Citation Nr: 18144645 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-38 179A DATE: October 25, 2018 ORDER A rating in excess of 20 percent for a right thumb disability is denied. An initial rating in excess of 70 percent for posttraumatic stress disorder is denied. An effective date earlier than January 28, 2012 for a total disability rating based on individual unemployability is denied. REMANDED Entitlement to a rating in excess of 20 percent for a low back disability is remanded. Entitlement to ratings in excess of 10 percent for left lower extremity radiculopathy for the period prior to September 27, 2014, and in excess of 20 percent thereafter is remanded. VETERAN’S CONTENTIONS The Veteran is seeking increased ratings for the following disabilities: a right thumb disability, currently rated as 20 percent disabling; posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling; a low back disability, currently rated as 20 percent disabling; and left lower extremity radiculopathy, currently rated as 20 percent disabling. The Veteran contends that these ratings do not accurately reflect the severity of his disabilities. Specifically, he asserts that his physical and psychiatric disabilities prevent him from securing and maintaining gainful employment. The Veteran has been awarded a total disability rating based on individual unemployability (TDIU), effective January 28, 2012, the date he was terminated from his long-standing job at a 311 call center. The Veteran contends that the effective date of this grant should be earlier than the date of his termination. He asserts that prior to that date, his disabilities had created significant interpersonal difficulties at work and had caused him to miss more than thirty workdays in his last year. For these reasons, he asserts that he has been unable to secure and follow a substantially gainful occupation since February 2010. FINDINGS OF FACT 1. The Veteran has been in receipt of the maximum schedular rating for a right thumb disability throughout the claim period. 2. Throughout the claim period, the Veteran’s PTSD has been productive of no more than occupation and social impairment with deficiencies in most areas, including work, family, judgment, and mood. See VA Examinations dated September 2010, December 2011, September 2014. 3. The Veteran has been unable to secure and maintain a substantially gainful occupation since no earlier than January 28, 2012. See December 2011 Claim for a TDIU; July 2013 Request for Employment Information; September 2016 Vocational Assessment. CONCLUSIONS OF LAW 1. There is no legal basis for a schedular rating in excess of 20 percent for a right thumb disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5228. 2. The criteria for a rating in excess of 70 percent for posttraumatic stress disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for an effective date earlier than January 28, 2012 for a total disability rating based on individual unemployability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1981 to October 1984, and in the Marine Corps from January 1986 to May 1989. This case is before the Board of Veterans’ Appeals (Board) on appeal from January 2011, July 2013, and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Entitlement to an Increased Rating for a Right Thumb Disability The Veteran is service connected for a right thumb disability status post metacarpophalangeal joint fusion. His right thumb disability is rated under Diagnostic Code (DC) 5228 for limitation of motion of the thumb. DC 5228 provides for three ratings for limitation of motion of the thumb, with the highest being 20 percent for a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. The Veteran’s right thumb disability has been assigned a rating of 20 percent, the maximum schedular rating under DC 5228, throughout the claim period. The only relevant diagnostic code which provides for a schedular rating higher than 20 percent is DC 5152, which pertains to amputation of the thumb. In this case, however, a rating under DC 5152 is not appropriate, as the functioning of the Veteran’s right thumb is not so diminished that the disability is analogous to amputation. For example, on VA examination in September 2014, he was observed to have muscle weakness in the thumb, and to have trouble grasping objects, but he was able to move the thumb, and had no numbness in the thumb. In addition, he was able to strongly oppose all fingers to the thumb, with the exception of the fifth finger, and his right hand grip strength measured 5/5. Following physical examination, the examiner specifically commented that the Veteran’s right thumb disability did not cause functional impairment to the extent that no effective function remained other than that which would be equally well-served by an amputation. Although there was diminished ability, the Veteran remained able to grasp and manipulate the right thumb. As some effective functioning of the right thumb remains, although diminished, there is no legal basis for a rating in excess of 20 percent. As such, the Veteran’s claim for an increased rating must be denied. 2. Entitlement to an Increased Rating for PTSD As noted in the above conclusions of law, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. The Board finds that the criteria for a schedular rating higher than 70 percent are not met, because the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, or duration. For example, the Veteran has not reported persistent delusions or hallucinations. The Veteran has not reported grossly inappropriate behavior or intermittent inability to perform activities of daily living, nor has such been observed. Rather, the Veteran has reported keeping up activities of daily living, as well as various family relationships throughout the claim period. For example, the Veteran reported that he keeps in contact with his two adult children, who are doing well, and with one of his brothers. The Veteran reported that he regularly walks his dog, and that in 2014 he had enrolled in VA’s MOVE! weight loss program and successfully lost ten pounds. See September 2014 VA Examination. In addition, VA examinations throughout the claim period indicate that the Veteran exhibited normal appearance and hygiene and orientation to person, time, and place. See VA Examinations dated September 2010, December 2011, September 2014 In determining that the criteria for a 100 percent rating are not met, the Board has considered the lay assertions, including the Veteran’s own statements as to his symptomatology and the severity of his condition. It notes that those statements primarily describe symptoms, such as anxiety, difficulty adapting to workplace stress, and difficulty maintaining effective relationships, which are contemplated by the 70 percent, rather than the 100 percent rating criteria. In any event, to the extent entitlement to a 100 percent rating based on those symptoms is claimed, the Board concludes that the findings during medical evaluations, which do not reflect total occupational and social impairment, are more probative than the lay assertions of record. The Board has accordingly relied heavily on the VA examinations showing limitation of function that, at most, approximates the criteria for a 70 percent evaluation. In short, based on the evidence and analysis above, the Board finds the criteria for a rating in excess of 70 percent for PTSD are not met throughout the claim period. Accordingly, a rating in excess of 70 percent is not warranted. 3. Entitlement to an Earlier Effective Date for the Grant of a TDIU In a November 2014 rating decision, the RO granted the Veteran a TDIU, effective January 28, 2012, the date the Veteran was terminated from his long-standing job at a 311 call center. The Veteran appealed for an effective date earlier than January 28, 2012, and has submitted evidence in support of the assertion that he had been unable to secure and maintain a substantially gainful occupation since February 2010. For VA purposes, substantially gainful employment is employment which is more than marginal and permits the individual to earn a living wage. Marginal employment comprises employment producing an earned annual income that does not exceed the poverty threshold, as established by the U.S. Department of Commerce, Bureau of the Census. See Moore v. Derwinski, 1 Vet. App. 356, 358–59 (1991). The Board takes judicial notice of the fact that in 2010 and 2011 the poverty threshold for a household of one person was $11,139 and $11,484, respectively. United States Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last revised September 6, 2018). In December 2011, the Veteran reported that he had missed 264 work hours (roughly 33 work days) in the past year due to illness. In July 2013, the Veteran’s employer reported that he had missed 314 work hours (roughly 39 work days) in the year before he was terminated, due to “medical disability.” The Veteran also submitted personnel documents indicating that he had been the subject of disciplinary proceedings in 2010 and 2011. As part of a vocational assessment, a vocational expert noted that the Veteran’s W2s reflected a decrease of earnings in 2010 and 2011 due to his absences. Whereas in 2008 and 2009 the Veteran earned $52,000, in 2010 he only earned $41,000 and in 2011 $37,000. Although the Veteran clearly had significant difficulty at work prior to his termination, and in spite of his many absences, his annual earnings remained well more than three times the poverty threshold throughout 2010 and 2011. Therefore, the Board finds that prior to January 28, 2012, the Veteran’s employment was more than marginal and permitted him to earn a living wage, notwithstanding the difficulties he experienced. Accordingly, an effective date earlier than January 28, 2012 for the grant of a TDIU is not warranted. REASONS FOR REMAND The Veteran is seeking increased ratings for a low back disability and associated radiculopathy of the left lower extremity, both currently rated as 20 percent disabling. When evaluating joints, VA examiners must include an opinion as to whether pain significantly limits functional ability on use and during flare ups. If feasible, examiners must estimate any functional loss in terms of limitation of range of motion. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran has been afforded two examinations on these claims throughout the claim period, in December 2011 and September 2014. At both examinations, the Veteran reported periodic flare ups of his disabilities, precipitated by certain motions of the spine, and by walking or climbing stairs. However, the December 2011 examiner failed to include an opinion as to whether pain significantly limited the Veteran’s functional ability during flare ups, and although the September 2014 examiner did opine that the Veteran experienced increased functional loss during flare ups, he failed to estimate the functional loss in terms of limitation of range of motion. The Board also notes that although the Veteran has been granted a separate compensable rating for radiculopathy of only the left lower extremity, the December 2011 examiner noted symptoms of radiculopathy bilaterally. For these reasons, the Board finds that the December 2011 and September 2014 VA examinations are inadequate for VA rating purposes. Therefore, a remand is necessary to provide the Veteran an adequate VA examination on his claims for increase for a low back disability and associated left lower extremity radiculopathy. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected lower back disability and associated lower extremity radiculopathy. The examiner should include an opinion as to whether pain from the Veteran’s service-connected disabilities significantly limits functional ability on use and during flare ups. If feasible, the examiner must estimate any functional loss in terms of limitation of range of motion. The examiner’s attention is directed to a December 2011 VA examination, which noted symptoms of bilateral lower extremity radiculopathy. The examiner should note whether there are signs or symptoms of radiculopathy of the right as well as left lower extremity. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel