Citation Nr: 18157474 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 10-43 561 DATE: December 12, 2018 ORDER From July 3, 2008, to February 18, 2015, an initial rating of 70 percent, but no higher, for posttraumatic disorder is granted. From October 14, 2010, to March 21, 2017, an increased disability rating of 20 percent, but no higher, for the Veteran’s lumbar spine disability is granted. From July 3, 2008, to February 7, 2012, a total disability rating based on individual unemployability is granted. FINDINGS OF FACT 1. From July 3, 2008, to February 18, 2015, the Veteran’s posttraumatic disorder (PTSD) was shown to have caused occupational and social impairment with deficiencies in most areas; however, complete occupational and social impairment was not shown prior to February 18, 2015. 2. From October 14, 2010, to March 21, 2017, the Veteran’s forward flexion was functionally limited to greater than 30 degrees but not greater than 60 degrees; however, at no point during the course of the Veteran’s appeal has range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., shown forward flexion of the Veteran’s thoracolumbar spine to be functionally limited to 30 degrees or less; has ankylosis of the spine been shown; or have incapacitating episodes having a total duration of at least four weeks during a 12 month period been shown. 3. From July 3, 2008, to February 18, 2015, the evidence of record makes it at least as likely as not that the Veteran’s service connected disabilities were of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From July 3, 2008, to February 18, 2015, the criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. From October 14, 2010, to March 21, 2017, the criteria for a rating of 20 percent for a lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. From July 3, 2008, to February 18, 2015, the criteria for a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from January 1962 to January 1982, to include service in the Republic of Vietnam. In connection with this appeal, the Veteran testified at a hearing before the undersigned in March 2014. A transcript of that hearing is of record. In February 2017, the Board denied a rating in excess of 30 percent for PTSD prior to February 7, 2012, granted a rating of 50 percent for PTSD from February 7, 2012, to February 18, 2015, and denied an increased rating for a lumbar spine disability, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court vacated the February 2017 Board’s decision and remanded the claims to the Board for action consistent with the Court’s decision. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Posttraumatic Stress Disorder The Veteran filed a service connection claim for PTSD on July 3, 2008. A January 2009 rating decision granted a service connection and assigned an initial noncompensable rating effective July 3, 2008. An August 2010 rating decision granted an increased rating of 30 percent effective July 3, 2008. A June 2015 rating decision granted a 100 percent rating effective February 18, 2015. The February 2017 Board decision denied a rating in excess of 30 percent from July 3, 2008, to February 7, 2012, and granted an increased rating of 50 percent from February 7, 2012, to February 18, 2015, which was effectuated by a February 2017 rating decision. The May 2018 CAVC decision vacated the February 2017 Board decision and found that the Board did not address the Veteran’s symptoms. Under the General Rating Formula for Mental Disorders, a 30 percent evaluation is assigned when a veteran’s mental disability 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 and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is assigned when a veteran’s mental disability 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 and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned when a veteran’s mental disability 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran’s mental disability 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; disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must 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 must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez Claudio v. Shinseki, 713 F.3d 112, 116 17 (Fed. Cir. 2013). In February 2010, the Veteran reported that he did not socialize with any friends or people outside his family. He reported that he could not stand to be around people and was unable to sleep at night. In October 2010, the Veteran’s wife reported that the Veteran did not do anything with people outside the family. At the March 2014 Board hearing, the Veteran testified that he was unable to deal with people. In December 2016, the Veteran was examined by psychologist John Atkinson, Jr. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the psychologist opined that it was at least as likely as not that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas from July 2008 to February 2015. The psychologist referred to the Veteran’s inability to establish and maintain effective relationships outside his family. The Veteran and his wife reported that the Veteran had no interactions with people outside his family. At the Board hearing, the Veteran testified that he was unable to deal with people. The private psychologist opined that that the Veteran’s PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas between July 2008 and February 2015. The reports of the Veteran and his wife and the opinion of the private psychologist are consistent with finding the Veteran’s PTDS resulted in occupational and social impairment with deficiencies in most areas. As such, the Veteran’s PTSD symptoms were consistent with a 70 percent rating from July 3, 2008, to February 18, 2015. However, as the Veteran has remained married and maintained relationships with other family members, total social impairment was not shown from July 3, 2008, to February 18, 2015, which would be consistent with a 100 percent rating. Accordingly, from July 3, 2008, to February 18, 2015, the Veteran is granted an initial 70 percent rating for his PTSD. Lumbar Spine Disability The Veteran filed an increased rating claim for his lumbar spine disability on October 14, 2010, which was denied by a June 2013 rating decision. The February 2017 Board decision denied the Veteran’s increased rating claim. The May 2018 CAVC decision vacated the February 2017 Board decision and found that the September 2015 VA examiner’s findings were inconsistent with the evidence of record. Lumbar spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12 month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12 month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not appear to show that the Veteran experienced any IVDS due to his lumbar spine disability. The March 2017 VA examiner indicated that the Veteran did not have IVDS. In addition, there is no evidence showing that the Veteran was prescribed any bed rest to treat his lumbar spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, 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 evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. The Veteran’s treatment records show that he received treatment for his lumbar spine disability. However, his treatment records do not describe the results of any range of motion testing. Likewise, there is no finding of any spinal ankylosis. In September 2015, the Veteran was afforded a VA examination. However, this examination will not be considered as the CAVC found the examination to be inconsistent with the evidence of record. As such, the Board will not consider the September 2015 VA examination. In March 2017, the Veteran was afforded a VA examination. He reported that he had constant pain and had difficulty changing positions. On examination, he demonstrated flexion to 45 degrees, extension to 15 degrees, left lateral flexion to 22 degrees, right lateral flexion to 17 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 25 degrees, all with pain. The examiner reported that the Veteran had function loss that included standing straight, standing still, stooping, bending, lifting, and carrying, but that pain did not result in any functional loss. The examiner indicated that there was evidence of pain with weight bearing. Repetitive use testing resulted in no additional limitation of motion. He retained normal 5/5 strength but for reduced 4/5 strength with hip flexion and knee extension. He had no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis of the spine. The March 2017 VA examination showed that the Veteran’s flexion was limited to 45 degrees. However, medical records do not show his flexion was functionally limited to 30 degrees or less or that he had has ankylosis of the spine. As such, from October 14, 2010, to March 21, 2017, the Veteran meets the criteria for a 20 percent rating based on limitation of flexion. However, a rating in excess of 20 percent is not warranted as the Veteran’s flexion was not limited to 30 degrees or less and ankylosis was not shown. The Board has 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. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran reported experiencing pain on range of motion testing. However, even if flexion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, while the Veteran reported increased pain, repetitive testing at the March 2017 VA examination did not result in additional limitation of motion. His rating was largely the result of the application of painful motion, as his demonstrated range of motion would not support a 40 percent rating. The Veteran’s medical record does not demonstrate any additional functional limitations, without which the assignment of a higher rating is not warranted. Accordingly, the schedular criteria for a rating of 20 percent for a lumbar spine disability from October 14, 2010, to March 21, 2017, have been met. Beginning March 21, 2017, the schedular criteria for a rating of 20 percent for a lumbar spine disability have been met. The Veteran’s claim is granted to that extent. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. In this case, an August 2017 Board decision granted a TDIU from February 7, 2012, to February 18, 2015, which was effectuated by a September 2017 rating decision, and remanded entitlement to a TDIU prior to February 7, 2012, on an extraschedular basis. However, as discussed more fully above, the Veteran meets the criteria for a 70 percent rating for PTSD, and as such, now meets the schedular criteria for a TDIU from July 3, 2008, to February 7, 2012. On his claim form (VA Form 21-8940), the Veteran indicated that his service connected disabilities prevented him from working. He indicated that he last worked fulltime in August 2006 in security. In February 2010, the Veteran reported that he did not socialize with any friends or people outside his family. He reported that he could not stand to be around people and was unable to sleep at night. In October 2010, the Veteran’s wire reported that the Veteran did not do anything with people outside the family. At the March 2014 Board hearing, the Veteran testified that he was unable to deal with people. In December 2016, the private psychologist opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment since 2006 as the Veteran struggled with irritability, would have difficulty working alongside coworkers, supervisors, or the general public without conflict, and had concentration problems. (Continued on the next page)   As such, the Board concludes that the evidence for and against TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and hold that TDIU is warranted from July 3, 2008, to February 7, 2012. As such, the Veteran’s claim is granted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel