Citation Nr: 1802908	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  13-35 841	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent, prior to March 16, 2017, and a rating in excess of 20 percent from March 16, 2017, for a back disability.

2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

3. Entitlement to service connection for bilateral lower extremity sciatica, to include as secondary to service-connected back disability. 

4. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU). 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from September 2006 to January 2011.

This matter comes to the Board of Veteran's Appeals (Board) on appeal from an October 2012 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). During the course of the appeal, the Veteran has asserted that he is no longer able to work due to his service-connected back disability.  The issue of TDIU has been raised by the record.

The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1. From March 9, 2012, to March 16, 2017, the Veteran's low black disability has been manifest by flexion greater than 60 degrees, with a combined range of motion greater than 120 degrees but not greater than 235 degrees, with pain on motion, without additional functional loss, with no ankylosis. 

2. From March 16, 2017, the Veteran's low back disability has been manifest by flexion limited to at worst, 60 degrees, with pain on motion, without additional functional loss, or ankylosis.

3. The Veteran's PTSD symptoms have more nearly approximated occupational and social impairment with reduced reliability and productivity. 

4. The Veteran is not shown to have bilateral lower extremity sciatica.


CONCLUSIONS OF LAW

1. Prior to March 16, 2017, the criteria for a rating in excess of 10 percent for a low back disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).

2. From March 16, 2017, the criteria for a rating in excess of 20 percent for a low back disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

3. The criteria for a rating in excess of 30 percent rating for PTSD, but not higher than 50 percent, have been met or approximated.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).

4. The criteria for service connection for bilateral lower extremity sciatica have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has considered the Veteran's claims and decided entitlement based on the evidence or record.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

I. Governing Law

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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7 (2017).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-10   (2007); Fenderson v. West, 12 Vet. App. 119, 126-127 (2001).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Similarly, where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

II. Disability evaluation for the back

The Veteran contends that he is entitled to an initial rating in excess of 10 percent prior to March 16, 2012, and a rating in excess of 20 percent from March 16, 2012, for his low back disability. The preponderance of the evidence is against finding that an increased rating is warranted.  

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Consideration must also be given to weakened movement, excess fatigability and incoordination.  38 C.F.R. § 4.45.

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 the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's low back disability is rated under Diagnostic Code 5237, covering lumbosacral strains.  All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion.  38 C.F.R. § 4.71a, General Formula.  Under the General Formula, the spine is evaluated 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.  Id.

Under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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.  Id.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  Id. 

Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code.  38 C.F.R. § 4.71a, General Formula, Note 1.  

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.  Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id.

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching.  Id. at Note 5.  Fixation of a spinal segment in neutral position always represents favorable ankylosis.  Id.

At an October 2012 VA examination, the Veteran reported the he had constant aching pain in his back that became worse with activity. He stated this back pain started approximately a month prior to separation from active service. He reported flare-ups that preventing him from lifting and caused trouble bending.  At this examination, the Veteran was diagnosed with partial disc desiccation, mild annular bulging, and possible small right paracentral annual fissure at L5-S1. On objective examination, the examiner noted the Veteran to have forward flexion to 90 degrees or greater with pain at 70 degrees, extension to 30 degrees, bilateral flexion to 30 degrees or greater, bilateral rotation to 30 degrees or greater, and bilateral flexion to 30 degrees or greater. Pain was noted to be present during testing. However, no further loss of function was noted to be present after repetitive testing. No ankylosis of the spine was noted. No radiculopathy, IVDS, or incapacitating episodes were noted.

At a January 2014 VA examination, the Veteran denied bowel or bladder impairment and incapacitating episodes.  At this examination, the Veteran was diagnosed with lumbar disc bulging with chronic strain. On objective examination the examiner noted the Veteran to have forward flexion to 80 degrees, extension to 25 degrees, bilateral flexion to 30 degrees or greater, right rotation to 30 degrees or greater, left rotation to 25 degrees, with no objective evidence of painful motion. No further loss of function was noted to be present after repetitive testing. No ankylosis of the spine was noted. No radiculopathy, IVDS, or incapacitating episodes were noted. 

At a March 2017 VA examination, the Veteran reported pain, needing the use of a cane and brace, and flare-ups on an almost daily basis. The Veteran denied bowel or bladder impairment and incapacitating episodes.  At this examination, the Veteran was diagnosed with degenerative arthritis of the spine with chronic lumbar strain. On objective examination the examiner noted the Veteran to have forward flexion to 60 degrees, extension to 20 degrees, bilateral flexion to 25 degrees, and bilateral lateral rotation to 25 degrees. Pain was noted to be present during testing. However, no further loss of function was noted to be present after repetitive testing. No ankylosis of the spine and no evidence of pain with weight bearing was noted upon examination. No radiculopathy, IVDS, or incapacitating episodes were noted. Mild to moderate lumbar paravertebral muscle tenderness was noted. 

Treatment records from this period reflect on-going treatment for a low back disability and routine complaints of low back pain. However, the treatment records contain limited evidence regarding range of motion. Rather, a February 2016 VA treatment record indicates the Veteran has "good range of motion" with no increase in leg pain, but some soreness in his low back generally. The examiner noted a radial tear of L5-S1 disc, and pain in low back at 30 degrees. 

Based on the foregoing competent and credible lay and medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent prior to March 16, 2017, and a rating in excess of 20 percent from March 16, 2017 is warranted.  The lay reports of chronic back pain and interference with daily activities during this period are credible. 

However, there is no evidence showing that between March 9, 2012, and March 16, 2017, the Veteran's low back disability, even when taking into account the presence of pain and other factors, was manifested by limitation of motion to greater than 30 degrees but not greater than 60 degrees; or the combined range of motion greater than 120 degrees. As such, the preponderance of the evidence is against finding that a rating in excess of 10 percent is warranted. Accordingly, the claim for entitlement to a rating in excess of 10 percent from March 9, 2012, to March 16, 2017, for a back disability must be denied. 

Further, there is no evidence showing that since March 16, 2017, the Veteran's low back disability, even when taking into account the presence of pain and other factors, was manifested by limitation of motion to less than 30 degrees in forward flexion.  As such, the preponderance of the evidence is against a finding that a rating in excess of 20 percent is warranted. Accordingly, the claim for entitlement to a rating in excess of 20 percent from March 16, 2017 for a back disability must be denied. 

The Board notes that the additional limitation the Veteran experiences due to pain and other factors on repetition was accounted for by the VA examiners when determining the Veteran's range of motion. There is no other evidence showing that the Veteran has more limitation of motion than that found at the VA examinations. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning ratings in excess of 10 percent prior to March 16, 2017, or 20 percent from March 16, 2017, for functional impairment of the lower back. 

Consideration has been given to assigning a rating for IVDS based on incapacitating episodes rather than limitation of motion. The evidence of record consistently documents the fact that the Veteran does not have a diagnosis of IVDS. As such, a rating for incapacitating episodes is not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

The Board has also considered whether the Veteran should be awarded separate compensable ratings for any neurological impairment associated with the low back disability. However, at no time during the appellate period does the Board find a basis for assigning separate compensable ratings for neurological impairment.

III. Disability Evaluation of PTSD

The Veteran contends that he is entitled to a disability rating in excess of 30 percent for his service-connected PTSD. The Board finds that the evidence is in relative equipoise for a finding that an increased rating, to a 50 percent disability rating, is warranted.  

Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders (General Rating Formula).  PTSD is rated under 38 C.F.R. § 4.130, 
The General Rating Formula for Mental Disorders under VA's rating schedule provides for a 30 percent rating when the psychiatric disorder results in 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, Code 9411 (2017).

A 50 percent rating is warranted when the psychiatric disorder results in 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.

A 70 percent disability rating is in order 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 work like setting); inability to establish and maintain effective relationships.  Id.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27(Fed. Cir. 2004).  Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall 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 the examination. Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  38 C.F.R. § 4.126(b).

In August 2014, the Veteran was afforded a VA examination. At this time, he reported that he had been scared and depressed, and had been treating his symptomatology with medications. He reported nightmares related to his in-service stressors, problems with crowds, avoidance of military related events on television, anxiety, occasional panic attacks, low mood, low energy, self-seclusion tendencies, and opioid abuse. He reported being single, with no children, an older brother with whom he had a good relationship, living with his father, and a high school education. He reported mental health treatment, and that his medication helped with his anxiety and mood issues. He denied suicidal or homicidal ideation.

On psychological examination, the Veteran was noted to have recurrent, involuntary, and intrusive distressing memories of the traumatic event, with recurrent distressing dreams, and marked physiological reactions to internal or external cues related to that event. He was observed to exhibit avoidance behaviors, markedly diminished interest in activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior, angry outbursts, exaggerated startle response, problems with concentration, and sleep disturbances. It was noted that the duration of the disturbances were greater than one month, and caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran was noted to have depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. He was observed to be well oriented, calm, not tearful, no delusions or hallucinations, and no intoxication or withdrawal symptoms, with appropriate memory, insight, and judgment. The examiner opined 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, or; symptoms controlled by medication. Also, the examiner opined that the Veteran's causes clinically significant distress or impairment in social, occupational, or other important areas of function, which is not attributable to the physiological effects of a substance or another medical condition. 

In May 2015, the Veteran was afforded another VA examination. At that time, he reported that he continued to have anxiety related to planes, continued to have dreams and nightmares related to the incident, panic attacks, sleeping approximately 4 to 5 hours a night, depression, loss of interest in activities and hobbies, and that he continued counseling and maintained his mental medication. He denied suicidal ideation, and acknowledged an opioid dependence. He reported being single, living with his father, that he liked to watch sports on TV, and that he wanted to move out and live independently. He reported mood problems, social anxiety, depression, and that he was continuing medication and counselling. The Veteran stated he had been working odd jobs, which included some lawn mowing and construction work, and miscellaneous seasonal jobs. He reported having a high school education, with some vocational training. 

On psychological examination, the Veteran was noted to have recurrent, involuntary, and intrusive distressing memories of the traumatic event, with recurrent distressing dreams, and marked physiological reactions to internal or external cues related to that event. He was observed to exhibit avoidance behaviors, markedly diminished interest in activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior, angry outbursts, exaggerated startle response, problems with concentration, and sleep disturbances. It was noted that the duration of the disturbances were greater than one month, and caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran was noted to have depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. He was observed to be polite, initially nervous, fidgety, with age appropriate memory, insight, and judgment.

VA treatment records indicate that the Veteran was routinely treated from January 2013 to July 2017 for his PTSD. As with any mental health treatment, the Veteran reported fluctuations of mood and symptomatology during this time. However, the Veteran was generally observed to have coherent speech, normal articulation, normal volume, appropriate language, appropriate attention and concentration, with logical and linear thought processes, and no hallucinations. The Veteran always denied having suicidal or homicidal ideations, plans, or intent. The Veteran was always observed to be well groomed, cooperative, interactive, and with fair judgment. He routinely reported regular contact with family members, to include his parents and his brother. He reported impairment of short term memory, and disturbances of mood and motivation, specifically a lack of motivation for recreational activities that he had previously enjoyed.

July 2017 VA treatment records indicate that the Veteran reported he was clean and sober, that he continued to comply with his mental health medications, and that he experienced panic attacks at least 3 to 4 times a week. He reported that his anxiety when in public resulted in avoidance of being in public completely. He reported improvement in his sleep quality, but that he needed to nap during the day. With regards to work, the Veteran reported that working would be difficult at the time due to the early stages of sobriety in combination with his PTSD symptomatology. He reported moderate experiences of unwanted memories of the stressful experience, a little bit of disturbing dreams, quite a bit of sudden feelings or acting as if the stressful experience was occurring, quite a bit of feeling upset when something reminded him of the stressful experience, extreme amount of having strong physical reactions when something reminded him of the stressful experience, quite a bit of avoidance symptomatology, a little bit of memory issues, a little bit of strong negative beliefs about himself, others, or the world, moderate amount of blame for the experiences, moderate amount of strong negative feelings, extreme amount of loss of interest in activities, and moderate feelings of distance from others. He further reported either a quite a bit or extreme amounts of the following: trouble experiencing positive feelings, irritable behavior, angry outbursts, aggressiveness, risk seeking behavior, hypervigilance, difficult concentrating, and trouble with sleep. He stated these issues made it extremely difficult to do work, take care of things at home, or get along with others. 

The Veteran was observed to have euthymic mood, congruent affect, coherent speech that is articulate, spontaneous, and an appropriate rate, with appropriate language, and appropriate attention span and concentration. He was noted to have logical and linear thoughts, with intact cognition and abstract reasoning. There was no evidence of auditory or visual hallucinations, with remote and recent memory intact, and good insight and judgment. He denied homicidal and suicidal ideation at this time. 

For the entire period on appeal, the Board finds that a rating of 50 percent for the Veteran's PTSD is warranted. The Board notes that the Veteran has demonstrated such symptoms as: regular panic attacks, impairment of short term memory, and disturbances of mood, lack of motivation.  The Board finds that the frequency, severity, and duration of the Veteran's symptomatology are akin to the criteria of a 50 percent rating and more nearly approximate occupational and social impairment, with reduced reliability and productivity. 38 C.F.R. § 4.130, Diagnostic Code 9411. 

However, the Board finds that the frequency, severity, and duration of the Veteran's symptomatology do not more nearly approximate those of the 70 percent rating criteria.  In that regard, at all times within the appeal period, the Veteran is noted to be appropriately well dressed and well-oriented to time and place, and able to maintain personal hygiene, with appropriate affect, normal and appropriate speech, and has the ability to manage his own finances. The Board notes that the Veteran does not suffer from suicidal ideation, obsessional rituals, or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. Further, the Veteran is not shown to have impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. Although the Board notes that the Veteran's symptoms are significant, the Board finds that they do not result in occupational and social impairment with deficiency in most areas. The Veteran maintains odd jobs with his high school education, while continuing treatment and counselling for both his PTSD and addiction. Moreover, in considering the evidence of record, noted above, the frequency, severity and duration of the Veteran's symptoms do not more nearly approximate the criteria for a disability rating in excess of 50 percent.  

Hence, the Board finds that a rating in excess of 30 percent, but not higher than 50 percent, for PTSD is warranted because occupational and social impairment with reduced reliability is shown. 38 C.F.R. § 4.130, Diagnostic Code 9411.  Again, weighing the evidence of record, lay and medical, the Board finds that the Veteran's PTSD symptomatology and the effects, related thereto, more nearly approximates the schedular criteria for a 50 percent rating under Diagnostic Code 9411. 

IV. Service connection for bilateral lower extremity sciatica

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relation i.e. a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C. § 1131; Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997).  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992).

The Veteran contends that he is entitled to service connection for bilateral lower extremity sciatica, as secondary to his service-connected back.  However, the Board finds that service connection for bilateral lower extremity sciatica is not warranted.
Here, the record has no indication that the Veteran has a diagnosis for, or treatment of, any lower extremity condition, to include sciatica. Furthermore, the evidence of record does not show the Veteran has complained of any lower extremity condition, to include sciatica in his service treatment records, VA treatment records, or any other post-service treatment. Thus, the Board concludes that the Veteran does not have a current diagnosis of bilateral lower extremity sciatica, and the claim must be denied.  


ORDER

A rating in excess of 10 percent from March 9, 2012 to March 16, 2017, for a lower back disability is denied.

A rating in excess of 20 percent from March 16, 2017, for a lower back disability is denied.

A rating in excess of 30 percent, but not higher than 50 percent, for PTSD is granted.

Entitlement to service connection for bilateral lower extremity sciatica is denied.


REMAND

The Board finds that there is evidence of record that suggests that the Veteran was unemployable during the appeal period. In this regard, the Board notes that the Veteran had multiple periods of unemployment during the above appeal period.  The Board construes the evidence of record as raising the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability); see also Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999). 

The Board notes that the issue of TDIU has not been adjudicated in the first instance by the AOJ. Cf. Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (noting that "the Board's action on appeal in proceeding to decide a question that the AOJ had not decided raises the possibility that a claimant will be prejudiced by not having been afforded the full benefits of the[] procedural safeguards"). Consequently, the Board will remand the issue for adjudication by the AOJ in the first instance, which will allow the AOJ to conduct any necessary development, including requesting that the Veteran complete a VA Form 21-8940, Application for Increased Compensation based on Unemployability.

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with 38 U.S.C. § 5103(a) notice as to a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he complete and return the form.

2.  After undertaking any appropriate development, adjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case.  An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review.

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

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



______________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs