Citation Nr: 18142585 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 09-06 087 DATE: October 16, 2018 ORDER A rating in excess of 10 percent prior to July 11, 2016, and in excess of 20 percent afterwards, for a lumbar spine disability is denied. From October 25, 2007, to November 18, 2011, a rating of 30 percent for anxiety disorder is granted, subject to the provision governing the award of monetary benefits. From November 18, 2011, a rating of 50 percent for anxiety disorder is granted, subject to the provision governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to July 11, 2016, even considering his complaints of pain and functional loss, the forward flexion in the Veteran’s lumbar spine was not shown to be functionally limited to 60 degrees or less; combined range of motion of the lumbar spine not greater than 120 degrees was not shown; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown; ankylosis of the lumbar spine was not shown; and incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during any 12-month period were not shown. 2. From July 11, 2016, even considering his complaints of pain and functional loss, the forward flexion in the Veteran’s lumbar spine is not shown to be functionally limited to 30 degrees or less; ankylosis of the lumbar spine is not shown; and incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during any 12-month period are not shown. 3. From October 25, 2007, to November 18, 2011, the Veteran’s anxiety disorder was shown to cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not worse. 4. From November 18, 2011, The Veteran’s anxiety disorder has been shown to cause occupational and social impairment with reduced reliability and productivity, but not worse. CONCLUSIONS OF LAW 1. Prior to July 11, 2016, the criteria for a rating in excess of 10 percent for a lumbar spine disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes 5237, 5243. 2. From July 11, 2016, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. 3. From October 25, 2007, to November 18, 2011, the criteria for a 30 percent rating, but not higher, for anxiety disorder were met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9413. 4. From November 18, 2011, the criteria for a 50 percent rating, but not higher, for anxiety disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from October 1997 to September 1998. In connection with this appeal, the Veteran testified at a hearing before an Acting Veterans Law Judge (AVLJ) in May 2011. A transcript of the hearing is of record. A September 2015 letter informed the Veteran that the AVLJ who conducted the May 2011 hearing was no longer at the Board and asked him if he wished to attend another hearing before a VLJ who would render a determination in his case. He was further informed that if no response was received that it would be assumed that he did not want another hearing and that a decision on his claim would be made. No response was received from the Veteran in regard to this inquiry. Increased Rating Lumbar Spine Disability The Veteran filed his increased rating claim in October 2007, which was denied by a February 2008 rating decision. In an April 2018 rating decision, he was granted a 20 percent rating effective July 11, 2016. The Veteran disagrees with the assigned ratings and asserts he is entitled to higher ratings. A November 2015 rating decision also granted an increased rating of 10 percent for right lower extremity radiculopathy. However, the Veteran has not disagreed with the rating decision. Accordingly, this issue is not before the Board. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not appear to show that the Veteran has experienced any IVDS in his lumbar spine during any period on appeal. October 2008, July 2015, and July 2016 VA examiners reported that the Veteran did not have any incapacitating episodes due to his lumbar spine. In addition, there is no evidence showing that the Veteran has been specifically prescribed bed rest to treat his lumbar spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine for the periods on appeal. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the lumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the lumbar spine is greater than 120 degrees but not greater than 235 degrees; or if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the lumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the lumbar spine is not greater than 120 degrees; or if there is 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 if forward flexion of the lumbar spine is 30 degrees or less or there is favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire lumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the lumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. The Veteran’s treatment records show that he has received treatment for his lumbar spine disability, including chiropractic treatment records in 2018. However, his treatment records do not describe the results of any range of motion testing, aside from suggesting decreased range of motion. Likewise, there is no finding of any spinal ankylosis. In October 2008, the Veteran was afforded a VA examination. He reported constant back pain, but denied having any flare-ups. On examination, he demonstrated normal forward flexion to 90 degrees with pain, extension to 10 degrees with pain, left and right lateral flexion to 20 degrees with pain, and normal left and right lateral rotation to 30 degrees. Repetitive use testing resulted in no additional limitation of motion or effect of incoordination, fatigue, weakness, or lack of endurance. In July 2015, the Veteran was afforded a VA examination. On examination, he demonstrated forward flexion to 80 degrees with pain at 75 degrees, extension to 20 degrees with pain at 15 degrees, left and right lateral flexion to 20 degrees with pain at 15 degrees on the right, and left and right lateral rotation to 25 degrees. Repetitive use testing resulted in no additional limitation of motion but did result in less movement than normal, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The Veteran did not have localized tenderness, pain to palpation, or guarding of the lumbar spine. In July 2016, the Veteran was afforded a VA examination. He reported having constant back pain and having flare-ups that resulted back stiffness. He ambulated with a cane. On examination, he demonstrated flexion to 40 degrees, extension to 15 degrees, left and right lateral flexion to 25 degrees, and left and right lateral rotation to 20 degrees. The examiner noted that the Veteran had pain with forward flexion, extension, and left and right lateral rotation. The examiner indicated that there was evidence of pain with weight bearing but that there was no objective evidence of localized tenderness, pain on palpitation, guarding, or muscle spasm. Repetitive use testing was not performed. The examiner indicated that there was no ankylosis of the spine. After a complete review of the medical record, for the period prior to July 11, 2016, the Veteran does not demonstrate limitation of motion (flexion) consistent with a 20 percent rating. At the October 2008 VA examination, he demonstrated normal flexion to 90 degrees, even considering pain and repetitive use testing, and had a combined range of motion of 200 degrees. At the July 2015 VA examination, he demonstrated flexion to 75 degrees, even considering pain (and to 80 degrees of flexion with pain) and repetitive use testing, and had a combined range of motion of 190 degrees. The medical record does not demonstrate findings consistent with a higher 20 percent evaluation as he did not demonstrate forward flexion limited to less than 60 degrees or have a combined range of motion of less than 120 degrees. In addition, he did not have muscle spasm or guarding. As such, prior to July 11, 2016, a rating in excess of 10 percent is not warranted. For the period beginning July 11, 2016, the Veteran does not demonstrate limitation of motion (flexion) consistent with a 40 percent rating. At the July 2016 VA examination, he demonstrated normal flexion to 40 degrees, even considering pain. The medical record does not demonstrate findings consistent with a higher 40 percent evaluation as he did not demonstrate forward flexion limited to 30 degrees or less. As such, a rating in excess of 20 percent is not warranted. The Board has considered whether higher disability evaluations are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the Veteran clearly experienced some pain on range of motion testing. However, even if flexion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell, 25 Vet. App. 32, 36-38. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, repetitive testing resulted in no additional limitation of motion and pain was not shown to be so limiting as to functionally limit the range of motion to a degree that would support a higher rating. His rating is largely the result of the application of such functional limitations, as his demonstrated range of motion equivalent to a 10 percent rating prior to July 11, 2016, and equivalent to a 20 percent rating afterwards in recognition of the functional limitations. The Veteran’s medical record does not demonstrate any additional functional limitations. Such fails to support the assignment of a higher ratings. Accordingly, a rating in excess of 10 percent prior to July 11, 2016, and in excess of 20 percent afterwards, for a lumbar spine disability is denied. Anxiety Disorder The Veteran filed his increased rating claim in October 2007, which was denied by a February 2008 rating decision. In a December 2008 rating decision, he was granted an increased rating of 10 percent effective October 25, 2007. In a July 2012 rating decision, he was granted a 30 percent rating effective November 28, 2011. The Veteran disagrees with the assigned ratings and asserts he is entitled to higher ratings. Under the General Rating Formula for Mental Disorders, a 10 percent evaluation is assigned when a veteran’s mental disability causes 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 for symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 30 percent evaluation is assigned when a veteran’s mental disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is assigned when a veteran’s mental disability causes 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned when a veteran’s mental disability causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran’s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez Claudio v. Shinseki, 713 F.3d 112, 116 17 (Fed. Cir. 2013). That is, it is how the symptomatology impacts the Veteran’s Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board before August 4, 2014, the DSM-5 is not applicable to this case. The Veteran’s treatment records show while his mood has varied, he has consistently been fully alert and oriented, goal directed, cooperative, and appropriate with adequate memory, insight, judgment, and impulse control. He also consistently denied having any hallucinations, delusions, suicidal ideation, or homicidal ideation. In October 2008, the Veteran was afforded a VA examination. He reported that he lived with his father. On examination, he was articulate, verbal, and generally cooperative. He demonstrated fair social skills, was logical, and had average intelligence. He was fully alert and oriented with normal concentration and memory. He had a depressed affect. His symptoms included anxiety, depression, nightmares, occasional crying spells, fatigue, and feelings of worthlessness, which all appeared to be closely associated with his pain. He denied having any psychotic symptoms. The examiner reported that the Veteran’s anxiety resulted in mild occupational and social difficulties. In November 2011, the Veteran was afforded a VA examination. He reported that he had a pretty close relationship with his family. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s symptoms included anxiety, suspiciousness, panic attacks that occurred weekly or less often, and panic attacks more than once per week. The examiner indicated that the Veteran’s anxiety resulted in occupational and social impairment with reduced reliability and productivity. In October 2015, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s symptoms included anxiety, suspiciousness, circumstantial, circumlocutory, or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. The examiner indicated that the Veteran’s anxiety resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and bility to perform occupational tasks only during periods of significant stress or mental symptoms controlled with medication. That is, the examiner found that while the Veteran might experience some symptoms that can be associated with a higher rating, the impact of such symptoms on his social and occupational functioning was not consistent with a higher rating. In July 2016, the Veteran was afforded a VA examination. The examiner reported that the Veteran’s symptoms included anxiety and mild memory loss. The examiner indicated that the Veteran’s anxiety resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with routine behavior, self-care, and conversation. At the examination, it was noted that the Veteran had several hobbies and had reconnected with his high school girlfriend who had since moved in with him. Additionally, the Veteran had only mild memory loss, and he denied symptoms such as homicidal ideation or suicidal ideation, or impaired impulse control that might be associated with a higher rating. As described, prior to November 18, 2011, the record establishes that the Veteran’s anxiety disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At the October 2008, the examiner reported symptoms that were consistent with a 30 percent rating. However, the record does not contain evidence that establishes the Veteran’s anxiety resulted in symptoms consistent with a rating in excess of 30 percent. In fact, reasonable doubt is being resolved in the Veteran’s behalf to increase his rating during this time period, noting that the Veteran’s psychiatric impairment at the 2008 VA examination was found to be mild in nature. Beginning November 18, 2011, the record establishes that the Veteran’s anxiety disorder results in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. However, occupational and social impairment with deficiencies in most areas or total occupational and social impairment has not been shown. The Veteran continues to have some contact with his family and had reconnected with his high school girlfriend, showing that while the Veteran prefers an isolated existence he is not incapable of establishing or maintaining relationships. The Board is not saying that this is easy, but a 50 percent rating assumes significant relationship problems. Nevertheless, the Veteran has maintained good insight and judgment at his examinations, his mood has been good. He has displayed minimal memory problems. He has been appropriately dressed. (Continued on the next page)   Accordingly, a 30 percent rating prior to November 18, 2011, and a 50 percent rating from November 18, 2011, is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel