Citation Nr: 18153783 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-28 078 DATE: November 29, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for lumbar strain is denied. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder, to include: chronic adjustment disorder with anxiety and posttraumatic stress disorder (PTSD); depression; and anxiety (hereinafter referred to as an acquired psychiatric disorder), is denied. FINDINGS OF FACT 1. Even in consideration of her complaints of pain and functional loss, there is no evidence that the Veteran’s lumbar strain disability results in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; and, there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The Veteran’s acquired psychiatric disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, panic attacks, mild memory loss, trouble sleeping, irritability, and loss of interest. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.10, 4.40, 4.71a, Diagnostic Code 5237 (2018). 2. The criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder, to include: chronic adjustment disorder with anxiety and PTSD; depression; and anxiety, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from August 2002 to September 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision (RD) of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the present disability. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102; 38 C.F.R. § 4.3. 1. Entitlement to a disability rating in excess of 10 percent for lumbar strain When rating a disability, the rating agency shall consider all the evidence of record and assign a rating based on the level of functional impairment. The basis of disability evaluations is the ability of the body as a whole, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10. The Veteran is currently rated as 10 percent disabled for lumbar strain. Under 38 C.F.R. § 4.71a, Diagnostic Code 5237: A 10 percent disability rating is assigned when a veteran’s forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned when a veteran’s forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 disability rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned when a veteran’s unfavorable ankylosis of the entire thoracolumbar spine. Analysis A March 2014 VA examination noted that there had been no reported treatment due to the claimed condition during the preceding 12 months of this examination. A lumbar X-ray revealed the following: minimal narrowing of the L5-S1 disc space; no fracture or dislocation; remainder disc space heights were normal; and evidence of mild functional limitation. The diagnosis was a lumbar strain. Range of motion (ROM) testing revealed: forward flexion to 75 degrees with no objective evidence of painful motion; extension to 20 degrees with no objective evidence of painful motion; right lateral flexion to 25 degrees with no objective evidence of painful motion; left lateral flexion to 25 degrees with objective evidence of painful motion beginning at 25 degrees; right lateral rotation to 20 degrees with no objective evidence of painful motion; left lateral rotation to 20 degrees with objective evidence of painful motion beginning at 20 degrees. The combined ROM totaled 185 degrees. ROM testing addressed repetitive use and the examiner did not state in his remarks that he witnessed the Veteran experience any “flare-ups.” 38 C.F.R. § 4.71(a); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). There are no treatment records documenting loss of range of motion worse than those records at the March 2014 examination. Further, while there is some indication the Veteran had muscular spasm of the lumbar area, there were no findings of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The findings of the foregoing do not support the assignment of a higher rating. There is no evidence that the Veteran’s lumbar strain disability results in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees. There is likewise no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board’s analysis now turns to whether the Veteran has suffered “functional loss” as a result of her lumbar strain. “[F]unctional loss... may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.” 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran contended that she was unable to sit or stand for periods longer than approximately 30 minutes, that she had difficulty bending, and that she could not lift more than approximately 10 pounds due to her back condition. The Board acknowledges that it is required to consider all the evidence of record, including both lay and medical evidence when making competence, credibility, and weight determinations. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to convey that which comes to her through her senses, she is not competent to make the determination or diagnosis that her lumbar strain is sufficiently severe enough to justify a rating increase to 20 percent. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue here falls outside the realm of common knowledge of a normal person. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s lay statements indicate that she suffers pain, but none of her statements indicate that she is unable to work due to her low back pain. She does state that her low back pain keeps her performing her job duties to her fullest potential without the assistance of special accommodations. She also stated that it is difficult for her to sit or stand for long periods, and that she has difficulty bending. While the Board takes the Veteran’s description of her symptoms are found competent, the VA examiner is shown to have considered her complaints in assessing her overall level of disability. The medical findings in this case directly address the criteria under which this disability is evaluated and the objective medical evidence is accorded greater weight than the subjective complaints of increased symptomatology. The statements are not afforded as much weight as the objective medical findings contained within the record The claim for entitlement to a disability rating in excess of 10 percent for lumbar strain is denied. 2. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder, to include: chronic adjustment disorder with anxiety and PTSD; depression; and anxiety The Veteran is currently rated as 30 percent disabled for her acquired psychiatric disorder, under 38 C.F.R. § 4.130, Diagnostic Code 9440. She contends that her disorder is greater than currently contemplated by her assigned disability rating. When rating a medical disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. The rating agency shall 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 will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, Diagnostic Code 9440: A 30 percent rating is assigned when a veteran’s psychiatric disorder 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when a veteran’s psychiatric disorder 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-term 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. A 70 percent evaluation is assigned when a veteran’s psychiatric disorder 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 worklike setting); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran’s psychiatric disorder 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. 38 C.F.R. § 4.130. Analysis The use of the term ‘such as’ in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that “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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. A VA examination was conducted in July 2012. The VA examiner noted that the Veteran’s scores on the behavioral screening test suggested, “that her overall quality of life is not significantly or negatively impacted by perceived physical and mental health problems.” The Veteran stated during this exam that she could only concentrate for approximately 30 minutes at a time. The Veteran was employed at the time of her 2012 VA examination. Her role was processing bills as well as service inquiries for a telephone company. It was also evidenced by this report that the Veteran maintained social relationships with her family, friends, and had a significant other. During a March 2014 VA examination, the Veteran noted that she suffered a seizure in February 2014, which she contends has led to an exacerbation of symptoms as it relates to her “adjustment disorder with mixed anxiety and depressed mood.” This seizure resulted in a loss of the Veteran’s driving privileges, which in turn, caused her to lose her job as a corrections officer. The VA examiner stated that the cause of the seizure was unknown. The Veteran’s symptoms were as follows: depressed mood, panic attacks weekly, mild memory loss, trouble sleeping, irritability, agitation, and general loss of interest due to her job loss. The VA examiner noted that the Veteran was appropriately dressed and groomed; cooperative; awake and alert; oriented to person, place, time, and situation; intact judgment and insight; depressed mood with congruent affect; spontaneous speech with regular rhythm, rate, and volume; and denied suicidal or homicidal ideations. The VA examiner noted that her symptoms seem to improve when she is working. With regard to the Veteran’s occupational and social impairment, the VA examiner checked the box indicating “mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.” The VA examiner summarized that the Veteran’s seizure, which resulted in the loss of her driving privileges as well as her job as a corrections officer, caused her to become more depressed and anxious. The increased depression caused her to become more distant from her family, friends, and her significant other, and that, prior to her seizure, the Veteran was making significant improvements by working and going to school. The Veteran stated during this examination that her former boss told her that they would hire her back once her driving privileges were reinstated. The Veteran has not been taking her prescribed medication on a regular basis while the cause of the seizure is being determined. The Board notes that the Veteran is competent to attest to her symptoms and how she feels they have impacted her ability to perform her duties as a corrections officer as well as at school. Additionally, the Veteran is certainly competent to describe how her depressed mood affects her social relationships and her ability to focus at work because she is feeling distant from people. Jandreau, 492 F. 3d at 1372. Based on the evidence presented in the instant case, a higher disability rating is not warranted because the objective medical evidence does not rise to a level of total occupational and social impairment; occupational and social impairment, with deficiencies in most areas; or occupational and social impairment with reduced reliability and productivity. Mauerhan, 16 Vet. App. at 442. The March 2014 examiner noted that the “transient” nature of the Veteran’s exacerbated symptoms was brought about by the occurrence of an unexplained seizure in February 2014 and not the result of exacerbated symptoms associated with her service-connected psychiatric disorder. The Board takes all lay statements into consideration and affords a great deal of weight to a veteran’s statements regarding the symptomology that they are experiencing. Conversely, the Board in this case also acknowledges that the Veteran is not a medical professional, and she is not medically qualified to make the determination that the increase in her depressed mood is related to her psychiatric disorder. An unrelated, non-service-connected, exacerbation of the Veteran’s depressed mood does not constitute a worsening of her service-connected disability sufficient to warrant a rating increase. Barr v. Nicholson, 21 Vet. App. 303 (2007). With regard to “occupational and social impairment,” the VA examiner’s remarks contain phrases such as: “mild or transient symptoms;” “decreased work efficiency and ability to perform occupational tasks only during periods of significant stress;” “depressed mood, anxiety, panic attacks (weekly or less often), mild memory loss.” These types of symptoms do not rise to a level severe enough to warrant a rating increase to 50 percent. Based upon the evidence of record, the Board finds that the Veteran’s service-connected psychiatric disorder is manifested by no more than 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. The pertinent evidence shows and is reflected in the VA examiner’s remarks that the Veteran appeared “relatively happy” and her “mental health had improved” over the course of this appeal, except for when she suffered an unrelated seizure. This event caused her to temporarily lose her driving privileges and resulted in the loss of her job as a corrections officer. There is not enough probative evidence in the record to demonstrate an occupational and social impairment with reduced reliability and productivity due to the Veteran’s psychiatric disorder. Here, the VA medical reports are found to be adequate and persuasive, and the evidence suggests that the Veteran’s current disability rating of 30 percent is most appropriate. The medical findings in this case directly address the criteria under which this disability is evaluated and the objective medical evidence is accorded greater weight than the subjective complaints of increased symptomatology. The Veteran is competent to report the symptoms that she is experiencing, but not to identify a specific level of disability. The preponderance of the evidence is against the Veteran’s claim for an increased rating for her acquired psychiatric disorder. Therefore, the claim for entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder is be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Meiners