Citation Nr: 18140051 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 09-49 031 DATE: October 2, 2018 ORDER The petition to reopen a claim of entitlement to service connection for a lumbar spine disability, now claimed as a spine disability to include cervical spine, lumbar spine, and bilateral upper extremity radiculopathy, is granted. The petition to reopen a claim of entitlement to service connection for a left upper extremity numbness disability, now claimed as a spine disability to include cervical spine, lumbar spine and bilateral upper extremity radiculopathy, is granted. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to a rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for upper extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a March 2006 BVA decision, the Board denied service connection for degenerative disc disease of the lumbar spine. This decision is final and has not been subject to revision on the basis of clear and unmistakable error (CUE) or a motion for reconsideration. 2. Evidence pertaining to the Veteran’s spine disability since the last final Board decision was not previously submitted, relates to an unestablished fact that is necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. A January 2003 rating decision last denied service connection for numbness of the left upper extremity, from the hand to shoulder; evidence pertaining to the Veteran’s left upper extremity since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 4. The Veteran’s lumbar spine disability is attributed to service. 5. Throughout the period on appeal, the Veteran’s PTSD has resulted in occupational and social deficiencies in most areas. CONCLUSIONS OF LAW 1. The March 2006 Board decision, which denied the Veteran’s claim for degenerative disc disease of the lumbar spine, is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.160(d), 20.1100. 2. New and material evidence has been received since the March 2006 Board decision, and the claim for service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2003 rating decision which denied the Veteran’s claim for a left upper extremity numbness disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.1103. 4. The evidence received since the last final January 2003 rating decision is new and material, and the claim for service connection for left upper extremity numbness is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. 5. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for a rating of 70 percent, but no higher, for PTSD, have been met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to July 1985. With respect to the Veteran’s claim for a spinal cord disability, the Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Although the Veteran’s claim was adjudicated by the RO as a claim for a spinal cord disability, the Veteran has consistently alleged that he is claiming entitlement to service connection for lumbar spine, cervical spine, and neurological symptomatology. Such was explicitly noted in his February 2009 notice of disagreement. As such, the Board has recharacterized the issue of entitlement to service connection for a spinal cord disability into three separate claims: (1) entitlement to service connection for a lumbar spine disability, (2) entitlement to service connection for a cervical spine disability, and (3) entitlement to service connection for a bilateral upper extremity radiculopathy. See Id. The Veteran testified at an October 2009 Decision Review Officer (DRO) hearing with respect to his service connection claim for a spinal cord disability. Although he requested a hearing before the Board, he has since withdrawn this request. See August 2018 Attorney Statement. The issue of entitlement to service connection for radiculopathy of the lower extremities has been raised by the record in an August 2018 attorney statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). New and Material Evidence At the time of the last final denial of the Veteran’s claim for service connection for degenerative disc disease of the lumbar spine, in March 2006, evidence of record included service treatment records, VA treatment records, and a VA examination. At the time of the last final denial of the Veteran’s claim for left upper extremity numbness in January 2003, evidence of record included service treatment records, VA and private treatment records, and a VA examination. Evidence associated with the claims file since the previous March 2006 Board decision (lumbar spine) and January 2003 rating decision (left upper extremity) denials include VA treatment records, private treatment records, private medical opinions and statements reflecting continued issues with his claimed disabilities. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for a spine disability and upper extremity radiculopathy are reopened. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a lumbar spine disability. Service treatment records reflect numerous treatment visits for lumbar muscle strain and low back pain. Next, post-service evidence reflects continuing lumbar spine problems. The Veteran reports that he has continued to suffer from lumbar spine problems since service. Following service, the Veteran has been diagnosed with a lumbar spine disability. Supporting his claim is a March 2009 private treating practitioner opinion that notes that the Veteran has back pain which he attributes to an accident in service. No rationale was provided. In a September 2011 private opinion, the private practitioner stated that it is very likely that the Veteran’s back disability is related to service. He stated that his opinion was based on a review of the Veteran’s claims file, radiology reports and VA examination reports. The record also includes a negative October 2001 VA medical opinion. The Board has considered in detail the medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current lumbar spine disability and service. As all elements of service connection have been satisfied, service connection for a lumbar spine disability is granted. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2018). The nature and extent of the disorder are not before the Board at this time. Increased Rating 2. Entitlement to a rating in excess of 50 percent for PTSD. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). The Veteran’s PTSD has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). Based on a review of the record, the Board finds that a 70 percent rating for his PTSD is warranted for the entirety of the appeal period. Under Diagnostic Code 9411, a 50 percent rating is warranted when there is occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited. Rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130 (2018). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, during the pendency of this claim, effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV. It was recommended that the GAF be dropped from DSM-5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. However, as the current claim was received prior to August 4, 2014, the GAF scores will be considered in accordance with DSM-IV to the extent GAF scores are offered. GAF scores included in the record are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Id. A GAF of 51-60 indicates moderate 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 GAF score of 41-50 is indicative of serious 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). A review of the evidence reflects that a rating of 70 percent is warranted throughout the appeal period. At a March 2009 VA examination, the VA examiner described the Veteran as angry and agitated. It was noted that the Veteran reported some suicidal ideas and that he denied ever being homicidal. A GAF score of 55 was assigned. At a November 2010 VA examination, it was noted that the Veteran limits his social interactions and leisure pursuits. Reports of insomnia, fatigue, social withdrawal, isolation, and decreased motivation were noted. The VA examiner stated that the Veteran’s prognosis was guarded given chronicity and duration of symptoms. In a January 2012 statement the Veteran corrected a statement made on the November 2010 examination report. He indicated that he did not get along with his daughter, unlike noted on the examination report. The Veteran additionally stated that he does not socialize with anyone. He self-reported that the only person he socializes with was his wife. The Veteran reported thoughts of hurting himself as well as others. In a December 2012 private psychological opinion, the examiner stated that based on his training, experience, review of records, testing and treatment, the Veteran’s disability has been much higher than 50 percent throughout the appeal period. He noted that the Veteran has a gross impairment of occupational and social functioning. The private practitioner stated that the Veteran has impaired impulse control, almost non-existent social interaction, grossly impaired family relationships, and significant mood disturbances. His social relationships were described as impaired and he demonstrated an inability to maintain effective relationships. In an October 2016 private evaluation, it was noted that the Veteran’s PTSD imposed very severe limitations of social and occupational functioning for the entire period on appeal. A complete and thorough examination report was provided. Following a review of the evidence, to include the statements of the Veteran, the Board finds that the Veteran’s PTSD has been most consistent with a 70 percent disability rating, not the 50 percent disability rating currently assigned. Although some treatment records appear to reflect milder psychiatric symptomatology, the majority of the treatment records are more consistent with a 70 percent disability rating. Accordingly, and based on these findings, the Board finds that a 70 percent rating is warranted, throughout the period on appeal. Nevertheless, the Board finds that a rating in excess of 70 percent is not warranted for any period during the pendency of the claim, as the Veteran’s symptomatology does not manifest as total occupational and social impairment, due to such symptoms as (for example only): gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Veteran’s reported social functioning has been fairly consistent throughout the period on appeal, with social isolation and some interaction. Thus, while limited, he was still able to continue relationships with some people, including his wife. Although he experienced unemployment during the appeal period, a rating of 100 percent is only warranted for both total social and total occupational impairment due to his PTSD. The Board concludes the criteria for a 100 percent rating for PTSD have not been met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9411. His own reports at various evaluations regarding how his PTSD, impacts him, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating have not been met in this case. In summary, while the Veteran is significantly socially limited by his service-connected PTSD, the evidence during the period on appeal fails to show that this impairment is “total” so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran’s PTSD more nearly approximates the rating criteria for a 70 percent rating during the entire period on appeal. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects that the Veteran’s symptomatology more closely approximates that contemplated by the 70 percent evaluation assigned herein. Therefore, the Board concludes that the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. Service treatment records do not reflect treatment for a cervical spine disability. The post-service medical evidence includes treatment records which reflect a current diagnosis of a cervical spine disability. The record additionally contains a March 2009 statement from the Veteran’s private treating practitioner which notes that the Veteran’s neck pain is attributed to an accident in service. Unfortunately, this opinion lacks rationale. As such, this opinion is not adequate for adjudication purposes. In light of this evidence, the Veteran should be afforded a VA etiological opinion to determine etiology of his cervical spine disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for upper extremity radiculopathy and entitlement to a TDIU are remanded. The claims for entitlement to service connection for upper extremity radiculopathy and entitlement to TDIU are inextricably intertwined with the pending issue of entitlement to service connection for a cervical spine disability. Therefore, the Board will not issue a decision on these claims at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are ‘inextricably intertwined’ when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his cervical spine disability. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such the examination, and the examiner must indicate that such review occurred. The examiner should provide an opinion on: Whether it is at least as likely as not (a probability of 50 percent or greater) that any cervical spine disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel