Citation Nr: 1803715	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  09-19 573	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial rating in excess of 20 percent for the service-connected recurrent lower back strain with degenerative disc disease (DDD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

J. Setter, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1967 to April 1970. 

This matter comes before the Board of Veterans' Appeals (the Board) from an August 2008 rating decision in which the RO granted service connection for PTSD and recurrent lower back strain with DDD and assigned 30 and 20 percent evaluations for the disabilities, respectively.  The effective date for the assigned ratings was January 22, 2007, the date the Veteran's claims for service connection were received.  

In May 2009, the RO assigned an increased rating of 50 percent for the service-connected PTSD effective January 22, 2007.  As higher schedular ratings for the PTSD are possible during the appeal period, this issue remains before the Board on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a video-conference hearing in February 2016; a transcript of the hearing is of record.

The Board remanded the issues on appeal for additional development in March 2016 and April 2017.  For the lower back issue, the directives have been substantially complied with, and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).  However, further development is necessary for the PTSD issue and it must be remanded again.  Id.

This appeal was originally certified to the Board with an additional issue:  entitlement to service connection for a gastro-intestinal disability.  However, the RO granted entitlement to service connection for pancreatitis in an October 2017 rating decision.  As such, the issue is no longer in appellate status before the Board.  Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997).

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (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). In this case, the Veteran has already been awarded TDIU in an April 2011 rating decision, effective from January 22, 2007, the earliest date of service connection for any of his service-connected disabilities.  Since no earlier consideration of TDIU is possible, it will not be considered here.

When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). 

However, the Veteran does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more, even when considering TDIU and temporary total ratings. 38 U.S.C. § 1114(s); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. §§ 3.350(i), 4.29, 4.30.  The Veteran has already applied for and been denied SMC aid and attendance in a January 2017 rating decision, and he has not appealed that decision to date.  There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time.

The issue of an increased rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

For the entire period on appeal, recurrent lower back strain with degenerative disc disease is manifested by forward flexion of the thoracolumbar spine more than 30 degrees; there was neither ankylosis nor incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, nor neurological manifestations not accounted for in other disabilities.


CONCLUSION OF LAW

The criteria for an increased rating in excess of 20 percent for recurrent lower back strain with degenerative disc disease for the entire period on appeal 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

II. Increased Schedular Rating

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. § 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 U.S.C. § 5107(b); 38 C.F.R. § 4.3.  

Staged ratings must be considered, 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).  See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings).  

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see also Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

The Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45 (2017).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2017).  The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Veteran is competent to provide evidence of observable symptoms, including pain.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  His statements have been consistent with the medical evidence of record, and are probative for resolving this appeal.

The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.  In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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.

Recurrent Lower Back Strain with Degenerative Disc Disease 

The Veteran is seeking an increased initial rating in excess of 20 percent for his service-connected recurrent lower back strain with degenerative disc disease.  

The Veteran's lower back disability is rated under Diagnostic Code 5242, covering degenerative arthritis of the spine, and Diagnostic Code 5243, covering intervertebral disc syndrome. 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.

Diagnostic Code 5243, intervertebral disc syndrome, is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine based on limitation of motion, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2017).  With respect to the diagnostic codes assigned for the service-connected disability, the first four digits, 5242, represent the diagnostic code for degenerative arthritis of the spine, and the second four digits represent the diagnostic code used to rate intervertebral disc syndrome.

According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height.  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.  A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a.  A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  

In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

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 combined normal range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2017).

The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes:

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id.  

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or 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 neurological symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis).  Id.  

The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS).  A 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A rating of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months.  Finally, a rating of 60 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  The criteria direct that intervertebral disc syndrome be evaluated either on the total duration of incapacitating episodes over the past 12 months or under either the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation.  The Board notes the Veteran's lower back disability is currently rated using range of motion rather than IVDS because the former results in a higher rating.

For purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment shall be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (2). 

Analysis

The Veteran underwent multiple VA examinations to assess the degree of disability presented by the service-connected lower back disability throughout the rating period.  These examinations are consistent with and representative of the degree of disability demonstrated in the treatment records during the same period.  In addition, the Veteran received regular, continuing treatment for the lower back condition and associated pain at VA medical facilities.

The Veteran received his initial VA examination in June 2008 following his original claim for his recurrent lower back strain.  During the VA examination the Veteran reported significant, daily low back pain. Physical examination showed significant lumbar spasm and paravertebral spasm. Forward flexion was reduced to 45 degrees. The Veteran was unable to perform three repetitions because of pain and spasm. The examiner noted that imaging studies confirm degenerative changes and degenerative disc disease of the lumbar spine. An MRI performed in May 2008 revealed disc degenerative diseases in the lower lumbar spine and greater in the L4-L5 level.  His gait was antalgic. The Veteran did not use crutch, cane or supportive devices. He had sensation intact. Straight leg raises were performed with difficulty and accentuate his pain at 25 degrees bilaterally but create no symptoms indicative of nerve root irritation and produced no sciatica symptoms. There were no fasciculations or atrophy.

The Veteran received another VA examination in June 2010 for his lower back disability.  The examiner diagnosed a lumbar straining injury with degenerative disc disease.  The Veteran reported constant dull aching and alternating sharp low back pain.  He reported no incapacitating episodes of back pain in the previous 12 months.  The Veteran also reported low back flare-ups weekly that could last up to three days, with increased pain and stiffness that could be aggravated by bending, twisting, lifting, and prolonged sitting.  The examiner reported a well-healed, 4-1/2 inch midline lumbar scar. There was flattening of the normal lumbar lordosis. There is no significant tenderness or spasm in the low back, scoliosis or other deformity. Range of motion of the thoracolumbar spine measured in the standing position with a goniometer with three repetitions each: forward flexion 0-40 degrees, with immediate pain grade 5/10. The Veteran also had extreme pain coming back up from the standing position and had guarding as well as catching and outward appearance of manifestation of pain including verbal as well as visual.  Extension was 0 degrees; the Veteran could not extend past neutral.  Left lateral flexion 0-10 degrees, with pain, grade 5/10.  Right lateral flexion 0-10 degrees, with constant pain grade 5/10.  The examiner recorded left lateral rotation 0-20 degrees on the left and right lateral rotation 0-10 degrees.  The Veteran had grade 5/10 with the rotation toward the right. Straight leg raising was negative except for increasing back pain on the right side at 45 degrees.  The examiner noted the Veteran clearly had guarding with any type of movement; he has difficulty getting up off of the examination table consistent with underlying back condition.  No ankylosis was present.

The Veteran received another VA examination for his lumbar back disability in September 2012.  Here, the Veteran reported he was in constant, dull pain on a daily basis, and was not able to neither sit or stand up for long periods, nor walk up and down the stairs without pain.  Range of motion testing was accomplished.  Forward flexion ended at 60 degrees (90 is normal), and painful motion was noted at that angle.  Extension ended at 20 degrees (30 is normal), and painful motion was noted at that angle.  Right and left lateral flexion each ended at 20 degrees (30 is normal).  Right and left lateral rotation each ended at 20 degrees (30 is normal).  The Veteran was unable to perform repetitive use testing due to painful motion.  Additional functional loss included weakened movement, incoordination, pain on movement, and interference with sitting, standing, or weight bearing.  Guarding and muscle spasm were present, but did not result in an abnormal gait or spinal contour.  Reflexes and muscle strength were normal, and no muscle atrophy was noted.  No ankylosis was noted. The examiner remarked that the Veteran did not have intervertebral disk syndrome, and no incapacitating episodes were noted.  Imaging studies were accomplished and degenerative disc disease in the lower spine was noted.

In June 2014, the Veteran received another VA examination for his lumbar back disability.  The examiner diagnosed lumbar and thoracic degenerative disc disease, status post laminectomy with fusion.  Range of motion testing was accomplished.  Forward flexion ended at 80 degrees (90 is normal), and no painful motion was noted at that angle.  Extension ended at 20 degrees (30 is normal), and painful motion was noted at that angle.  Right and left lateral flexion each ended at 25 degrees (30 is normal).  Right and left lateral rotation each ended at 25 degrees (30 is normal).  The Veteran was unable to perform repetitive use testing due to painful motion.  Additional functional loss included less movement than normal, weakened movement, and pain on movement.  Guarding and muscle spasm were present, but did not result in an abnormal gait or spinal contour.  Reflexes and muscle strength were normal, and no muscle atrophy was noted.  The examiner remarked that the Veteran did not have intervertebral disk syndrome, and no incapacitating episodes were noted.  Imaging studies were accomplished and degenerative disc disease in the lower spine was noted.  The Veteran was noted to be able to perform the activities of daily living, to include driving himself.

The Veteran received another VA examination in April 2016 for his lumbar back disability.  The examiner diagnosed a recurrent lower back strain with degenerative disc disease, and spondylolisthesis was added to the diagnosis in this examination.  The Veteran reported intermittent low back pain, with flare-ups, 1-2 times a month, that last up to 4-6 hours, that interfere with his daily activities, such as being unable to bend or lift due to pain.  The examiner was unable to evaluate range of motion because of the Veteran's recent surgery related to another disability not part of this claim.  The examiner remarked that the Veteran did not have intervertebral disk syndrome, and no incapacitating episodes were noted.  Imaging studies were accomplished and degenerative disc disease in the lower spine was noted.

The Veteran received a VA examination for his lumbar back disability in July 2017.  The examiner noted the Veteran had disc herniation at L5-S1, with degenerative changes at L4-L5 and L5-S1.  This examiner also noted bilateral midthoracic radiculopathies, since service-connected in a separate October 2017 rating decision.  The Veteran reported he had no flare-ups from his lumbar back disability.  Range of motion testing was accomplished.  Forward flexion ended at 70 degrees (90 is normal), and no painful motion was noted at that angle.  Extension ended at 20 degrees (30 is normal), and painful motion was noted at that angle.  Right and left lateral flexion each ended at 20 degrees (30 is normal).  Right and left lateral rotation each ended at 30 degrees (30 is normal).  The Veteran was able to perform repetitive use testing.  After 3 repetitions, with pain noted as the cause for functional loss, forward flexion was measured at 50 degrees, extension was measured at 10 degrees, right lateral flexion was measured at 15 degrees, left lateral flexion was 10 degrees, right lateral rotation was 30 degrees, and left lateral rotation was 30 degrees. An October 2017 addendum noted that there was no pain on passive range of motion.  Additional functional loss included less movement than normal, weakened movement, and pain on movement.  No guarding and muscle spasm were present.  Reflexes and muscle strength were normal, and no muscle atrophy was noted.  No ankylosis was noted. The examiner remarked that the Veteran did have intervertebral disk syndrome, and no incapacitating episodes were noted in the previous 12 months.

For the entire period on appeal, the relevant VA rating criteria are met as to a rating of 20 percent, but no higher.  That is, the rating schedule requires forward flexion of the thoracolumbar spine greater than 30 degrees up to 60 degrees; or, muscular spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour.  In addition, the combined range of motion in all examinations is greater than 120 degrees but not greater than 235 degrees, and painful motion was noted on each examination.  Specifically, the 2008, 2010, 2012 and 2017 VA spine examinations affirmatively reflect findings of forward flexion in excess of 30 degrees but less than 60 degrees.  The June 2014 examination did record an initial range of motion of 80 degrees of forward flexion but the full testing was incomplete because of pain on repetitive motion, and thus the Board finds that examination's range of motion results to be less probative because the full testing could not be completed.  The Board notes that repetitive motion testing for all examinations where it was measured showed forward flexion less than 60 degrees but not less than 30 degrees.  Combined range of motion of the lumbar spine was greater than 120 degrees but not greater than 235 degrees.  In all examinations, pain on motion was noted, no ankylosis was noted, and in no examination was guarding or muscle spasm noted such that it resulted in an abnormal gait of abnormal spine contour.

A rating in excess of 20 percent is not warranted in this case because the evidence does not show favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine 30 degrees or less.  No lumbar spine examination indicated the presence of ankylosis or a range of motion for forward flexion less than 30 degrees.

Additionally, while a back disability may be rated under the IVDS criteria at 38 C.F.R. § 4.71a (2015), the Veteran's back disability does not warrant a rating under this criteria.  The medical records do not show and the Veteran does not allege any incapacitating episodes due to IVDS as defined in the criteria described earlier.  The Veteran does report that he rests himself when necessary for symptomatic pain but the record does not reflect that any physician prescribed bedrest, and no examination noted periods of incapacitation as described in the criteria.  Therefore, an alternative rating under the IVDS criteria is not supported by the record. 

Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 20 percent for recurrent lower back strain with degenerative disc disease.  See 38 C.F.R. § 4.71(a), Diagnostic Codes 5242, 5243 (2017); see also 38 U.S.C. § 5107 (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's recurrent lower back strain disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted, as noted in the discussion above.  See Hart, 21 Vet. App. at 505. Neither the Veteran nor his representative has raised any other issues concerning the lumbar spine disability, nor have any other issues been reasonably raised by the record.  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).  


ORDER

Entitlement to an increased initial rating in excess of 20 percent for recurrent lower back strain with degenerative disc disease is denied.


REMAND

The Veteran is seeking an increased initial rating for his service-connected PTSD, currently rated at 50 percent disabling.  During the February 2016 hearing, the Veteran asserted that he has experienced a worsening of the symptoms (increased sleep impairment, nightmares and lots of trouble maintaining effective social relationships, specifically familial relationships) related to his service-connected PTSD.  He was last afforded VA examination addressing this service-connected disability in April 2016.  The Veteran also testified that he has continued to participate in PTSD therapy treatment.  Recent VA treatment notes for other medical conditions for which the Veteran is being treated indicate his psychological outlook is worsening.  Under the circumstances, the Board finds that current VA examination is necessary for the purpose of ascertaining the current severity of the service-connected PTSD.  VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 

Accordingly, the case is REMANDED for the following action:

1.  After obtaining any necessary releases, obtain any outstanding VA and private treatment records pertaining to the Veteran's service-connected PTSD.

2.  Then, schedule the Veteran for a VA examination to assess the current severity of his service-connected PTSD.  The claims folder should be made available to and reviewed by the examiner in connection with the examination.  The examiner should identify all current manifestations of the service-connected PTSD.  The examiner should also provide an opinion concerning the current degree of social and occupational impairment resulting from the service-connected PTSD.  A full rationale must be provided for all stated medical opinions.  If the examiner is not able to provide an opinion, he or she should explain why.

3.  When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence.  If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).




______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs