Citation Nr: 1624067 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 09-42 019A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable rating for posttraumatic stress disorder (PTSD), exclusive of a period of hospitalization for which a temporary total rating is being granted. 2. Entitlement to an increased rating for osteoarthritis, lumbar spine, with lumbosacral strain, currently rated as 20 percent disabling. 3. Entitlement to temporary total rating based on treatment for service connected PTSD in a VA hospital for in excess of 21 days, from May 16, 2012 through June 29, 2012. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1972. He was awarded the Purple Heart and Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO granted entitlement to service connection for PTSD, assigning a non-compensable rating, and continued the Veteran's 20 percent rating for lumbar spine osteoarthritis with lumbosacral strain. The Veteran was granted service connection for his lumbar spine disability in a May 1973 rating decision, which assigned his current twenty percent rating. In February 2012, the Board remanded the claim for additional development. For the reasons indicated below, the agency of original jurisdiction (AOJ) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2012, the RO continued the noncompensable rating for PTSD and denied a temporary total evaluation based on hospitalization at a VA hospital, finding that the hospitalization was not for the service connected PTSD. Although the RO indicated in its notification letter that in order to appeal this denial the Veteran had to file a notice of disagreement, the Board finds that the issue of whether the Veteran was entitled to a temporary total rating for psychiatric hospitalization during the pendency of the claim for an increased rating for PTSD was part and parcel of the claim for an increased rating for PTSD. Cf. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (issue of entitlement to TDIU is part and parcel of an increased rating claim). The Board will therefore address the issue on the merits. The Veteran appeared and provided testimony before the undersigned in October 2011. The issue of entitlement to service connection for GERD, claimed as secondary to PTSD, has been raised by the record. See October 2011 Board hearing transcript. However, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Throughout the pendency of the claim, symptoms of the Veteran's PTSD have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not such impairment with reduced reliability and productivity. 2. Throughout the pendency of the claim, symptoms of the Veteran's osteoarthritis, lumbar spine, with lumbosacral strain results have more nearly approximated forward flexion of the thoracolumbar spine 30 degrees or less, but not ankylosis or incapacitating episodes. 3. The evidence is at least evenly balanced as to whether the Veteran's hospitalization at a VA hospital for a period in excess of 21 days, from May 16, 2012, to June 29, 2012, was for his service connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for PTSD, have been met, exclusive of the period for which a temporary total rating is being granted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2015). 2. The criteria for a rating of 40 percent, but no higher, for osteoarthritis, lumbar spine, with lumbosacral strain, are met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, DC 5237 (2015). 3. The criteria for a temporary total rating based on treatment for service connected PTSD in a VA hospital for in excess of 21 days, from May 16, 2012 through June 29, 2012, have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.29 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The RO sent a letter to the Veteran in February 2009, prior to the initial adjudication of his claim of service connection, giving him proper notice in satisfaction of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice informed him of the evidentiary requirements for service connection, the division of responsibility between the Veteran and VA for obtaining evidence, and the process by which disability ratings and effective dates are assigned. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. Specifically records from VA have been obtained. The Veteran was afforded VA medical examinations in March 2009 (spine), May 2009 (mental health), and October 2012 (mental health) for his claims. The Veteran asserted in a June 2009 statement that the May 2009 examination was inadequate as he feels that it was rushed and that he did not have enough time to discuss his symptoms. However, a review of all examinations shows that they are adequate. The examiners considered the Veteran's history and symptoms in detailing the current severity of his symptoms. The Veteran refused to attend VA examinations that were ordered in the Board's May 2014 remand decision. The Board will thus adjudicate the Veteran's claims based on the current evidence of record. There was also substantial compliance with the Board's May 2014 remand decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Appeals Management Center (AMC) obtained outstanding VA records, and sent the Veteran a letter in August 2015 informing him how to establish a TDIU. The AMC also scheduled the Veteran for VA examinations to determine the current severity of his PTSD and lumbar spine disabilities. However, records indicate that the Veteran refused to attend. Under 38 C.F.R. § 3.655(a) when entitlement to a benefit cannot be established without a current VA examination, and a claimant fails to report for such an examination without good cause, action will be taken in accordance with 38 C.F.R. § 3.655(b). Here, as shown below, the benefit sought in connection with the claim for an increased rating for low back disability was established without a current VA examination, as the Board is granting a 40 percent rating based on the evidence of record. Consideration of 38 C.F.R. § 3.655(b) in connection with this claim is therefore not required. Moreover, under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. As the claim for a higher rating for PTSD was an initial rating claim, it falls with the "original compensation claim" language and will be decided based on the evidence of record. Turk v. Peake, 21 Vet. App. 565, 570 (2008) (a claim for a higher initial rating is an "original compensation claim" and not a "claim for increase" for purposes of 38 C.F.R. § 3.655(b)). In addition, neither the Veteran nor his representative assert that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board thus finds that he is not prejudiced and the Board can adjudicate the claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the VCAA requirements. The Veteran had an opportunity to provide additional information or evidence, and he filed statements in support of his claims. There is no indication of available, pertinent outstanding evidence. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A. Initial Rating for PTSD Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, certain mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. The criteria for a 10 percent rating are: 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, or symptoms controlled by continuous medication. The criteria for a 30 percent rating are: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating 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); 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. 38 C.F.R. § 4.130, DC 9411. The symptoms listed in 38 C.F.R. § 4.130 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 for a mental disorder. In addition to the symptoms listed in the rating schedule, 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 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The DSM provides for a global assessment of functioning (GAF), a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DSM-IV). Upon review of the record, Veteran is entitled to an initial rating of 30 percent, but no higher, for his PTSD. The Veteran is entitled to this rating due to occupational and social impairment due to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran's first mental health examination was held in May 2009. He stated that he has friends with whom he socializes. He stated that his PTSD does not affect his social life, and that anger would impact his occupational functioning. He was diagnosed with PTSD in remission and assigned a GAF score of 68. On November 4, 2009, the Veteran was assigned a GAF score of 69. He reported sleep disturbances and no recent homicidal or suicidal ideation. He was prescribed Prazosin and Buspar. On November 29, 2011, he reported anger, sleep disturbances, depression, and isolation. He was assigned a GAF score of 63. At the time of his discharge from inpatient treatment in June 2012, the Veteran was deemed psychologically stable. He denied feelings of hopelessness, helplessness, worthlessness, or homicidal or suicidal ideation. He was assigned a GAF score of 60. On July 2, 2012, he was assigned a GAF score of 55 and diagnosed with anxiety and depression. Memory difficulties were reported on July 9, 2012. He reported sadness and depression on August 22, 2012. The Veteran had his second VA mental health examination on October 11, 2012. He was diagnosed with PTSD in remission. The examiner stated that the Veteran had 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. No symptomology was noted, and a GAF score of 65 was assigned. At his Board hearing that that month, he reported sleep disturbances. In December 2012, the Veteran stated he was not impaired occupationally, socially, or emotionally by his traumatic experiences in Vietnam. A GAF of 60 was assigned. In March 2013, no new concerns were located at a mental health session. A GAF of 65 was assigned. In August 2013, the Veteran complained of flashbacks and nightmares. A November 2014 mental health note described anxiety and sleep disturbances. In January 2015, the Veteran reported chronic sleep impairment and denied feeling overly anxious or severely depressed. The symptoms throughout the appeal period have most nearly approximated the criteria for a 30 percent rating (based on symptoms listed in the criteria such as chronic sleep impairment as well as the overall level of impairment showing occasional decrease work efficiency and intermittent inability to perform occupational tasks). Although the VA examiner's and health care professionals generally assigned GAF scores of 60 or above and the VA examiners checked the box indicating that the symptoms most nearly approximated the criteria for a 10 percent rating, the question of whether the symptoms more nearly approximate the criteria for a higher rating is a legal and not a medical one. 38 C.F.R. § 3.100(a) (2012) (delegating the Secretary's authority "to make findings and decisions ... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present."); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity"). The Veteran's symptoms including chronic sleep impairment and its effects reflected impairment that more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. However, neither the symptoms nor overall level of impairment have more nearly approximated the criteria for a 50 percent rating during any portion of the pendency of the claim. There was no indication that the Veteran had any of the symptoms listed in the criteria for a 50 percent rating or that his impairment reduced reliability and productivity. Moreover, although there was one instance of suicidal ideation, the above evidence record shows that this was a single aberrational symptom rather than one indicating that the severity of the disability had increased to an extent warranting a higher rating. See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture"). In addition, the Board is awarding a temporary total evaluation for the period in which this ideation occurred, during which the Veteran was hospitalized. In making this determination, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the rating assigned herein for PTSD under any alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As to whether an extraschedular rating is warranted for the Veteran's PTSD, the discussion above reflects that the symptoms are fully contemplated by the applicable rating criteria. As indicated by the cases cited above, in particular Mauerhan v. Principi, 16 Vet. App. 436 (2002), the criteria in the general rating formula for mental disorders include both the symptoms listed as symptoms "such as" those listed, along with the overall impairment caused by these symptoms. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed. The Board therefore need not consider whether this disability causes marked interference with employment for purposes of an extraschedular rating. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). B. Temporary total evaluation for PTSD Under 38 C.F.R. § 4.29, a total, i.e., 100 percent, rating is assigned when it is shown that a service-connected disability has required hospital treatment in a VA or VA-approved hospital for a period in excess of 21 days. This is true regardless of whether the hospital admission was for a service-connected disability, as long as hospital treatment for a service-connected disability is instituted and continued for a period of 21 days. 38 C.F.R. § 4.29(b). The Veteran was hospitalized from for the period of May 16, 2012, to June 29, 2012. He was admitted due to suicidal ideation. The records of hospitalization reflect that the Veteran experienced multiple diagnoses. On May 16, 2012, he was diagnosed with mood disorder not otherwise specified, cocaine dependence, and PTSD. At his June 29, 2012, discharge, he was diagnosed with anxiety disorders, cognitive disorders, and mood disorders. As the Board cannot differentiate between the effects of a service-connected and nonservice-connected disorder, it must attribute the effects to the service-connected disability. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). The evidence is therefore at least evenly balanced as to whether the Veteran's hospitalization in excess of 21 days was for his service connected PTSD. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a temporary total rating for the period of May 16, 2012, to June 29, 2012, under 38 C.F.R. § 4.29 based on treatment for service connected PTSD in a VA hospital for in excess of 21 days, is warranted. C. Increased Rating for Lumbar Spine Disability Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. VA must consider such "functional losses" of a musculoskeletal disability; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion and should be equated to loss of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. The Veteran currently has a 20 percent rating. Under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a rating of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Id. at Note (1). The Veteran's sole spine examination was on March 6, 2009. He reported constant pain that was both sharp and dull, and had pain that occasionally radiated down his right leg. However, he denied tingling, weakness, or numbness in his back. He stated that he can only walk fifty yards. The Veteran stated that his back disability gets flare-ups by bending, walking, weather, and overuse, and that these flare-ups can last anywhere from several hours to several days. The Veteran also asserted that he had approximately 9 incapacitating episodes over the past year, and that each episode lasted for two to three days. Flexion was measured as zero to 40 degrees, with pain beginning at 10 degrees. Extension was measured as zero to 10 degrees, with pain at 10 degrees. The estimated additional limitation in range of motion during a flare-up was that his lumbosacral spine is additionally limited to zero to 10 degrees of flexion and zero degrees of extension due to increased pain. The Veteran was diagnosed with chronic low back strain, degenerative disease, bulging discs, and osteoarthritis. The examiner stated that the Veteran's disability is moderately impairing. The Veteran also reported occasional pain to his right lower extremity. Sensitivity to touch was normal in lower extremities, and strength was within normal limits, at 4 on a scale of 1 to 5. At his October 2011 Board hearing, he reported pain, usually at six and a half or seven on a scale of ten, incapacitating episodes, and pain that shoots down his hips. When taking the DeLuca factors into consideration, the Veteran is entitled to a rating of 40 percent, but no higher, for his lumbar spine disability, inasmuch as his pain began at 10 degrees and flare ups were also indicated to reduce his range of motion such that it would more nearly approximate the forward flexion of the thoracolumbar spine 30 degrees or less required for a 40 percent rating. However, he is not entitled to a rating of 50 percent due to the fact that there is no evidence of ankylosis of the entire thoracolumbar spine, and he is not entitled to a rating of 60 percent because there is evidence of neither intervertebral disc syndrome (IVDS) nor incapacitating episodes of such with a total duration of at least six weeks. Aside from a lack of an IVDS diagnosis, the Veteran's statements at his VA examination suggest that any incapacitating episodes only totaled 27 days over the past year, which is less than six weeks. While the Veteran described lengthier episodes at his Board hearing, he referred to episodes that occurred while he was incarcerated, more than twelve months before his hearing. In making this determination, the Board has reviewed the Veteran's VA treatment records, which are silent for both IVDS and ankylosis of the entire thoracolumbar spine. Moreover, Note 1 to the Formula for rating IVDS defines an incapacitating episode as a period acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician or treatment by a physician, and there is no evidence of such. The Veteran is also not entitled to a separate rating for neurologic abnormalities. The Board notes that the Veteran's VA treatment records provide an indication of radiculopathy. See, e.g., July and March 2012 (possible symptoms of radiculopathy); May 2011 (lumbar pain with radiculopathy); February 2011 (radicular low back pain). The Veteran has also reported pain that radiates down his leg, as noted at his VA examination. At that event, sensitivity to touch was normal in lower extremities, and strength was within normal limits, at 4 on a scale of 1 to 5. However, evidence of record does not indicate that there have been symptoms approximating mild incomplete paralysis warranting a compensable rating under DC 8520 for radiculopathy of the lower extremities. Rather, the VA examination noted normal sensitivity to touch and normal strength. To the extent that the record does not reflect the Veteran's current severity, it is the Veteran who refused to attend his Board-ordered VA examination. The Court of Appeals for Veterans Claims has explained that VA's duty to assist is a two-way street. If an appellant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the rating assigned herein under any alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, the criteria for evaluation of the spine disability fully contemplate the Veteran's complaints of limited and painful motion, particularly when the impact of the DeLuca factors is considered in accordance with the applicable regulations. Thun v. Peake, supra. The general rating formula for diseases and injuries of the spine indicates that its criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Moreover, pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet.App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40 4.45. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed. No further discussion of 38 C.F.R. § 3.321 is therefore required in this regard. D. Other matters In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). Although readjudication of the issue of entitlement to a TDIU will necessarily involve consideration of the collective impact of multiple disabilities on the Veteran's employability, the Board has not reached that issue in the extraschedular discussion above, in which it found that the criteria contemplated the symptoms and that consideration of whether there was marked interference with employment was not required. Cf. Brambley v. Principi, 17 Vet.App. 20, 24 (2003) (denial of extraschedular rating and remand of issue of entitlement to TDIU can be inconsistent in some circumstances). The Board will therefore not address the issue further. ORDER An initial rating of 30 percent, but no higher, for PTSD, is granted, exclusive of the period for which a temporary total rating is being granted, subject to controlling regulations governing the payment of monetary awards. A rating of 40 percent, but no higher, is granted for osteoarthritis, lumbar spine, with lumbosacral strain, subject to controlling regulations governing the payment of monetary awards. A temporary 100 percent rating for PTSD based on treatment for service connected PTSD in a VA hospital for in excess of 21 days, from May 16, 2012 through June 29, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND Finally, the Board has considered the Veteran's claim for a TDIU. This was raised by the record when the Veteran testified before the undersigned that, even though he was retired, he was unable to work due to his service connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran, due to the Board's actions above, now meets the criteria for a schedular TDIU. As such, his claim for a TDIU should be readjudicated to take these ratings into consideration, as well as his previously unconsidered service connected left forearm gunshot wound, residuals of a chest gunshot wound, and dermatitis. Any development deemed necessary prior to adjudication, to include an examination, should be conducted. Accordingly, the issue of entitlement to a TDIU is REMANDED to the AOJ for the following action: After any necessary development has been completed, to include a VA examination if deemed warranted, the Veteran's TDIU claim should be re-adjudicated; such adjudication must consider the combined effects of the Veteran's service connected PTSD, lumbar spine, left forearm gunshot wound, residuals of a chest gunshot wound, and dermatitis. The Veteran and his representative should then be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the case is returned to the Board for further review. No action is required of the Veteran until he is notified by the RO/AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655. The Veteran has the right to submit additional evidence and argument on the matter 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. ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). Department of Veterans Affairs