Citation Nr: 18145859 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-24 608A DATE: October 30, 2018 ORDER Entitlement to a rating in excess of 40 percent for lumbar strain is denied. Entitlement to a rating in excess of 50 percent, but not higher than 70 percent, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability does not result in unfavorable ankylosis of the entire thoracolumbar spine, neurological abnormalities, or incapacitating episodes requiring medically prescribed bed rest. 2. For the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has been manifested by deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5235. 2. The criteria for a rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1985 to July 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). During the course of the appeal, the Veteran has asserted that he is no longer able to work due to his service-connected back pain. The issue of TDIU has been raised by the record. Increased Rating 1. Lumbar Strain The Veteran asserts that his symptoms of lumbar strain are worse than contemplated by the rating currently assigned. At a March 2015 VA examination, the Veteran reported that his lumbar strain had gradually worsened since his last VA examination. He reported flare-ups that were periodic and increased in pain, and did not give specifics. He reported he was able to walk 2 to 3 blocks due to pain when not flared, and can stand for 10 minutes. He stated his back limited his ability to bend. Range of motion testing revealed forward flexion to 50 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 25 degrees; right lateral rotation to 30 degrees and left lateral rotation to 20 degrees. The functional loss resulted in limited bending and stooping. Pain on range of motion was noted. There was no evidence of pain with weight-bearing. There was evidence of localized tenderness or pain on palpation of the joints manifested by bilateral lumbar tenderness. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner was unable to say whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time or with flare-ups without resorting to mere speculation. He did not have guarding or muscle spasm. He had normal strength and sensory testing with the exception of his left hip flexion. His left hip flexion muscle strength testing showed active movement against some resistance. There was no muscle atrophy. There was signs of radicular pain or other signs or symptoms due to radiculopathy manifested by at worst mild pain, mild numbness, and mild paresthesias and/or dysesthesias. The Veteran did not have intervertebral disc syndrome (IVDS). He used a brace and cane on occasion due to back pain. There was no ankylosis of the spine. The Board finds that a rating in excess of 40 percent is not warranted, as the medical evidence of record shows that the Veteran’s lumbosacral spine has never been ankylosed, either favorably or unfavorably. With regard to establishing loss of function due to pain, the provisions of the general rating schedule for spinal disorders are controlling whether or not there are symptoms of pain, and irrespective whether the pain radiates. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016 ). See DeLuca. However, the appellant is now in receipt of the maximum evaluation for limitation of motion. In fact, the evaluation would be consistent with no appreciable motion. As such, further discussion of Correia and DeLuca would serve no useful purpose and would not provide for a higher evaluation based upon limitation of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, the 40 percent rating adequately represents any functional impairment attributable to the disability at all relevant times. See 38 C.F.R. §§ 4.41, 4.10. Consideration has been given to assigning a rating under Diagnostic Code 5243, for degenerative disc disease based on incapacitating episodes rather than limitation of motion. However, the Veteran has not been diagnosed with degenerative disc disease, and there is no evidence of record indicating that the Veteran experiences incapacitating episodes which require medically prescribed bed rest. Therefore, a rating based on incapacitating episodes is not warranted, and the Veteran is properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a. The Board has also considered whether a separate rating for neurological findings is warranted. However, the medical evidence fails to show that a neurological disability has been diagnosed. In fact, the examiner determined that the Veteran did not have radiculopathy or other neurological impairment. Therefore, a separate rating for neurological manifestations is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. PTSD The Veteran has asserted that he should have a higher rating for his PTSD as his symptoms are worse than those contemplated by the currently assigned rating. The medical evidence of record reflects that the Veteran endorsed psychiatric symptomatology that included personal relationship issues; anxiety; chronic sleep disturbances; irritability; isolation; disturbances of mood and motivation; suicidal ideation; and homicidal ideation. Of record is an August 2015 VA treatment record indicating the Veteran cancelled two PTSD group appointments. During the phone conversation, the Veteran was noted to become angry, talking loudly, demanding, and cursing on the phone. He was noted to become very angry and upset and voiced suspicion. In July 2016 the Veteran was afforded a VA examination. At that time, the Veteran endorsed the following symptoms: anxiety; suspiciousness; chronic sleep impairment; and disturbances of motivation and mood. He reported he was never married, and that he lived with his mother. He stated he had been staying with her since March 2016. He reported he was in an auto accident in November of 2015, and that he was diagnosed with a brain bleed and underwent subsequent brain surgery due to that accident. He stated his hobbies were spending time with family and walking to the store in the morning to drink coffee. He denied any social meetings. He stated he was last employed in 2000 and was unable to work due to his back, leg, and shoulder pain. The Veteran was able to perform simple chores and ADLs without assistance. He reported he stopped drinking and using drugs before his brain surgery, and that he had not used any substances since March 2016. The examiner opined that the Veteran’s PTSD manifested in occupational and social impairment with reduced reliability and productivity. Of record is a December 2016 VA treatment record indicating that the Veteran reported recent passive suicidal ideation and recent homicidal ideation without intent. Homicidal ideation was directed toward the Veteran’s older sister. The Veteran stated the thoughts had passed. For the entire appeal period, the Veteran has been shown to have symptoms of anxiety, extended periods of unemployment, interpersonal relationship issues; suicidal ideation; and homicidal ideation. Specifically, the Veteran’s psychiatric symptomatology has consistently been shown to have major effects within his relationships, affecting both professional and personal relationships. In this regard, the Veteran was shown to have periods of unemployment. Moreover, the Veteran indicated interpersonal issues with his sister manifesting in homicidal ideation. Further, the Veteran’s symptoms have been relatively consistent throughout the entire period on appeal. Therefore, the Board finds that entitlement to a 70 percent rating is warranted for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning a higher rating for the appeal period. However, there is no indication from the record that the Veteran’s PTSD results in total social and occupational impairment. The Veteran has not exhibited hallucinations, delusions, or significant cognitive impairment. The Veteran generally did not exhibit delusions or hallucinations. He did not present with impairment in speech, thought content, orientation, hygiene, or upkeep of appearance. Moreover, the medical evidence of record indicates the Veteran actively participated in mental health treatment. Accordingly, there is no indication from the record that the Veteran’s symptoms were so severe as to cause total occupational and social impairment. Therefore, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Codes 9411. The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, and the mental health treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD for the entire period on appeal. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment with deficiencies in most areas sufficient to warrant a 70 percent rating for the entire period on appeal even though all the specific symptoms listed for that rating are not manifested. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56 (1990). REASONS FOR REMAND Service Connection – Sleep Apnea The Board finds additional development is required before the remaining claim on appeal can be decided. A review of the record shows the Veteran was afforded a VA examination for his sleep apnea in July 2015. At that time, the VA examiner diagnosed obstructive sleep apnea. The examiner then opined the Veteran’s sleep apnea is less likely as not secondary to his asthma as there is “no medical literature showing a relationship of asthma and sleep apnea,” nor does the Veteran’s asthma aggravate his sleep apnea as “asthma medically does not aggravate sleep apnea.” The Board finds the July 2015 VA medical opinion inadequate to adjudicate the claim. In this regard, the VA medical opinion does not adequately provide supporting rationale. Moreover, the VA medical opinion does not provide an opinion as to direct service connection. Thus, the Board concludes that the Veteran should be afforded another VA examination to determine the nature and etiology of any current sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claim currently on appeal. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s sleep apnea. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is etiologically related to service. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused by or chronically worsened by any service-connected disability. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel