decision, in a November 2006 letter, the Veteran raised the issues of entitlement to service connection for a liver disability and a bilateral foot disability other than metatarsalgia (including pes planus).  These issues 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 issues of entitlement to a separate rating for radiculopathy secondary to the service-connected lumbar spine degenerative disc disease is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran's PTSD has been manifested by deficiencies in areas of work, school, family relations, judgment, thinking, and mood, without total social and occupational impairment.  

2.  Throughout the appeal period, the Veteran's lumbar spine degenerative disc disease is productive of pain; thoracolumbar flexion is to 70 degrees or more, and combined range of motion of the thoracolumbar spine ranges from 170 to 230 degrees; ankylosis, muscle spasm or guarding, or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months have not been shown. 


CONCLUSIONS OF LAW

1.  Since January 10, 2005, the criteria for an initial rating higher than 70 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012).

2.  Since January 10, 2005, the criteria for an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The appeal for higher initial ratings for PTSD and degenerative disc disease of the lumbar spine arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). 

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008). 

Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of such error in this case.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4). 

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose the following two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).

At the Veteran's November 2006 and March 2012 hearings, the DRO and the Board identified the issues on appeal at the time of their respective hearings, asked the Veteran about the symptoms and history and asked him about any treatment received for these disabilities to ensure that all relevant records were obtained.  The Veteran provided testimony as to the symptoms and history of his disabilities and the treatment received for these disabilities, and has submitted additional evidence during the course of the appeal.  Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence.  Also, the Board subsequently remanded all issues on appeal to attempt to obtain additional evidence (i.e. VA and private treatment records) suggested by the hearing testimony.  The duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records, pertinent service personnel records, all of the relevant identified post-service VA treatment records, and some of the relevant identified post-service private medical records.  In addition, the Veteran was afforded VA examinations to assess the severity of the Veteran's PTSD and degenerative disc disease of the lumbar spine.  

In March 2013 remand, the Board sought current treatment records from the Memphis VAMC since January 2013 and a VA examination to assess the severity of his service-connected lumbar spine disability.  The requested examination provided in May 2013 and was in accordance with the remand request and is adequate.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); and Barr v. Nicholson, 21 Vet. App. 303 (2007).  The evidence does not suggest and the Veteran has not alleged that his disabilities have increased in severity since his last VA examinations.  

A review of the Virtual VA paperless claims processing system shows that VA treatment records through March 2013 are of record.  The AMC considered these updated VA treatment records in the May 2013 SSOC. 

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 



II.  Legal Criteria-Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

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 evaluation will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

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 claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A.  PTSD

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).

When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  See 38 C.F.R. §§ 4.125, 4.130.

PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. 
 
Under the General Rating Formula, a 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a worklike setting); and inability to establish and maintain effective relationships.  The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood.  Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).

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

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443.  The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

The Board has considered the Global Assessment of Function (GAF) scores assigned during the claim period.  The 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).  GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  Also, 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.  

The GAF score, however, assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

In a March 2013 decision, the Board noted that the Veteran has been diagnosed as having non service-connected psychiatric disabilities, including depression, dysthymia, adjustment reaction, and panic disorder.  The Board determined that as there was no evidence to clearly distinguish the symptoms of the Veteran's service-connected PTSD from his other diagnosed non service-connected psychiatric disabilities the Board attributed all of the Veteran's psychiatric symptoms to PTSD for the purposes of assessing the severity of that disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)). 

In that same decision, the Board granted an increased rating of 70 percent for the Veteran's PTSD and remanded the issue of entitlement to a rating in excess of 70 percent for PTSD.  The issue of entitlement to a rating in excess of 70 percent will be discussed below. 

The Veteran's treatment and examination records show that throughout the appeal period his PTSD has been manifested by symptoms of nightmares; hypervigilance; anhedonia; impaired concentration; memory loss; hyper startle response; anger; irritability; social isolation; disillusioned; paranoia; flat, depressed/subdued, constricted, and blunted affect; and a nervous twitch; flashbacks; crying spells; difficulty sleeping; intrusive thoughts about combat experience; decreased energy; occasional panic attacks; pessimism about the future; a loss of interest in usual activities; depression; feelings of hopelessness, detachment from others, past failure, guilt, and worthlessness; decreased appetite; indecisiveness; occasional increase in motor activity due to anxiety; loss of interest in sex; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships.  Accordingly, the Veteran's symptoms of PTSD are appropriately assigned a 70 percent evaluation.  At no time during the appeal period are the Veteran's symptoms of PTSD shown to have been of such severity that they have met (or more nearly approximated) the criteria for the next higher (100 percent) schedular rating.

Although a September 2005 VA examination report, VA treatment records dated from June 2006 to May 2008, testimony during November 2006 DRO hearing, a March 2008 letter from a VA psychiatrist, and a May examination noted the Veteran's reports of auditory and visual hallucinations, on September 2005 VA examination report, the Veteran described the auditory hallucinations as occasional.  Additionally, on multiple examinations in the VA treatment records dated from March 2005 through March 2013 as well as October 2005, June 2008 and January 2012 VA examination reports, there was no evidence of hallucinations, delusions, perceptual disturbances, or formal thought disorder.  Overall, there was no evidence of persistent delusions or hallucinations.  

Additionally, there was no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, or disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.  Although the Veteran reported that he had memory loss and difficulty concentrating, VA examination reports and treatment records show that his attention and concentration were occasionally limited (with some poor recall for specific dates), and his insight and judgment were fair.  Multiple mental status examinations, however, reported that his memory was intact, he maintained eye contact, he was fully oriented, his speech was clear, his thoughts were logical and goal oriented, he did not experience any formal thought disorders, and his cognitive functioning was unimpaired.  His thoughts were negative for obsessions, phobias, delusions, and ideas of reference.

VA treatment records dated from June 2008 to December 2011, a March 2009 letter from VA medical professionals, and a March 2009 statement by the Veteran included reports of suicidal/homicidal ideations and thoughts of harming others.  The Veteran, however, described these thoughts as occasional.  On multiple examinations in the treatment records and on examinations for compensation purposes, there were no suicidal or homicidal ideations.  While there was some evidence of being irritable, angry, and VA treatment records dated from March to June 2005 and the Veteran's May 2005 claim (VA Form 21-526) include reports of the Veteran having to talk to himself "to keep from doing something to some one or [himself]," there was no evidence to reflect that he was in persistent danger of hurting himself or others.  

The Board notes that GAF scores assigned ranged from 48 to 51 indicative of moderate to serious impairment.  The examiner who conducted the June 2008 VA examination and assigned the lowest GAF score opined that based upon examination of the Veteran and a review of his medical records, the Veteran's PTSD and major depression symptoms resulted in moderate to severe deficiencies in the areas of work, family relations, judgment, thinking, and mood.  His PTSD symptoms had the most impact on his social and occupational functioning.  Here, even the lowest GAF score reported did not support a finding that there was psychiatric impairment consistent with a 100 percent schedular rating.

A 100 percent disability rating requires both total occupational and social impairment.  Although the evidence shows that the Veteran engaged in avoidance and socially isolating behaviors, tended to withdraw, had feelings of detachment and had marital difficulties along with past physical altercations with his wife due to irritability and anger, he has remained married to his second wife for over 25 years.  With respect to his marriage, he reported that there were good times and bad times and that his wife was used to his mood.  He had several children from both marriages, including a son from a previous relationship.  He was reportedly very much a part of his son's life and kept in touch with him regularly.  He also stated that he maintained good relationships with his children and grandchildren, although he was occasionally irritable with them.  He reported that he had "very little social activity" other than his job; however, the overall record reflects that he still has a relationship with his family members and co-workers, albeit the relationships are strained.  Furthermore, he remained active in his church.  While there is significant impairment with his social activities, the Board notes that a 70 percent rating contemplates deficiencies in most areas, including family relations and the inability to establish and maintain effective relationships.  Nevertheless, the evidence of record does not suggest that he is totally socially impaired due to PTSD.

In regards to his occupation, he was employed full time as a police detective, but experienced difficulty at work and was unable to adequately perform his job duties.  He reported that he had poor focus and concentration.  He experienced problems at work because various situations triggered intrusive thoughts and flashbacks.  He received reprimands, despite the fact that he had never experienced such employment problems in the past.  He did not trust himself to react appropriately in certain situations, he had difficulty qualifying for weapons training because he was unable to tolerate noise at the firing range, and he experienced overall stress and dissociation.  In a March 2013 VA treatment record, he reported that he became upset when he was mandated to participate in a training that included a video of an officer who was shot in the line of duty.  Although there is significant impairment with his occupational activities, the Board notes that a 70 percent rating contemplates deficiencies in most areas, including work and difficulty in adapting to stressful circumstances (including work or a worklike setting).  Nevertheless, the evidence of record does not suggest that he is totally occupationally impaired due to PTSD.  Accordingly, the Board finds that the criteria for a 100 percent schedular rating are not met or approximated, and that a schedular rating in excess of 70 percent for PTSD is not warranted. 

In reaching this decision, the Board considered the doctrine of reasonable doubt; however, because the medical evidence of record does not show findings that meet the criteria for a rating in excess of 70 percent, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

B.  Degenerative Disc Disease of the Lumbar Spine

The Veteran's service-connected lumbar spine degenerative disc disease with osteoarthritis status post fracture of L3-4 has been rated under Diagnostic Code 5242 for degenerative arthritis of the spine.  See 38 C.F.R. § 4.71a (2012). 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, including degenerative arthritis of the spine (DC 5242). See 38 C.F.R. § 4.71a.  The General Rating Formula provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching, in the area of the spine affected by the residuals of injury or disease:

A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 30 percent evaluation is warranted where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

A 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine.

Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees.  The normal combined range of motion for the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, DCs 5235-5243 (2012).  

Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when incapacitating episodes have a total duration of at least six weeks during the past 12 months.  A 40 percent evaluation is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  Note 1 states that 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.  See 38 C.F.R. § 4.71a, DC 5243 (2012).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2012).

The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32 (2012).  Rather, to support an increased rating pain must result in functional loss, in terms of limitations in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance."  Id., quoting 38 C.F.R. § 4.40.

September 2005 VA examination report included a diagnosis of degenerative disc disease of lumbar spine.  On examination, there was minimal tenderness in the midline of the lumber spine around the L4-L5 vertebral bodies.  The Veteran did not have any paravertebral tenderness and no spasm.  Range of motion studies revealed that forward flexion was 0 to 80 degrees and extension as well as bilateral lateral flexion and rotation were each 0 to 30 degrees.  He did have a little pain at the end of extension at 30 degrees.  He did not have any pain with repetitive use and did not have any additional limitation of motion with repetitive use of the spine.  No neurological abnormalities were found on examination.  The examiner stated that it was conceivable that pain could further limit function, particularly after being on his feet all day.  The examiner reported that it was not feasible to attempt to express any of this in terms of additional limitations of motion, as these matters could not be determined with any degree of medical certainty.  

VA treatment records documented the Veteran's complaints of back pain.  In August 2007, he was seen for complaints of lower back pain along with numbness and tingling in the legs for the past two years.  The record noted that a May 2007 MRI of the lumbar spine showed no evidence of herniated nucleus pulposus, spinal stenosis or facet neuropathy.  A note dated 11-21-2007 recorded that a MRI of the lumbar spine done at outside facility showed mild/early degenerative disc disease and mild bulge annulus fibrosis at L5.  

During his November 2006 Decision Review Officer (DRO) hearing, he indicated that there was tenderness on his back.  

On My 2008 VA examination, the Veteran's primary complaint was pain in his back radiating down both legs, dysesthesia, and burning sensation over the same areas as the pain.  He indicated that there were no known precipitating or relieving factors although the back pain tended to be worse when he spent more time sitting in his Police Cruiser.  He did not use crutches, braces, cane or corrective shoes.  There was no history of surgery on the back or any of the joints.  Motion of the lumbar spine with lateral bending was within normal limits.  There was some tenderness with forward motion only.  There was no swelling or tenderness in any of the joints.  There was some pain in the back on external rotation of both hips, however, the range of motion was normal and there was no pain in the hips.  

Subsequent VA examination conducted August 2008 showed on physical examination of the lumbar spine that the Veteran was able to perform forward flexion to 90 degrees.  He could extend to 30 degrees (0 to 30 degrees), bilateral lateral bend to 20 degrees and bilateral lateral rotate to 20 degrees.  There was no pain with repeated range of motion.  There was no tenderness to palpation along the lumbar spine.  There was no tenderness to palpation along the paraspinous muscles.  There was no worsening of pain and no complaints of pain with range of motion testing.  

January 2012 VA treatment record showed that the Veteran was issued a lumbar spine corset for support, protection, and stabilization of his back during stance and ambulation.  

On January 2012 VA examination, the Veteran was diagnosed as having lumbar degenerative disc disease (DDD).  In regards to flare-ups, he reported that once or twice daily he had increase in pain and burning in back.  Range of motion testing revealed forward flexion to 80 degrees with pain at 80 degrees, extension to 10 degrees with pain at 10 degrees, bilateral lateral flexion and rotation were each to 20 degrees with pain at 20 degrees.  The Veteran did not have additional limitation in range of motion following repetitive-use testing.  He did have functional loss or impairment following repetitive-use testing manifested by less movement than normal and pain on movement.  He did not have localized tenderness of pain to palpation, muscle spasm, or guarding.  He did have intervertebral disc syndrome, however, the examiner reported that the Veteran did not have any incapacitating episodes over the past 12 months due to IVDS.  He did not use any assistive devices as a normal mode of locomotion.  There were no other pertinent physical findings.  X-ray findings confirmed that he had degenerative lumbar discs and arthritis, but he did not have a vertebral fracture.  The examiner checked "No" when asked if the Veteran's thoracolumbar spine (back) condition impacted his ability to work.  

On May 2013 VA examination, the Veteran reported difficulty ambulating and standing for long periods.  He did not have flare-ups that impacted the function of the thoracolumbar spine.  Range of motion testing revealed forward flexion to 70 degrees with pain at 70 degrees, extension to 10 degrees with pain at 10 degrees, and bilateral flexion and rotation to 30 degrees with pain at 30 degrees.  He did not have any additional limitation in range of motion of the back following repetitive-use testing.  He had functional loss and/or impairment after repetitive-use testing manifested by less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing.  There was tenderness to palpation.  There were no incapacitating episodes over the past 12 months.  He did not use any assistive devices for locomotion.  The thoracolumbar spine condition impacted his ability to work in that he caused significant difficulty with light or heavy physical labor.  The examiner specifically noted that the Veteran did not have incapacitating episodes requiring bedrest and treatment by a physician.  Rather, he had constant pain that requires ongoing treatment by a physician, not "episodes."  He did not have additional limitation during flares because he does not have flares.  He had constant pain with significant functional limitation.

Upon review of the evidence pertaining to the Veteran's lumbar spine degenerative joint disease, the Board has determined that the currently assigned 10 percent evaluation is appropriate.  In this regard, the Board notes that a higher evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The evidence shows that at its worst the Veteran had flexion of the thoracolumbar spine to 70 degrees with pain at 70 degrees on May 2013 VA examination, and combined range of motion to ranging from 170 degrees on January 2012 VA examination, 200 degrees on August 2008 and May 2013 VA examinations, and 230 degrees on October 2005 VA examination.  Repetitive movement had no impact on range of motion, pain, and weakness, fatigue, and incoordination were not found on examination.  In regards to functional limitation, on January and May 2013 VA examinations, the Veteran did have functional loss or impairment following repetitive-use testing manifested by less movement than normal and pain on movement.  Additionally, on May 2013 VA examination, he interference with sitting, standing, and/or weight-bearing.  The thoracolumbar spine condition impacted his ability to work in that he caused significant difficulty with light or heavy physical labor.  The examiner noted that the Veteran had constant pain with significant functional limitation.

The Board accepts that the Veteran has functional impairment and pain.  See DeLuca.  The Board also finds the Veteran's own reports of constant pain to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation. Here, the Veteran retains nearly full range of motion.  Further, repetitive exercise did not change the ranges of motion.  Additionally, there was no evidence of thoracolumbar ankylosis, especially in light of the Veteran's ranges of motion.  As such, the Board finds that the currently assigned 10 percent evaluation is appropriate for the Veteran's low back disability. 

On September 2005 VA examination, the Veteran there was no spasm.  On January 2012 VA examination, he did not have muscle spasm or guarding.  Therefore, a 20 percent rating is not warranted on the basis of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 

As incapacitating episodes have been specifically denied by the Veteran and not shown by the evidence, a higher 20 percent evaluation for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months is not warranted.  See January 2012 and May 2013 VA examination reports.

The current evaluation contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; vertebral body fracture with loss of 50 percent or more of the height; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  Careful review of the record leads the Board to conclude that the Veteran's symptoms during this period are addressed by the currently assigned 10 percent evaluation.

The Board notes that the Veteran is competent to report that his disability is worse.  However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's low back disability is appropriate.  The evidence preponderates against a finding that an increased evaluation is warranted.  As such, the appeal is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board has considered whether assignment of a separate evaluation for neurologic manifestations of a lumbar spine disability is appropriate, and is remanding the issue below.  As a result, the relevant diagnostic codes for the nerves will not be considered at this time.

C.  Extraschedular considerations

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required.  See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996) (when service-connected disability affects employment "in ways not contemplated by the rating schedule[,]" § 3.321(b)(1) is applicable). 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability ratings for PTSD and degenerative disc disease of the lumbar spine inadequate.  The Veteran's PTSD is evaluated under to 38 C.F.R. § 4.130, Diagnostic Code 9411, and his degenerative disc disease of the lumbar spine is evaluated under 4.71a, Diagnostic Codes 5242, 5243, the criteria of which is found by the Board to encompass the Veteran's level of disability and symptomatology.  As noted above, the Veteran's PTSD is manifested by nightmares; hypervigilance; anhedonia; impaired concentration; memory loss; hyper startle response; anger; irritability; social isolation; disillusioned; paranoia; flat, depressed/subdued, constricted, and blunted affect; and a nervous twitch; flashbacks; crying spells; difficulty sleeping; intrusive thoughts about combat experience; decreased energy; occasional panic attacks; pessimism about the future; a loss of interest in usual activities; depression; feelings of hopelessness, detachment from others, past failure, guilt, and worthlessness; decreased appetite; indecisiveness; occasional increase in motor activity due to anxiety; loss of interest in sex; suicidal/homicidal ideations and thoughts of harming others; auditory and visual hallucinations; memory problems; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships.  When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disabilities rating for his PTSD.  A rating in excess of the currently assigned rating is provided for PTSD, but the medical evidence reflects that those manifestations are not present in this case.  The criteria for a 70 rating for the Veteran's PTSD more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required.  See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. § 4.130, Diagnostic Code 9411. 

The Veteran's degenerative disc disease of the lumbar spine, as discussed above, is manifested by a combined limitation of motion ranging from 170 to 230 degrees and forward flexion of 70 degrees or more with associated complaints.  On May 2013 VA examination, the examiner reported that the Veteran's thoracolumbar spine condition impacted his ability to work in that he caused significant difficulty with light or heavy physical labor.  The examiner noted that the Veteran had constant pain with significant functional limitation.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  38 C.F.R. § 4.1 (2012).  The rating criteria also take into account the pain, limitation of function and effects on employment, including any considerable loss of working time form exacerbations or illnesses.  When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disabilities rating for his degenerative disc disease of the lumbar spine.  A rating in excess of the currently assigned rating is provided for degenerative disc disease of the lumbar spine but the medical evidence reflects that those manifestations are not present in this case.  The criteria for a 10 rating for the Veteran's service-connected lumbar spine disability more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required.  See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also under 4.71a, Diagnostic Codes 5242, 5243. 

As the Veteran remains gainfully employed, the Board finds that a claim of entitlement to a total disability rating based upon individual unemployability (TDIU) has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation).


ORDER

An initial rating in excess of 70 percent for PTSD is denied. 

An initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied


REMAND

VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.  38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012).  Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993).

The Board finds clarification is required regarding neurological impairment related to the service-connected lumbar degenerative disc disease because it is unclear whether there are radicular symptoms and if so, which nerves cause the problem and what is the severity of the problem.  Although January 2012 and March 2013 VA examiners indicated that the Veteran did not have signs or symptoms of radiculopathy or any other neurological disability, the examiner failed to address the Veteran's documented complaints of intermittent pain in his back radiating down both legs, numbness, tingling, dysesthesia and burning sensation over the same areas as the pain. See August 2006 and 2007 VA treatment records and May and August 2008 VA examination reports.  Additionally, an April 2007 VA neurology consult showed that there was evidence of pathology in the S1 nerve root distribution, bilaterally.  On May 2008 VA examination, the diagnosis was "degenerative disk disease at the L5 level with bulging or the annulus fibrosis."  The examiner noted that there were two reports of abnormal nerve conduction studies of the S1 nerve root, which was likely caused by or a result of degenerative disk disease and bulging annulus in this area.  The examiner specifically noted that although the MRI did not show nerve impingement, it was not 100 percent sensitive in this regard.  The August 2008 VA examination report suggested that the Veteran may have intermittent radiculopathy.  

As the January 2012 and May 2013 VA opinions appear to be based on an inaccurate history, including the Veteran's reports, they have limited probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

On remand, the Veteran should receive a VA neurological examination to determine what neurological disability, if any, is due to the service-connected lumbar degenerative disc disease that includes consideration of the Veteran's symptoms and medical history. 

Accordingly, the case is REMANDED for the following action: 

1.  Schedule the Veteran for a VA neurological examination to determine the nature and etiology of any neurological disability due to or a result of his service-connected lumbar degenerative disc disease. The examiner must review the claims folder and note such review in an examination report or addendum.  If there are relevant records in Virtual VA, the agency of original jurisdiction should provide these records to the examiner or inform the examiner of their contents.

Any tests or studies deemed necessary, including an electromyogram (EMG) and/or nerve conduction studies (NCS) if appropriate, should be conducted. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any diagnosed neurological disability is etiologically related to the service-connected lumbar degenerative disc disease. If so, identify the nerve(s) affected and the degree of impairment affected. 

The examiner should specifically address specifically address VA treatment records and examination reports that document the Veteran's complaints of intermittent pain in his back radiating down both legs, numbness, tingling, dysesthesia and burning sensation over the same areas as the pain; the April 2007 VA neurology consult that showed that there was evidence of pathology in the S1 nerve root distribution, bilaterally; the diagnosis of "degenerative disk disease at the L5 level with bulging or the annulus fibrosis" on May 2008 VA examination, and the August 2008 VA examination report suggesting that the Veteran may have intermittent radiculopathy. 

The examiner should provide a rationale for the opinions that take into account the Veteran's reports of his history or events, and his current symptoms.

If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so.

If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.

2.  Re-adjudicate the claims for a separate rating for a neurological disability (to include radiculopathy) secondary to the service-connected lumbar spine disability.  If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental Statement of the Case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record.  An appropriate period of time should be allowed for response. 

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 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).



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs