Citation Nr: 18141609 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 15-17 780 DATE: October 11, 2018 ORDER A rating in excess of 20 percent for a lumbar spine disability is denied. A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total rating based on individual unemployability (TDIU), on a schedular basis, is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s lumbar spine disability manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 2. The preponderance of the evidence is against finding that the Veteran’s PTSD with depressive disorder was manifested by occupational and social impairment in most areas, such as work, family relations, judgement, thinking, or mood. 3. The Veteran is unable to maintain substantially gainful employment due to service connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5235. 2. The criteria for an initial rating in excess of 50 percent for PTSD with depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to December 1964 and September 1967 to December 1969. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Lumbar spine The Veteran contends that his lumbar spine disability is more severe than currently rated. At the outset, the Board notes that the Veteran has separate compensable ratings for neurological impairments of the right and left lower extremity associated with his lumbar spine disability. The contested January 2013 rating decision did not address these neurological impairments. Based on this procedural history, the Board finds that the ratings for these secondary impairments are not part of the claim in appellate status. The Veteran’s lumbar spine disability is rated as 20 percent disabling under Diagnostic Code 5242-5235. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. However, both Diagnostic Code 5242 and 5235 apply the same rating criteria. See 38 C.F.R. § 4.71a. Under these Diagnostic Codes a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 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 the entire spine. 38 C.F.R. § 4.71a. For VA 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. The May 2012 VA examination found forward flexion to 70 degrees with pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. It was noted that the Veteran used a cane regularly for locomotion. No ankylosis was noted. The Veteran reported flare-ups due to cold weather and walking. The Veteran reported that he could walk about one block and then had to stop for rest; he reported pain upon walking more than two blocks. A February 2016 private DBQ found forward flexion to 60 degrees with pain on movement, atrophy of disuse, and interference with sitting and standing. It was noted that the Veteran constantly used to cane. No ankylosis was reported. The Veteran reported that flare-ups were so frequent that the term was a misnomer, and that he was barely able to perform tasks associated with daily living. The examiner further added that pain, weakness, fatigability, and incoordination could limit forward flexion to 40 degrees during a flare-up or when the joint is used repeatedly over a period of time. A July 2016 VA neurosurgery consult reported that the Veteran’s gait was very slow, wide-based, and he waddled. He could not perform tandem walking. The consult further reported that the Veteran was limited in his bending and that any direction caused pain and discomfort, but no range of motion values were reported. VA treatment records during the appeal period reflected complaints and treatment of chronic low back pain. At times, these records indicated that forward flexion was limited, but did not provide numeric values. Based on the foregoing, the Board finds that a rating in excess of 20 percent is not warranted. The evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine to enable a finding that the disability picture more nearly approximates the next higher disability rating under Diagnostic Codes 5242 and 5235. The Board has considered the holding of Sharp v. Shulkin, and observes that a higher rating is not warranted due to the Veteran’s reported flare-ups. 29 Vet. App. 26 (2017). The Veteran described flare-ups as based on cold weather, walking, and an inability to perform tasks associated with daily living. He also described flare-ups as being constant in nature. Hence, the record does not indicate any additional loss of range of motion in terms of degrees during flare-ups because the Veteran asserts that flare-ups are present all the time. The best reference the Board has is the opinion of the February 2016 private examiner who opined that additional functional loss would amount to forward flexion to 40 degrees. Notwithstanding this favorable range of motion measurement, the evidence does not amount to the level of functional loss required to satisfy the 40 percent rating criteria. As such, the Board does not find that flare-ups necessitate a higher rating for limitation of motion, as the record demonstrates flare-ups did not result in a greater limitation of motion as considered by the next higher rating criteria. The record contains adequate information regarding the level of functional impairment, and this evidence does not support a higher rating. The Board has considered the Veteran’s lay statements regarding the functional impact of his lumbar spine disability, including pain, and difficulty with sitting, walking and standing. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered his use of a cane. His statements and use of a cane are consistent with the evidence of record and the rating assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the evidence of record. See, e.g., Spellers v. Wilkie, No. 16-4053, slip op. at 6 (U.S. Vet. App. Sept. 7, 2018) (holding that § 4.120 contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker). To the extent that the Veteran argues his symptomatology is more severe than that shown during the VA and private examinations, his statements must be weighed against the other evidence of record, and the specific examination findings of trained health care professionals are of greater probative weight than more general lay assertions. In particular, the Board has considered the February 2016 private DBQ that the Veteran submitted to further his lumbar spine disability claim. Even when considering this, which is the most favorable medical evidence of record, its findings do not support a higher rating. Similarly, the Board is cognizant that during the September 2016 hearing the Veteran testified that his lumbar spine disability had progressed. However, his testimony was related to the associated neurological impairments secondary to his service-connected lumbar spine disability. As the neurologic impairments are not properly before the Board, there is no need to remand for an examination. The Board also considered other Diagnostic Codes; however, the Board finds that they are not applicable. In particular, Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) be rated either under the General Rating Formula for Disease and Injuries of the Spine, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent rating is assigned when there is IVDS with incapacitating episodes having a total duration of 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. In this case, neither the VA nor the private examinations stated that the Veteran had any incapacitating episodes over the past 12 months due to IVDS. Additionally, there is no evidence suggestive of incapacitating episodes for a duration of 4 or more weeks to warrant a higher rating under this Diagnostic Code. In sum, the Board finds that the preponderance of the evidence is against the claim, and a rating in excess of 20 percent is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. PTSD The Veteran contends that his PTSD with depressive disorder is more severe than currently rated. The Veteran’s PTSD with depressive disorder (hereinafter “PTSD”) is currently rated under Diagnostic Code 9411 as 50 percent disabling. See 38 C.F.R. § 4.130. Diagnostic Code 9411 provides that a 70 percent rating is warranted 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); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Ratings are assigned according to the manifestation of particular symptoms, but the use of a term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability rating to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan, 16 Vet. App. at 442. Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Based on review of S&W healthcare records, VA treatment records, and the July 2011 VA psychological examination, the Board finds that a rating in excess of 50 percent is not warranted. Despite the Veteran’s subjective symptom reporting, the July 2011 VA examiner found mild chronic memory impairment based on the Veteran reporting that he had trouble remembering some events that happened when he was in Vietnam; moderate depressed mood making him apathetic, withdrawn, and less willing to make efforts to maintain his activities and relationships; and chronic sleep impairment based on his reporting of nightmares and statements that he becomes irritable and lethargic when he goes for several days without sleep. Overall, the examiner found occasional decrease in work efficiency, or intermittent periods of inability to perform occupational tasks due to PTSD symptoms, but generally satisfactory functioning (routine behavior, self-care, and conversation normal). This medical finding in conjunction with other symptoms reported in treatment records, such as heighten startled responses, chronic depression, anxiety, memory impairments, and paranoia, are adequately covered by the 50 percent rating criteria under Diagnostic Code 9411. The Board acknowledges that the November 2015 private psychological DBQ found occupational and social impairment as contemplated by the 70 percent rating criteria, to include symptoms of an inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, impaired impulse control, suicidal ideations, and neglect of personal appearance and hygiene. However, VA treatment records and VA clinicians, who treated the Veteran regularly during the appeal period, consistently did not find these symptoms. But see White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2000) (VA benefits statutes and regulations do not provide any basis for the “treating physician” rule). The Board further notes that there is no indication in the private DBQ whether the private examiner reviewed the Veteran’s claims file, to include the voluminous VA mental health treatment records. In sum, the Board finds that when balancing the favorable and unfavorable evidence, the weight of the evidence is against a higher rating as the majority of the evidence does not report symptoms consistent with the 70 percent rating criteria. Additionally, the Board gives less weight to the one favorable private examination, whose findings do not comport with the overall disability picture presented by years of mental health treatment records. Similarly, the Board is cognizant that on occasion the Veteran reported thoughts of suicide and rage to VA clinicians. For example, a February 2013 VA psychology note reported suicidal thinking, a March 2013 VA psychology note reported a verbal altercation with a friend, an August 2013 VA psychology note reported homicidal and suicidal feelings along with the desire “to pound anybody who bothers” him, and an April 2017 VA reported suicidal ideation without an intention or plan. Notwithstanding these instances, the majority of the time it was reported that the Veteran denied suicidal or homicidal ideations and aggressive behavior that was a recurrent problem for him. Consequently, VA treatment records as a whole demonstrate it was with limited frequency that the Veteran reported suicidal thoughts and ragefulness to treating clinicians. As a result, the Board finds that these symptom manifestations did not occur with the frequency, severity, and duration to warrant a higher rating. Moreover, despite the symptom reporting by the Veteran, VA clinicians who had regular contact with him did not deem him to be at a high risk for suicide, or a danger to others during the appeal period. These clinical findings by treating providers further supports that a rating in excess of 50 percent is not warranted. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017), Furthermore, the evidence does not indicate an inability to establish and maintain effective relationships. VA treatment records reported that the Veteran still maintained contact with family and had some friendships. Hence, after consideration of the medical and lay evidence of record, the Board finds that despite fluctuations in reported symptoms, the Veteran’s overall disability picture does not indicate a worsening of his PTSD to warrant a 70 percent rating. There also is no indication that the Veteran experienced symptomology associated with the 100 percent rating criteria. Objective findings from VA treatment records frequently reported that the Veteran was cooperative, mild mannered, fully oriented with memory intact, and alert; had good eye contact, facial expressions were appropriate to content, speech was clear and logical, no evidence of delusions or hallucinations, no suicidal and homicidal ideations, and adequate hygiene and grooming. To the extent that the Veteran argues his symptomatology is more severe than that shown at the VA examination and in treatment records, his statements must be weighed against the other evidence of record. The specific examination and clinical findings of trained health care professionals are of greater probative weight than the Veteran’s general lay assertions. Considering the overall impact of the Veteran’s psychiatric symptoms, the Board finds that the 50 percent rating contemplates the level of severity experienced by the Veteran during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 50 percent. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. TDIU The Veteran contends that these disabilities precluded him from substantially gainful employment. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is an additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). As of April 4, 2013, the Veteran’s service-connected disabilities met the schedular criteria set forth in section 4.16(a). The question that remains, then, whether the Veteran’s service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience. 38 C.F.R. § 3.341, 4.16(a), 4.19; Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 4.1, 4.15, 4.16(a). The evidence shows that the Veteran has a high school education and has worked in unskilled jobs. His last employment ended in 2006. He was a farmworker at a poultry research facility for almost 20 years. The Board finds that the Veteran left this position due to the inability to perform the physical requirements of the job. The Board acknowledges that the record suggests that after leaving the poultry research facility, the Veteran worked for two months. The Board resolves reasonable doubt in the Veteran’s favor and finds that this limited employment was marginal in nature, and therefore not considered substantially gainful employment. See 38 C.F.R. § 4.16(a) (Board should consider marginal employment on a facts found basis). The medical records and lay statements indicate that the Veteran’s lumbar spine disability precluded his ability to work in unskilled labor occupations. The Board finds that the evidence, as demonstrated by the September 2013 private chiropractor letter, June 2015 VA examination, and February 2016 private DBQ; indicated that the Veteran experienced functional impairment due to restrictions on standing and walking that caused him to not be able to secure or follow substantially gainful employment. The Board finds that the Veteran’s lumbar spine disability prevented him working in occupations consistent with his education and work experience. Hence, the Board does not reach the issue of whether the Veteran’s PTSD precluded employability.   In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected lumbar spine disability prevented him from securing and following substantially gainful employment consistent with his education and occupational experience. Therefore, resolving all reasonable doubt in the Veteran’s favor, entitlement to a TDIU is granted. 38 C.F.R. § 4.16. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The AOJ will assign the effective date, an appealable issue. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel