Citation Nr: 18153514 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-17 023 DATE: November 28, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), to include as secondary to service-connected postoperative herniated disc L4-5 with implanted spinal cord stimulator (for substitution purposes) is denied. Entitlement to an evaluation of 40 percent, effective December 2, 2011, for postoperative herniated disc L4-5 with implanted spinal cord stimulator (for substitution purposes) is granted. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity (for substitution purposes) is denied. REMANDED Entitlement to service connection for a left leg disorder, to include as secondary to service-connected postoperative herniated disc L4-5 with implanted spinal cord stimulator (for substitution purposes) is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) (for substitution purposes) is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran did not have a psychiatric disorder. 2. During the period on appeal, postoperative herniated disc L4-5 with implanted spinal cord stimulator manifested in functional impairment limiting forward flexion to 30 degrees. 3. During the period on appeal, the Veteran’s radiculopathy of the right lower extremity manifested in no more than moderate, incomplete paralysis. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred or aggravated by service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. Effective December 2, 2011, the criteria for an evaluation of 40 percent, but not higher, for postoperative herniated disc L4-5 with implanted spinal cord stimulator were met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 3. The criteria for an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to April 1972. He died in January 2014. The Appellant is his surviving spouse and has been substituted for the Veteran for the purposes of processing the instant appeal to completion. The Veteran filed a November 2011 compensation claim for “depression secondary to service connected back.” The Board has expanded the Veteran’s compensation claim for depression to encompass other potentially acquired psychiatric disorders. Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). The Board notes that the Veteran was previously denied service connection for a nervous condition in an April 1974 rating decision and service connection for PTSD in a May 2010 rating decision. The Board notes that the RO denied the Veteran’s November 2011 compensation claim on the merits in the March 2012 rating decision on appeal, and did not treat the matter as a claim to reopen. To the extent that the prior unappealed rating decisions may be related to the current compensation claim on appeal, the Board has determined that new and material evidence is not necessary, as the compensation claim for depression is distinguishable from the previous compensation claims for a nervous disorder and PTSD. This is consistent with the RO’s determination. 1. Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), to include as secondary to service-connected postoperative herniated disc L4-5 with implanted spinal cord stimulator Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. 38 U.S.C. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where competent medical evidence indicates that the appellant does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As noted, the Veteran filed a December 2011 compensation claim for depression secondary to his service-connected back disorder. Pursuant to the Veteran’s claim, he was scheduled for a February 2012 VA psychiatric examination. After a complete psychiatric evaluation, the examiner determined that the Veteran did not have a diagnosable psychiatric disorder. The Veteran reported depressed mood, but the examiner concluded that the Veteran’s reported depression was mild and transient, which was situationally imposed and combined with bereavement. He did not meet the diagnostic criteria for a psychiatric disorder at the time of examination. A review of VA treatment records during the period on appeal (December 2, 2011 to the date of the Veteran’s death) does not indicate the diagnosis of any other psychiatric disorder. The Board notes that VA treatment records list PTSD in the problem list and contain some positive screening tests for PTSD, however, there is no indication that a diagnosis of PTSD was made during this period as a result of verified stressors, as explained in the unappealed May 2010 rating decision. The February 2012 VA examination did not indicate a diagnosis of PTSD. Depression screens during this period were negative. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the February 2012 VA examiner’s opinion as highly probative medical evidence on this point, in finding that the Veteran did not have a diagnosable psychiatric disorder. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician’s opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for an acquired psychiatric disorder. In the absence of a disability, compensation may not be awarded. In the absence of evidence of a psychiatric disorder during the period on appeal, there can be no grant of service connection under the law. See Brammer, supra. As discussed above, a VA examiner has opined that the Veteran did not have a psychiatric disorder and the most probative evidence shows that there is no such disorder during the period on appeal. The Board has considered the lay statements of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA has accepted that there were mild and transient depressive symptoms. However, the evidence does not show a diagnosable psychiatric disorder during the period on appeal. The probative medical evidence of record is afforded greater probative value than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) The preponderance of the evidence is against the Veteran’s claim and there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). 2. Entitlement to an evaluation in excess of 20 percent for postoperative herniated disc L4-5 with implanted spinal cord stimulator Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Pain may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Specific to the Veteran’s postoperative herniated disc L4-5 with implanted spinal cord stimulator, the Board has determined that a uniform 40 percent evaluation is appropriate for the entire period on appeal. The Veteran’s service-connected postoperative herniated disc L4-5 with implanted spinal cord stimulator was assigned a 20 percent evaluation under Diagnostic Codes 5242. The Veteran filed an increased rating claim on December 2, 2011. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The rating criteria further explain under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. The Veteran has a separate evaluation for associated neurological disabilities of the right lower extremity, as will be discussed below. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part), a 10 percent evaluation is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) for purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. At a February 2012 VA examination, forward flexion was documented at 40 degrees. Objective evidence of pain began at 30 degrees of flexion. Repetitive motion testing did not result in additional limitation of motion. There was not ankylosis. The examiner did document IVDS, however, there was no report of incapacitating episodes. After a review of VA treatment records, the Board has determined that a 40 percent evaluation is warranted for the entire period on appeal, dating back to the Veteran’s increased rating claim on November 22, 2011. A 40 percent evaluation is warranted in this instance for functional limitation due to pain resulting in forward flexion of 30 degrees, as documented at the February 2012 VA examination. An evaluation in excess of 40 percent is not warranted, as there is no evidence of ankylosis of the entire thoracolumbar spine or incapacitating episodes of at least 6 weeks during any 12-month period, or any incapacitating episodes consistent with Diagnostic Code 5243, note 1. The now assigned 40 percent evaluation is the maximum evaluation warranted due to limitation of motion of the spine in the absence of ankylosis, which has not been shown. 3. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of right lower extremity The Veteran’s radiculopathy of the right lower extremity has an initial evaluation of 20 percent under Diagnostic Code 8720, effective November 2, 2011. The Veteran challenged the initial evaluation. The Board has determined that the current uniform 20 percent evaluation is appropriate for the entire period on appeal. See Hart, supra; see also Fenderson, supra. Diagnostic Code 8520 is specific to the sciatic nerve. Under it, a 10 percent rating is assigned for mild, incomplete paralysis of the sciatic nerve. Moderate, incomplete paralysis is assigned a 20 percent rating. Moderately severe, incomplete paralysis is assigned a 40 percent rating. Severe, incomplete paralysis, with marked muscular atrophy, is assigned a 60 percent rating. Complete paralysis, in which the foot dangles and drops, no active movement is possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating. At the aforementioned February 2012 VA examination, the examiner documented mild radiculopathy of the right lower extremity. There was mild constant pain. There was not intermittent pain, paresthesias and/or dysesthesias, or numbness. A review of VA treatment records does not reveal radicular symptoms of the right lower extremity that are moderately severe or worse. Upon careful review of the evidence of record, the Board finds that the initial 20 percent evaluation for radiculopathy of the right lower extremity is appropriate. The preponderance of the evidence shows that radiculopathy of the right lower extremity did not manifest in moderately severe incomplete paralysis. Thus, an evaluation in excess of 20 percent is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left leg disorder, to include as secondary to service-connected postoperative herniated disc L4-5 with implanted spinal cord stimulator is remanded. After a review of the medical evidence of record, the Board has determined that a clarifying medical opinion is necessary in order to determine the etiology of the claimed left leg disorder. Specifically, a February 2012 VA medical opinion determines that radiculopathy of the bilateral lower extremities is proximately due to the service-connected back disorder. However, an addendum opinion states that the neurological symptoms in the Veteran’s left leg were not due to radiculopathy and thus were less likely than not related to his service-connected back disorder. However, the examiner provides no insight as to etiology of the Veteran’s left leg symptoms or disability, and does not address the February 2012 positive medical opinion. As a result, the Board finds that a clarifying medical opinion is warranted. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. The determination of the service connection claim for a left leg disorder could affect the determination of the TDIU claim. Hence, any action on the TDIU claim must be deferred on remand until the service connection claim is addressed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Return the claims file to a clinician of appropriate knowledge and expertise to determine the etiology of the claimed left leg disorder. Based on a review of the record, the reviewing clinician should: (a) Specify what left leg disorder the Veteran had. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any left leg disorder was caused by, or was aggravated by the service-connected back disorder. If the back disorder aggravated a left leg disorder, the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). A complete rationale for any opinion expressed should be provided in a report. 2. Readjudicate the Veteran’s claims. If the benefits sought on appeal are not granted, the Veteran should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel