Citation Nr: 1753712	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO. 12-13 757	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent for adjustment disorder with depressed mood, prior to October 28, 2015.

2. Entitlement to an initial rating in excess of 50 percent for adjustment disorder with depressed mood, from October 28, 2015.

3. Entitlement to a rating in excess of 20 percent for spondylolisthesis at L5-S1.

4. Entitlement to a total rating based on individual unemployability (TDIU) based on service-connected disabilities, prior to October 28, 2015.


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1971 to March 1978.

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2011 and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In September 2016, the Board remanded the Veteran's claims for additional development. The case has since returned to the Board for further consideration.

The Veteran had a hearing before a Veterans Law Judge in October 2014.  The VLJ who held that hearing is no longer employed at the Board. In August 2017, the Veteran was informed of this fact and provided an opportunity to request a new hearing. The Veteran did not respond to the letter, and thus is presumed to not want a new hearing. 


FINDINGS OF FACT

1. Prior to October 28, 2015, the Veteran's adjustment disorder with depressed mood  was not shown to cause occupational and social impairment with reduced reliability and productivity.

2. From October 28, 2015, the Veteran's adjustment disorder with depressed mood was not manifested by occupational and social impairment with deficiencies in most areas.

3. Throughout the appeal period the preponderance of the evidence is against the Veteran's spondylolisthesis at L5-S1 being manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

4. Prior to October 28, 2015, the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.


CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent for adjustment disorder with depressed mood have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.130, DC 9440 (2017).

2. The criteria for an initial rating in excess of 50 percent for adjustment disorder with depressed mood have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.130, DC 9440 (2017).

3. The criteria for a rating in excess of 20 percent for spondylolisthesis at L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017).

4. The criteria for a TDIU rating prior to October 28, 2015, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C.A § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

As noted above, in September 2016, the Board remanded the increased rating issues to the AOJ for additional development. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).


II. Increased Ratings 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017).

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

A. Adjustment Disorder with Depressed Mood

The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including adjustment disorders: 

A 30 percent disability rating is warranted when there is 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 conversation normal), 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). 38 C.F.R. § 4.130, DC 9440.

A 50 percent disability rating is warranted when there is 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. Id.

Under the formula, a 70 percent rating is warranted where 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 inability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted where 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; memory loss for names of close relatives, own occupation, or own name. Id.

The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas." Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation 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 examination." Id.

The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Health Disorders (4th ed. 1994) (DSM-IV). A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). DSM-IV; 38 C.F.R. §§ 4.125, 4.130. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, 8 Vet. App. at 242. An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

i. Prior to October 28, 2015

During a July 18, 2006 visit to the Asheville VAMC, the Veteran denied feeling down, depressed or hopeless. The Veteran did not complain of decreased pleasure or interest in activities. The examiner assessed the Veteran to be negative for depression.

During a September 25, 2007 visit to the Asheville VAMC, the Veteran again denied feeling down, depressed or hopeless; he also denied problems with feeling interest or pleasure. The examiner stated a Patient Health Questionnaire (PHQ-2) screening was performed and the Veteran had a negative screening for depression.

During a September 16, 2008 visit to the Asheville VAMC, the examiner stated the Veteran had no anxiety, depression or suicidal ideations.

During a July 21, 2009 visit to the Hickory CBOC, the Veteran again denied symptoms of depression or decreased interest. The examiner stated a PHQ-2 screening was performed and the Veteran had a negative screening for depression.

During an August 24, 2010 visit to the Hickory CBOC, the Veteran again denied symptoms of depression or decreased interest. The examiner stated a PHQ-2 screening was performed and the Veteran had a negative screening for depression.

In February 2011, the Veteran's girlfriend submitted a lay statement. The statement includes a description of the symptoms experienced by the Veteran, including decreased enjoyment.

In December 2012, the Veteran received a VA examination. There are 32 symptoms that are listed in the examination report (which are the symptoms listed in the various criteria for evaluating psychiatric disorders) that the examiner is asked to check as to what symptoms the Veteran demonstrates, and the examiner checked only the symptoms of flattened affect. When asked which of the following criteria summarizes the Veteran's level of occupational and social impairment with regard to all mental diagnoses, the examiner checked the criteria that falls under the noncompensable rating. The examiner noted that in July 2012, the Veteran underwent the psychiatric evaluation which at the Salisbury VAMC, and the examiner diagnosed the Veteran with adjustment disorder. The Veteran did not require psychiatric medications and did not undergo subsequent psychiatric treatment. The Veteran's GAF at that session was 71, which the Board notes is just beyond the range of mild symptomatology or some difficulty in social or occupational functioning.

The examiner checking the noncompensable criteria means that the examiner did not find that the Veteran's symptoms were manifested by 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; or difficulty in establishing and maintaining effective work and social relationships.

In a visit to the Hickory CBOC on December 21, 2012, another PHQ-2 screen found the Veteran negative for depression. The examiner stated he reviewed the results of the PHQ depression screening. The examiner stated that he personally evaluated the patient including inquiry about feelings of hopelessness, suicidal thoughts, suicide plan if thoughts are present, and prior suicide attempts. Based on the evaluation, the examiner stated that there was no mental health condition requiring further intervention.

In a visit to the Hickory CBOC on December 20, 2013, the Veteran was again found negative for depression during a PHQ-2 screening.

In a Board hearing on October 30, 2014 the Veteran testified that he experienced symptoms of depression, irritability, and mood swings. The Veteran stated that he was no longer working because he could not withstand the pain related to his low back disability. When asked why he could no longer work, the Veteran stated that he would need to take frequent rest breaks. The Veteran also stated he had difficulty with attention and concentration that would affect his ability to work.

The Board finds that the reason that the Veteran left his job was not because of his psychiatric symptoms, as the Veteran refers to physical pain as the main reason he stopped working. Furthermore, in a February 2011 VA examination for spondylolisthesis, the Veteran states that he owns his own construction business. 

In a visit to the Hickory CBOC on January 6, 2015, the Veteran was again found negative for depression during a PHQ-2 screening.

After a careful review of the evidence of record, the Board finds that preponderance of the evidence is against a finding that the Veteran's psychiatric symptoms were manifested by occupational and social impairment with reduced reliability and productivity prior to October 28, 2015. For example, the Veteran is able to maintain a relationship with his girlfriend, with whom he lives. The Veteran was shown on multiple occasions to be negative for depression screenings. According to the Veteran's own statements, the Veteran's adjustment disorder was not the catalyst for him leaving his job; instead physical pain motivated the Veteran to stop working. The Veteran reported that he was able to run the construction business that he owns. Additionally, the Veteran's GAF score of 71 is indicative of no more than mild symptomatology or some difficulty in social or occupational functioning. Additionally, when the Veteran submitted his claim for SSA disability benefits, he did not include a psychiatric disorder as being the basis of his no longer working.
The Board finds that the preponderance of the evidence is against a finding that the Veteran's psychiatric symptoms have resulted in overall impairment to the required level of severity so as to warrant an increased disability rating.

Thus, the Board finds that an increased disability rating in excess of 30 percent for the Veteran's adjustment disorder with depressed mood is not warranted for the period prior to October 28, 2015. The preponderance of evidence is against the Veteran's claim. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

ii. From October 28, 2015

On October 28, 2015, the Veteran received a VA examination. When asked which of the following best summarizes the Veteran's level of occupational and social impairment with regards to all mental diagnoses, the examiner checked that the Veteran's symptoms were manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, which is the criteria for a 30 percent rating.

The Veteran reported living with his girlfriend and having regular interactions with one of his sons. The Veteran again reiterated that he stopped working because of his back problems. The Veteran expressed an interest in returning to work, if physically possible. The Veteran reported that he was not prescribed any psychotropic medications. The Veteran described periods of low motivation, low energy, anhedonia, tearfulness, social withdrawal, and occasional irritability. The Veteran stated his depression "comes and goes" and that sometimes "it's not so bad." The examiner noted that the Veteran's insight and judgment were intact, and that there was no evidence of a thought disorder or hallucinations. The Veteran denied homicidal or suicidal ideation. The examiner also noted the Veteran was neatly and casually dressed, with clear speech and full orientation.

The examiner stated the Veteran's adjustment disorder with depressed mood caused some functional limitations through decreased energy and motivation, interpersonal withdrawal, anhedonia, and occasionally increased irritability. The examiner opined these functional limitations would be relevant in either physical or sedentary work situations. The examiner also opined they would likely be of greater magnitude in situations with increased task complexity.

In checking the criteria that fall under the 30 percent rating, the examiner did not find that the Veteran's symptoms were manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.

In a December 22, 2015 visit to the Hickory VA Clinic, the Veteran reported that he still lived with his girlfriend and felt symptoms of depression and flattened affect. The Veteran reported seeing his son fairly often. The examiner suggested the Veteran take short walks, work or volunteer at nearby horse races. The Veteran denied suicidal or homicidal ideation.

In a January 6, 2016 phone check, the Veteran stated he has joined a fitness center and was assisting a friend put on a horse race. The VA staff member who made the call noted that the Veteran sounded to be in good spirits and felt motivated by the previous visit.

In January 2017 the Veteran underwent a screening for depression, with negative results.

After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against an initial rating in excess of 50 percent as of October 28, 2015. The record supports that the Veteran is able to maintain familial and social relationships. The Veteran has not indicated any problems with the business he mentioned owning in a February 2011 VA examination for spondylolisthesis. The Veteran engages in organizing events, such as the horse race for his friend. The Board finds that the Veteran's psychiatric symptoms have not resulted in overall impairment to the required level of severity so as to warrant a 70 percent disability rating.

Thus, the Board finds that a disability rating in excess of 50 percent for the Veteran's adjustment disorder with depressed mood is not warranted for the period from October 28, 2015. The preponderance of evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

B. Spondylolisthesis at L5-S1

The Veteran's spondylolisthesis at L5-S1 rated under DC 5242, for arthritis.

Under the general formula for evaluating diseases or injuries of the spine, it 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 residuals of injury or disease, a 20 percent evaluation is assigned 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. 38 C.F.R § 4.71a, DCs 5235 to 5242.

A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id.

A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id.

A 100 percent evaluation is assigned for unfavorable ankylosis of the entire 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.

38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint).

Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment).

On October 18, 2010, the Veteran received a neurosurgery consult at the Durham VAMC. The Veteran reported occasional back pain and denied severe back pain. The examination showed that the Veteran's low back was unremarkable with a normal straight leg test. The examination showed that the Veteran's motor ability was 5/5, representing normal strength. Regarding the Veteran's spondylolisthesis, the examiner reported the Veteran was minimally symptomatic.

On November 5, 2010 the Veteran filed a claimed for an increased evaluation of his lower back disability.

In February 2011, a buddy statement was submitted by the Veteran's girlfriend. The statement noted discomfort and reduced mobility.

On February 9, 2011, the Veteran received a VA examination. The examiner found forward flexion to 50 degrees, without ankylosis. The examiner noted that there was no change in the Veteran's range of motion with repetitive motion. The examiner noted there was no objective evidence of muscle spasm or deformity and that straight leg raising was negative.

In a statement in support of claim dated April 1, 2011, the Veteran stated his February 2011 VA examination was inadequate. The Veteran stated that the examination consisted of various motion tests and leg tests. The Veteran testified at his hearing that his February 2011 examination was inadequate because the examiner did not utilize a goniometer, despite indicating that he did use such a device on the examination record. In a notice of disagreement dated July 6, 2011, the Veteran stated that the February 2011 VA examination was inadequate because a goniometer was not used.

The Board finds the February 2011 VA examination to be adequate. Although the Veteran contends that the examiner did not use a goniometer and accordingly the examination was inadequate, the description of the examination provided by the Veteran describes appropriate motion and leg tests. Finally, the results of the range of motion testing in the February 2011 VA examination are independently repeated in the December 2012 and March 2017 VA examinations, lending credibility to the February 2011 VA examination results.

A statement dated March 25, 2011 was received from the Veteran's primary care physician at the Asheville VAMC. The examiner stated the Veteran suffers from significant back pain and stiffness as a result of worsening spondylolisthesis of the lumbar spine. The examiner opined that the Veteran was fully disabled as a result of his spondylolisthesis of the lumbar spine.
The Board finds that this statement is not probative, because the examiner's opinion is not supported by a sufficient rationale, range of motion testing, examination results, or a review of the Veteran's claims file.

In April 2011, the Veteran underwent an examination in connection with his Social Security Administration disability benefits. The examiner noted that the Veteran walked without an assistive device. The Veteran was able to flex to 90 degrees in the lumbar region, there was no paravertebral muscle spasm, and motor strength in the lower extremities was 5/5. The examiner noted that Veteran was able to walk and could get on and off the table by himself. The examiner noted that he was able to take his shoes off and put them back on by himself, and when the Veteran walked, he did not have any Romberg sign. The Veteran had a positive straight leg test, and the examiner noted that muscle strength was 5/5, indicating a normal result. The Veteran did not use an assistive device for locomotion.

In May 2012, the Veteran received a VA examination and the examiner completed a handwritten "Lumbar Spine Impairment Questionnaire." Records of the examination itself could not be located by VA; however the questionnaire is in the Veteran's claims file. The examiner wrote the Veteran had flexion to 30 degrees, which was when he first experienced pain. The examination report stated the Veteran needs help wearing his shoes, and experienced tenderness. The examiner did not note muscle spasm, weakness or atrophy. The examiner noted that the Veteran experienced pain which periodically interfered with attention and concentration.

The Board assigns lessened probative value to this questionnaire, as the examiner gave conclusory statements without any supporting rationale. Furthermore, the exam lacks requisite detail, such as a discussion as to whether the Veteran was able to flex beyond 30 degrees. Rather, the examiner noted that the Veteran first experienced pain at 30 degrees, and the criteria for evaluating the lumbosacral spine contemplates motion with pain-not just when pain first begins.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine ("With or without symptoms such as pain (wh[e]ther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease"). Thus, the diagnostic code contemplates painful motion, and thus an examination without full range of motion analysis is inadequate.

On May 8, 2015 the Veteran received a back x-ray. The examiner reported that the Veteran's spondylolisthesis was stable in comparison to his prior examination from September 2010.

In a handwritten back condition disability benefits questionnaire (DBQ) dated May 13, 2015, the Veteran was shown to have forward flexion to 30 degrees. Repetitive use testing was not performed. The examiner noted localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. A reflex examination was not performed. The Veteran was negative for the straight leg raise tests. The examiner stated the Veteran does not use any assistive devices for locomotion.

The Board assigns this DBQ lessened probative value, as the examiner did not provide any rationale as to why repetitive use testing, deep tendon reflex testing, or sensation to light touch testing were not performed. Additionally, while the examiner acknowledges that while scans of the Veteran were performed, and they are relevant diagnostic test findings from the Asheville VAMC, he does not provide an opinion regarding the findings. Furthermore, the examiner did not report any findings related to functional loss and additional limitation of the Veteran's range of motion.

In October 2015, the Veteran received a VA examination. The examiner found that the Veteran's forward flexion of the thoracolumbar spine to be 50 degrees and made a specific finding that the Veteran did not have ankylosis of the spine. The examiner stated the abnormal range of motion did not contribute to a functional loss. The Veteran reported that the soft tissue surrounding spine was "tender" to palpation due to chronic, on-going pain. The Veteran was not able to perform repetitive use testing. The examiner stated that neither the Veteran's localized tenderness nor his guarding resulted in abnormal gait or abnormal spinal contour. The Veteran was unable to perform the straight leg raise test. The Veteran denied using a back brace, and the examiner noted the Veteran did not use an assistive device.
In March 2017, the Veteran received a VA examination. The examiner found the Veteran's forward flexion of the thoracolumbar spine to be 50 degrees and again made a specific finding that the Veteran did not have ankylosis of the spine. The examiner noted that prolonged standing, ambulation and sitting results in back pain and work that requires such positions would have optimum performance compromised. The examiner noted that range of motion contributes to a functional loss, stating that pain reduced the range of motion. The Veteran did not perform repetitive use testing due to anticipated pain exacerbation. The examiner noted that the Veteran did not have ankylosis. Light tenderness to palpation in the lower back area was found. The Veteran was unable to perform the straight leg raise test due to anticipated pain. The Veteran denied using an assistive device for locomotion.

In deciding this appeal, the Board must weigh the evidence and in so doing, may accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board may favor the opinion of one competent medical expert over that of another, provided the reasons therefor are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998).
 
Further, the Board is not required to accord more weight to the opinion of a treating physician, see White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001), as the Court has explicitly "rejected the broad application of the 'treating physician rule' that gives the opinions of treating physicians greater weight in evaluating veterans' claims." Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (citing Harder v. Brown, 5 Vet. App. 183, 188 (1993)); see Guerrier v. Brown, 7 Vet. App. 467 (1993). While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it substantial weight. See generally Guerrieri, 4 Vet. App. at 471-73; Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).

The Board affords great probative weight to the October 2015 and March 2017 VA examiner's opinions, which were rendered following a thorough reviews of the claims file and are well supported by reasoned rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The evidence indicates that during the appeal period, the Veteran's lumbar spine disability manifested with pain and limitation of motion, however, does not show forward flexion of the thoracolumbar spine to be 30 degrees or less. At worst, forward flexion of the thoracolumbar spine was 50 degrees during the October 2015 and March 2017 VA examinations. Accordingly, a disability rating in excess of 20 percent for a lumbar spine disability at any point in the appeal period is not warranted.

The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture.

The range of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The October 2015 and March 2017 examination reports do not indicate any incapacitating flare-ups. The Veteran deferred repetitive motion testing.

After considering the effects of pain and functional loss, forward flexion of the thoracolumbar spine was not shown to be to be 30 degrees or less. Thus, a higher rating under 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the Veteran's disability picture for the entire appellate period.

In sum, the evidence does not show that a disability rating in excess of 20 percent for his spondylolisthesis at L5-S1 is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.

III. TDIU

A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a) (2017). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id.

When a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be warranted where the veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015).

The question of unemployability or the veteran's ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991).

Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned 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.

The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2017); Van Hoose, 4 Vet. App. 361(1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

From October 28, 2015, the Veteran has been granted TDIU. Prior to this date, the Veteran does not meet the minimum disability rating percentage threshold for consideration of schedular TDIU prior to October 28, 2015. 38 C.F.R. § 4.16(a). For example, the Veteran was service connected for spondylolisthesis L5-S1, which is rated 20 percent, and adjustment disorder with depressed mood associated with spondylolisthesis L5-S1, which was rated 30 percent prior to October 28, 2015. These issues present a combined rating of 40 percent from May 21, 2012 to October 27, 2015.

Thus, the Veteran does not have a disability rated at least 60 percent, nor does he have at least one disability rated at least 40 percent with an additional disability that creates a combined evaluation of at least 70 percent prior to October 28, 2015.

Nevertheless, when a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning, 4 Vet. App. 225.

In the Veteran's October 2014 hearing, the Veteran stated he stopped working in 2010.

During the Veteran's February 16, 2011 VA examination, the Veteran reported that he was no longer doing construction and that he owned his own construction business. 

A statement dated March 25, 2011 was received from the Veteran's primary care physician at the Asheville VAMC. The examiner opined that he Veteran is fully disabled as a result of his spondylolisthesis of the lumbar spine.

The Board assigns little probative value to the March 2011 statement, as the examiner does not explain what he means by "fully disabled," nor does he supply a rationale sufficient to explain this opinion. The examiner also does not indicate if he had reviewed the Veteran's claims file, and provides no examination results to explain his analysis.

In the Veteran's December 2012 mental health VA examination, the examiner stated that a mental condition has been formally diagnosed but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication, which is consistent with the Veteran's SSA disability application, as he did not include a psychiatric disorder as impacting his ability to work.

In records from the Social Security Administration, it shows that the Veteran reported that the disabilities that prevented him from working were heart disease, his back, and sleep apnea. In awarding the Veteran disability benefits, SSA found that the Veteran's primary disability was his heart disease, which it found was more severe than the Veteran's spondylolisthesis at L5-S1. In an SSA record, dated April 23, 2011, a medical opinion indicates that the Veteran should be limited from working at heights, and avoid working around chemicals, dust, heavy machinery and related environments. While the doctor did stipulate workplace limitations, he did not state the Veteran was unable to work.

Remaining VA and private treatment records do not support a finding that the Veteran is unemployable due solely to his service-connected disabilities. The Board finds that the record ultimately reflects the Veteran is capable of physical and sedentary employment, subject to limitations that are not outside the bounds of those adequately contemplated by schedular criteria. He has one year of college and was able to be a construction supervisor after he stopped doing the physical work of construction. Thus, the Veteran's past work experience does establish that he can do sedentary work. The Veteran's heart disease is not service connected (nor is sleep apnea). Based on the review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected spondylolisthesis at L5-S1 and psychiatric disorder (his only two service-connected disabilities) do not prevent him from obtaining and sustaining gainful employment.

In light of the foregoing, the Board finds the evidence to preponderate against a claim for a TDIU prior to October 28, 2015. As such, the benefit of the doubt doctrine is inapplicable, and the claim is denied. See Gilbert, 1 Vet. App. 49.


ORDER

Entitlement to an initial rating in excess of 30 percent for adjustment disorder with depressed mood prior to October 28, 2015, is denied.

Entitlement to an initial rating in excess of 50 percent for adjustment disorder with depressed mood from October 28, 2015, is denied.

Entitlement to a rating in excess of 20 percent for spondylolisthesis at L5-S1 is denied.

Entitlement to a TDIU rating prior to October 28, 2015 is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs