Citation Nr: 1805412	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  11-26 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to an effective date earlier than December 7, 2011, for the grant of service connection for mood and unspecified depressive disorders.

2. Entitlement to an effective date earlier than May 18, 2010, for the grant of service connection for cervical spine radiculopathy of the left upper extremity.

3. Entitlement to an effective date earlier than May 18, 2010, for the grant of service connection for cervical spine osteoarthritis, degenerative disc disease, and intervertebral disc syndrome.

4. Entitlement to an evaluation in excess of 40 percent since April 1, 2013, for chronic lumbosacral strain with spondylosis of L5, to include osteoarthritis and degenerative disc disease.

5. Entitlement to an initial disability evaluation in excess of 10 percent since May 18, 2010, for cervical spine osteoarthritis, degenerative disc disease, and intervertebral disc syndrome.

6. Entitlement to an initial disability evaluation in excess of 40 percent since September 28, 2009, for left leg radiculitis and left lower extremity radiculopathy (sciatica).

7. Entitlement to an initial disability evaluation in excess of 20 percent since May 18, 2010, for cervical spine radiculopathy of the left upper extremities.

8. Entitlement to an initial disability evaluation in excess of 50 percent since December 7, 2011, for mood and unspecified depressive disorders.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1983 to March 1986.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Veteran initially requested a Travel Board hearing in his December 2012 Substantive Appeal (VA Forms 9). In a March 2013 statement submitted by his representative, the Veteran withdrew this hearing request in writing. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (e) (2017).

During the pendency of the appeal, a September 2015 rating decision granted service connection for mood and unspecified depressive disorders; left leg radiculitis and left lower extremity radiculopathy (sciatica); cervical spine radiculopathy of the left upper extremities; and cervical spine osteoarthritis (OA), degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS). 

In September 2017, the RO granted an earlier effective date for service connection for left leg radiculitis and left lower extremity radiculopathy (sciatica), as noted on the title page, and increased the rating for the Veteran's lumbosacral strain with spondylosis, now to include OA and DDD, to 40 percent effective April 1, 2013. Since this evaluation is not the maximum available benefit and the claimant has not withdrawn the appeal, the issue remains in appeal status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

Effective September 28, 2009, the Veteran is in receipt of a 100 percent schedular evaluation for individual unemployability based on the Veteran's lumbosacral and lower extremity radiculopathy disabilities, and separate grants of special monthly compensation on various bases.

The procedural histories of these claims have been thoroughly set forth in the August 2014 and August 2015 Board remands. 

Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. 





FINDINGS OF FACT

1. The Veteran filed a claim for entitlement to service connection for depression on December 7, 2011; the claim was ultimately granted as mood and unspecified depressive disorders, and the effective date is set to this date of claim. 

2. The Veteran filed a claim for entitlement to service connection for nerve damage in his neck on May 18, 2010; the claim was ultimately granted as cervical spine radiculopathy of the left upper extremities, and the effective date is set to this date of claim. 

3. The Veteran filed a claim for entitlement to service connection for degenerative disc disease on May 18, 2010; the claim was ultimately granted as cervical spine OA, DDD and IVDS, and the effective date is set to this date of claim. 

4. The Veteran's lumbar strain with spondylosis, to include OA, and DDD, manifested with no more than constant pain, flare-ups, tenderness, weakness, instability, IVDS, but with no ankylosis.

5. The Veteran's cervical spine OA, DDD and IVDS manifested with no more than pain, fatigue, weakness, lack of endurance, IVDS, and forward flexion to 40 degrees, but with no muscle spasms, guarding, localized tenderness or ankylosis.

6. The Veteran's left leg radiculitis and left lower extremity radiculopathy (sciatica) manifested as no more than moderately severe incomplete paralysis.

7. The Veteran's cervical radiculopathy of the left upper extremities manifested as no more than mild incomplete paralysis.

8. The Veteran's mood and unspecified depressive disorders manifested as no more than panic attacks, impaired judgment, disturbances of mood, chronic sleep impairment, and isolation.


CONCLUSIONS OF LAW

1. The criteria for an effective date prior to December 7, 2011, for the award of service connection for mood and unspecified depressive disorders have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2017).

2. The criteria for an effective date prior to May 18, 2010, for the award of service connection for cervical spine radiculopathy of the left upper extremities have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2017).

3. The criteria for an effective date prior to May 18, 2010, for the award of service connection for cervical spine osteoarthritis, degenerative disc disease, and intervertebral disc syndrome have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2017).

4. The criteria for a rating in excess of 40 percent since April 1, 2013, for chronic lumbosacral strain with spondylosis of L5, to include osteoarthritis and degenerative disc disease, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.71a, Diagnostic Code (DC) 5242 (2017).  

5. The criteria for a disability rating in excess of 10 percent since May 18, 2010, for cervical spine osteoarthritis, degenerative disc disease and intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.71a, DC 5242 (2017). 

6. The criteria for a disability rating in excess of 40 percent since September 28, 2009, for left leg radiculitis and left lower radiculopathy (sciatica) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.124a, DC 8620 (2017). 

7. The criteria for a disability rating in excess of 20 percent since May 18, 2010, for cervical spine radiculopathy of the left upper extremities have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.124a, DC 8512 (2017). 

8. The criteria for a disability rating in excess of 50 percent since December 7, 2011, for a mood disorder and unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.130, DC 9434 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Earlier Effective Date

The Veteran contends he is entitled to earlier effective dates for his mood and unspecified depressive disorders; cervical radiculopathy of his left upper extremities; and cervical OA, DDD and IVDS. 

The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400.

As the Veteran did not submit the claims within one year of discharge from service, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

The Veteran's claims for earlier effective dates for his mood and unspecified depressive disorders, cervical radiculopathy, and cervical OA, DDD and IVDS are denied. The evidence indicates the RO received informal claims for depression as secondary to his service-connected lumbosacral strain disability on December 7, 2011, and for nerve damage and degenerative disc disease on May 18, 2010. As a matter of law, December 7, 2011, is the date of claim for entitlement to service connection for mood and unspecified depressive disorders, and May 18, 2010, is the date of claim for entitlement to service connection for cervical radiculopathy and entitlement to service connection for cervical OA, DDD and IVDS. These dates are the earliest possible effective dates for service connection allowed by law in this case. See 38 C.F.R. § 3.400. 

VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Increased Ratings

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A. Lumbar and cervical disabilities 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.  

Provision 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).

All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Osteoarthritis and degenerative disc disease of the lumbar and cervical spines are to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. 

Under the General Rating Formula for the Musculoskeletal System, the Veteran's lumbosacral strain with spondylosis, OA, and DDD has been evaluated as 40 percent disabling since April 1, 2013, and his cervical OA, DDD and IVDS have been evaluated as 10 percent disabling since May 18, 2010. See 38 C.F.R. § 4.71a, DC 5242.

Under the General Rating Formula, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 

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 normal combined range of motion of the thoracolumbar spine is 240 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). 

Under the General Rating Formula, a 10 percent rating is warranted when forward flexion of the cervical spine is greater than 30 degrees but less than 45 degrees; or combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or 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 height. A 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). 

The Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating 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 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R.       § 4.71a, DC 5243 (2016). An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).

Chronic lumbosacral strain with spondylosis of L5, 
to include OA and DDD, since April 1, 2013

VA treatment records indicate the Veteran complained of low back pain. March 2014 lumbar MRI findings demonstrated no changes to the lumbar spine since the October 2010 x-rays. 

At the February 2015 VA medical examination, the Veteran reported flare-ups and more than moderate pain. He also reported a recent injury to his left tibia, which prohibited him from performing range of motion and weight-bearing tests. The examiner noted the Veteran's lumbar spine demonstrated muscle spasms and localized tenderness resulting in an abnormal gait or abnormal spinal contour, but that it did not demonstrate ankylosis. The Veteran's spine also demonstrated IVDS, but without any incapacitating episodes within the past 12 months. The examiner noted the Veteran's scar for his lumbar fusion surgery was not unstable or painful. 

April 2015 VA treatment records indicate the Veteran attended a VA chiropractic clinic for low back and neck pain relief. 

At the March 2017 VA medical examination, the Veteran reported pain and poor balance. The Veteran was unable to perform active range of motion and weight-bearing tests. The Veteran's lumbar spine demonstrated muscle spasms that did not result in an abnormal gait or abnormal spinal contour, but did not demonstrate ankylosis. The examiner noted additional factors contributing to the Veteran's disability included less movement than normal, instability, disturbance of locomotion, and interference with standing. The Veteran's spine demonstrated IVDS, but without any incapacitating episodes within the past 12 months. The Veteran's scar remained stable. The examiner noted that passive assessments of range of motion and weight-bearing tests demonstrated an antalgic gait, and that the Veteran demonstrated painful motion that caused functional limitations. The examiner opined that the Veteran's lumbar osteoarthritis and degenerative disc disease are natural progressions of the Veteran's lumbar strain and spondylosis. 

During the period on appeal, the Veteran's lumbar strain with spondylosis, OA, and DDD, manifested with no more than constant pain, flare-ups, tenderness, weakness, instability, IVDS, but with no ankylosis. A rating of 50 percent is not warranted because the Veteran's lumbar spine did not demonstrate unfavorable ankylosis. 

Given these facts, the Board finds that a 40 percent rating since April 1, 2013, adequately reflects the Veteran's lumbar disability during the relevant period. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).

Cervical spine OA, DDD and IVDS since May 18, 2010

VA treatment records indicate the Veteran complained of neck pain and a July 2013 cervical MRI findings show disc space narrowing with degenerative changes. July 2014 cervical MRI findings show disc spacing slightly reduced with degenerative changes. 

At the February 2015 VA medical examination, the examiner diagnosed the Veteran with cervical osteoarthritis and degenerative disc disease, noting that 2013 imaging studies confirmed the diagnoses. The Veteran's cervical spine's range of motion (ROM) demonstrated as forward flexion to 45 degrees, extension to 45 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 40 degrees, all with pain. The examiner noted the abnormal ROM contributed to functional loss because the inability to turn side to side restricted the Veteran's field of vision. After repetitive testing, the Veteran's cervical spine demonstrated additional ROM loss caused by pain, fatigue, weakness, and lack of endurance, resulting in forward flexion to 40 degrees, extension to 35 degrees, right lateral flexion to 30 degrees, left lateral flexion to 40 degrees, and bilateral lateral rotation to 40 degrees. The Veteran's cervical spine did not demonstrate muscle spasm, guarding, tenderness, or ankylosis. The cervical spine demonstrated IVDS, but without any incapacitating episodes within the last 12 months. 

April 2015 VA treatment records indicate the Veteran attended a VA chiropractic clinic for neck and low back pain relief. 

During the period on appeal, the Veteran's cervical spine OA, DDD and IVDS manifested with no more than pain, fatigue, weakness, lack of endurance, IVDS, and forward flexion to 40 degrees, with no muscle spasms, guarding, localized tenderness or ankylosis. The Veteran's cervical spine did not demonstrate forward flexion less than 30 degrees, or a combined range of motion less than 170 degrees, or muscle spasms, guarding or localized tenderness resulting in an abnormal gait or spinal contour.

Given these facts, the Board finds that a 10 percent rating since May 18, 2010, adequately reflects the Veteran's cervical spine disabilities during the relevant period. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).

B. Radiculopathy of the upper and lower extremities

Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. 
§ 4.124a. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. 38 C.F.R. § 4.124a.

The Veteran's cervical radiculopathy of the left upper extremities is rated 20 percent disabling under DC 8512 for paralysis of the lower radicular group. Under DC 8512, with respect to the minor extremity, a 20 percent rating is assigned when there is mild incomplete paralysis, a 30 percent rating when there is moderate incomplete paralysis, a 40 percent rating when there is severe incomplete paralysis, and a 60 percent rating when there is complete paralysis marked by paralysis of all intrinsic muscles of hands, and some or all of flexors of wrist and finders, paralyzed (substantial loss of hand use).

The Veteran's left leg radiculitis and left lower extremity radiculopathy disability is rated 40 percent for neuritis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8620.  Under DC 8620, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; and a 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. Terms such as "mild," "moderate" and "moderately severe" are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is "equitable and just."  See 38 C.F.R. § 4.6.

Cervical radiculopathy of the left upper extremities since May 18, 2010

VA treatment records indicate the Veteran complained of muscle spasms in his hands. In 2013 he was assessed with ulnar neuropathy in his elbow.  

At the February 2015 VA medical examination, the Veteran's left (minor) upper extremities demonstrated mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner diagnosed the Veteran with mild incomplete paralysis of the left upper extremities.

During the period on appeal, the Veteran's cervical radiculopathy of the left upper extremities manifested as no more than mild incomplete paralysis. The Veteran's disability did not demonstrate symptoms of moderate incomplete paralysis. 

Given these facts, the Board finds that a 20 percent rating since May 18, 2010, adequately reflects the Veteran's cervical radiculopathy of the left upper extremities during the relevant period.  38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Left leg radiculitis and left lower extremity radiculopathy since September 28, 2009

VA treatment records indicate the Veteran complained of muscle spasms in his lower extremities, lack of balance, pain and numbness. In November 2014, the Veteran fell after having severe sciatica pain, and was told not to bear weight on his lower left extremity for at least three months.  

At the February 2015 VA medical examination, the Veteran demonstrate mild intermittent right lower extremity pain, and moderate intermittent left lower extremity pain, paresthesias and/or dysesthesias, and numbness. The examiner diagnosed the Veteran with moderate incomplete paralysis of the sciatic nerves. 

During the period on appeal, the Veteran's left leg radiculitis and left lower extremity radiculopathy manifested as no more than moderately severe incomplete paralysis. The Veteran's disability did not demonstrate symptoms of severe incomplete paralysis with marked muscular atrophy.

Given these facts, the Board finds that a 40 percent rating since September 28, 2009, adequately reflects the Veteran's left leg radiculitis and left lower extremity radiculopathy during the relevant period.  38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

C. Mood disorder and unspecified depressive disorder 

The Veteran's mood and unspecified depressive disorders have been evaluated under 38 C.F.R. § 4.130 as 50 percent disabling since December 7, 2011, under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R.           § 4.130, DC 9434. 

The General Rating Formula for Mental Disorders is as follows:

A 100 percent rating is assigned for 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.

A 70 percent rating is assigned for 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.

A 50 percent rating is assigned for 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. 

A 30 percent rating is assigned for 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 and mild memory loss (such as forgetting names, directions, recent events).

A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A noncompensable rating is assigned for a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

38 C.F.R. § 4.130 (2017).

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a claimant has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the claimant's symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See id.

The Veteran's records include evaluations based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes Global Assessment Functioning (GAF) scores. GAF scores are based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." DSM-IV; see Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). 

According to DSM-IV, a score of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." A score of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." Id. The Court has found that certain scores may demonstrate a specific level of impairment. See Richard, 9 Vet. App. at 267; see also Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (observing that a GAF score of 50 indicates serious impairment).

Although a medical professional's classification of the level of psychiatric impairment reflected in the assigned GAF score is probative evidence of the degree of disability, such a score is not determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See VAOPGCPREC 10-95 (March 31, 1995).

2012 VA treatment records indicate the Veteran reported an increase in anxiety and stress after halting his vocational rehabilitation program classes because he was unable to drive to and attend classes due to increased pain. 

2013 VA treatment records indicate the Veteran reported an increase in depression symptoms after reducing his interval pain medication. An October 2013 psychiatry note indicated the Veteran demonstrated depressed mood, dysphoric affect, forgetfulness, abnormal judgment, and an obsession with his chronic pain. He denied suicidal ideation. He was assessed with a mood disorder related to chronic pain, a panic disorder without agoraphobia, and a GAF score of 60. 

2014 VA treatment records indicate the Veteran demonstrated increased frustration, anxiety and isolation due to severe pain in his low back, neck and sciatica disabilities. 

At the February 2015 VA medical examination, the Veteran reported irritability, emotional instability, and sleep disturbances, poor concentration, and diminished activity due to pain. The examiner assessed the Veteran with mood disorder and unspecified depressive disorder, noting that the Veteran's depressive symptoms are "mild" when viewed in isolation from his chronic pain interferences. 2015 VA treatment records indicate the Veteran continued to demonstrate symptoms of a mood disorder related to chronic pain and a panic disorder. 

2016 VA treatment records indicate the Veteran began taking mood medication in addition to his depression, anxiety, and sleep medications. He was assessed with major depressive disorder in addition to panic and chronic pain disorders in November 2016.

During the rating period, the Veteran's disability did not demonstrate as 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, near-continuous panic attacks affecting the ability to function independently, impaired impulse control, or illogical speech. 

Given these facts, the preponderance of the evidence is against the claim for a higher rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 





ORDER

1. Entitlement to an effective date earlier than December 7, 2011, for mood and unspecified depressive disorders is denied.

2. Entitlement to an effective date earlier than May 18, 2010, for cervical spine radiculopathy of the left upper extremities is denied.

3. Entitlement to an effective date earlier than May 18, 2010, for cervical spine osteoarthritis, degenerative disc disease, and intervertebral disc syndrome is denied.

4. Entitlement to an evaluation in excess of 40 percent since April 1, 2013, for chronic lumbosacral strain with spondylosis of L5, to include osteoarthritis and degenerative disc disease, is denied.

5. Entitlement to a disability evaluation in excess of 10 percent since May 18, 2010, for cervical spine osteoarthritis, degenerative disc disease, and intervertebral disc syndrome is denied.

6. Entitlement to a disability evaluation in excess of 40 percent since September 28, 2009, for left leg radiculitis and left lower extremity radiculopathy (sciatica) is denied.

7. Entitlement to a disability evaluation in excess of 20 percent since May 18, 2010, for cervical spine radiculopathy of the left upper extremities is denied.



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8. Entitlement to a disability evaluation in excess of 50 percent since December 7, 2011, for mood and unspecified depressive disorders is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs