Citation Nr: 18143633 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-14 921 DATE: October 19, 2018 ORDER Entitlement to a rating in excess of 20 percent for a back disorder is denied. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran’s disability of lumbar spine sprain was manifested by pain and limitation of motion with forward flexion of the thoracolumbar spine to, at worst 50 degrees, with a combined range of motion of the thoracolumbar spine of 170 degrees 2. The Veteran’s service-connected post-traumatic stress disorder has manifested by occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas has not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating for a lumbosacral spine strain in excess of 20 percent have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to May 1988, December 1995 to August 1996, January 2000 to September 2000, February 2003 to May 2003 and June 2010 to June 2011. In April 2018, the Veteran appeared at video hearing before the undersigned Veterans’ Law Judge. A transcript of the hearing is of record. Entitlement to a rating in excess of 20 percent for a back disorder The Veteran seeks a rating in excess of 20 percent for his service-connected back disability. The Veteran’s condition is currently evaluated under Diagnostic Code 5237 for loss of range of motion and painful motion. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2017). Diagnostic Code 5237 directs that lumbosacral strain be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, a 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine 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 30 percent evaluation is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine to 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. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, in relevant parts, Note (1) instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. A May 2014 rating decision granted service connection for a L5-S1 disc herniation rated at 10 percent effective May 23, 2013. That rating was subsequently increased to 20 percent in an October 2015 rating decision. The Veteran underwent a VA examination of his back in August 2015 where he reported pain and discomfort with ambulation or sitting of longer than one hour, limited bending as well as limitations on being able to run and lift. Range of motion testing revealed forward flexion up to 60 degrees and backward extension up to 20 degrees with pain noted at the end of the range of motion. Lateral flexion and rotation were up to 20 degrees on the right and up to 15 degrees on the left with evidence of pain at the end of range of motion. The examiner did not find any ankylosis of the thoracolumbar spine. The Board notes that none of the available medical evidence revealed forward flexion of less than 30 degrees or ankylosis of the spine, as is warranted for a 40 percent rating. Rather, the Board finds that the medical evidence of record is consistent with a 20 percent disability rating, not a rating in excess of 20 percent. The Board has also considered whether a higher disability evaluation is 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. 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. A part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). The Veteran has complained about back pain, but even considering pain, the Veteran’s forward flexion is only 50 degrees and his combined range of motion is not less than 170 degrees. As such, the Board concludes that the back disability in is not of such severity as to merit a rating in excess of 20 percent, even when contemplating pain, repetitive motion, and flare-ups, as these symptoms do not cause sufficient functional limitation. In this regard, it is important for the Veteran to understand that his complaints are, in part, a basis for these findings. Simply stated, if he did not have any problems with his back, there would be no basis for the current findings. The fact that the Veteran has problems with his back is not at issue, only the degree based on the standards that the Board must use. Entitlement to a disability rating in excess of 50% for PTSD The Veteran’s PTSD is currently evaluated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 50 percent evaluation for PTSD requires 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; and, difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence of 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran was afforded a VA examination in September 2015. The examiner noted hypervigilance, irritable behavior, exaggerated startle response and sleep disturbances. The examiner opined that the Veteran’s symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In April 2018, the Veteran and his wife testified to the Veteran’s hypervigilance, specifically needing to always face the door while in public, bouts of panic requiring him to leave public events and difficulty in crowds. The Board finds the preponderance of the evidence does not show the Veteran suffers from symptoms warranting a higher rating. The Board acknowledges the Veteran’s statements that he still suffers from symptoms of his PTSD (which is clear), including the persistent hypervigilance described at the April 2018 hearing. The Board also acknowledges the Veteran’s continuing treatment of his mental health. However, several medical records show that the Veteran’s PTSD symptoms are mild and lead to occupational and social impairment with occasional decreases in work efficiency. Therefore, because the preponderance of the evidence does not show the Veteran’s PSTD warrant a higher rating, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3. The Board has also considered whether an inferred claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board has jurisdiction to consider the Veteran’s possible entitlement to a total TDIU rating when the issue is raised by an assertion or is reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. In this case, the Board notes that during a May 2015 hearing before a Decision Review Officer, the Veteran alleged an inability to work in his desired profession as well as difficulty with his employment at that time. However, the evidence indicates that despite his service-connected disabilities, the Veteran has continued to work full time. At the April 2018 hearing before the undersigned, the Veteran testified that he remains employed and neither the Veteran nor his representative raised a claim for TDIU. Accordingly, the Board has determined that the issue of entitlement to a TDIU has not been raised in this case. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel