Citation Nr: 18159694 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-49 423 DATE: December 20, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for the Veteran’s cervical spine disability is denied. Entitlement to a disability rating of 50 percent for the Veteran’s post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a rating in excess of 10 percent for the Veteran’s back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At worst, the Veteran’s forward flexion of the cervical spine was 25 degrees. 2. The Veteran’s PTSD manifested as occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the Veteran’s cervical spine disability have not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1 4.16, 4.45, 4.59, 4.71a, Diagnostic Code 5241 (2018). 2. The criteria for an evaluation of 50 percent for the Veteran’s PTSD have met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1 4.16, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board acknowledges the Veteran made a general argument regarding the VA’s duty to notify. Specifically, the Veteran argued that the VA failed to fulfill its duty to assist by not adding the private medical records relating to his back disability. The Board has addressed this contention in the Remand section below. With respect to the claims being decided, neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Cervical Spine Disability The Veteran’s cervical spine disability is rated under Diagnostic Code 5241. 38 C.F.R. § 4.71a (2018). Under this Diagnostic Code a 20 percent rating is warranted with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasms or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted with forward flexion of the cervical spine at 15 degrees or less or there is favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted with unfavorable ankylosis of the entire cervical spine or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. Last, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Under the rating criteria, forward flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees, and rotation to 80 degrees, are considered normal range of motion of the cervical spine. Id. at Plate V. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is immobility of the joint in a fixed position). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2018); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran’s December 2013 VA treatment record noted his worsening neck pain. He reported pain with prolonged sitting and turning, specifically when he was checking his blind spot while driving. The doctor noted the Veteran’s neck disability caused decreased range of motion, endurance, and activity tolerance. The Veteran received a VA examination in October 2014. He reported neck pain when turning his head and lying down. He stated he had sharp pain in his shoulder blade, but denied having flare ups. The Veteran’s initial range of motion was as follows: flexion to 25 degrees without pain, extension to 20 degrees without pain, right lateral flexion to 30 degrees without pain, left lateral flexion to 30 degrees without pain, right lateral rotation to 25 degrees without pain, and left lateral rotation to 25 degrees without pain. The examiner noted the Veteran’s spinal fusion should not result in loss of range of motion per se and there was adequate compensation from other joints. The examiner also stated that the degree of range of motion exhibited at the examination “…appears to this examiner, to be significantly incongruent to history and imaging results, and may be related more to fear of pain rather than actual limitation of range.” The Veteran did repetitive testing with no additional loss in his range of motion. He experienced functional loss in the form of less movement than normal and pain. The Veteran did not have localized tenderness, spasms, abnormal gait, abnormal spinal contour, or guarding. He did not have ankylosis, neurological abnormalities, or decreased sensation. The Board notes the VA examiner did not provide an opinion as to how the DeLuca factors would impact the Veteran’s range of motion during flare ups or after repetition. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, as previously noted, the Veteran denied experiencing flare ups and had no additional loss in range of motion after repetitive testing. The Board finds the Veteran’s disability picture is best captured by a 20 percent rating. His flexion was at worst 25 degrees. Additionally, at no point during the appeal period did the Veteran have favorable ankylosis of the entire cervical spine. Further, even though the VA examiner suspected that the ranges of motion measured at the examination may document limitation in excess of what is actually experienced, the Board has used these measurements in its decision. Therefore, the Veteran’s range of motion does not meet the requisite threshold for a rating higher than 20 percent. In addition to considering the Veteran’s range of motion measurements, the Board also considers the Veteran’s lay statements and the evidence of functional loss due to pain. Here, the Board notes the Veteran’s competent, credible lay statements that he experiences pain on motion and the VA examiner’s report that he experiences less movement than normal. However, the functional loss experienced by the Veteran does not equate to a disability picture higher than 20 percent. The provisions set forth in 38 C.F.R. §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Accordingly, the Board concludes the preponderance of the evidence shows the Veteran’s disability picture is best captured by the 20 percent rating even when taking into account functional loss due to the Veteran’s pain. The Board also considers the Veteran’s statement that a separate rating is warranted for spinal fusion. The Board cannot separately grant service connection for the Veteran’s cervical spinal fusion when the Veteran is already service connected for his neck disability. To separately compensate a veteran for the same symptoms of another service-connected disability would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (2018). Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran has not put forth any lay evidence that his spinal fusion has caused additional symptoms that are not already contemplated by the disability rating under Diagnostic Code 5241. Accordingly, to separately service connect the Veteran would constitute impermissible pyramiding. The Veteran’s attorney argued that the Veteran’s neck pain is a “stand alone” disability under Saunders v. Wilkie, 886 F.3d 1356 (2018) and therefore an increased rating is warranted. With regard to Saunders, this case addressed whether pain combined with functional impairment of earning capacity may be considered as a disability for the purposes of establishing basic service connection. It did not pertain to whether pain and functional impairment of earning capacity may be assigned a separate rating apart from the already service-connected disability that causes the pain. His attorney asserted that the RO impermissibly ignored the Veteran’s reports of painful motion in its denial of a higher rating. As discussed above, the Board has considered painful motion in this decision. As noted, painful motion and other types of functional loss are considered as set forth in 38 C.F.R. §§ 4.40 and 4.45. Even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d at 785. 2. PTSD The Veteran’s PTSD is evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2018). PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2018). Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decreased 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 (2018). Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran’s VA records from 2013 and 2014 document his treatment for PTSD. In October 2013, the Veteran reported having suicidal thoughts “…in the past couple w[ee]ks.” In November 2013, the Veteran reported passive suicidal ideations such as thinking “what if I wasn’t here or hadn’t made it out of Iraq.” However, he denied any suicidal intentions, thoughts, or plans. He also reported having nightmares and feelings of irritability. He demonstrated deficits in immediate and delayed recall. Likewise, he reported feeling forgetful and having difficulties processing information. The Veteran worked part-time as a substitute teacher and coached children’s sports. He wanted to get his teaching certificate and coach high school sports. The Veteran received a VA examination in May 2014. The examiner considered the Veteran’s overall level of impairment as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks during periods of significant stress. The Veteran reported enjoying his job as a substitute teacher and remained active in supporting in his children’s activities. He had depression, anxiety, and chronic sleep impairment. There was no evidence of suicidal ideation, homicidal ideation, or psychosis. He had feelings of anhedonia, disappointment, discouragement, and sadness. The Board finds an increase in the Veteran’s rating to 50 percent is warranted, especially due to his frequent irritability, which is triggered by interactions with his children when he feels that they do not listen to him. The Board considers the Veteran’s report of passive suicidal ideation in determining an increase. However, the Board finds his past passive suicidal ideation was not of sufficient frequency, severity, or duration to warrant a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). First, there is no evidence the Veteran has continued to have suicidal ideation since November 2013; instead, the most recent VA examiner noted the lack of suicidal ideation. A November 2013 VA treatment record noted that the Veteran denied suicidal ideation. A VA treatment record from May 2014 noted a lack of suicidal ideation. The Veteran’s attorney asserts that suicidal ideation was documented in February 2014 VA treatment records. VA treatment records from February 2014, including mental health treatment records, note that the Veteran had suicidal ideation “in the past” but did not report it at the time of treatment. A report of suicidal thoughts twice over the entire appeal period does not rise to a level of frequency, severity, or duration such that deficiencies in most areas exists. The Board also notes that self-harm is contemplated by the 100 percent criteria, and is different from the presence of ideation. Id. When the Veteran endorsed suicidal ideation, the record shows he had no intention, thoughts, or plans to harm himself. Additionally, there is no medical or lay evidence in the record to suggest the Veteran has been at risk of self-harm or harm to others during the appeal period. Furthermore, the Board finds the evidence does not show the Veteran has other PTSD symptoms that would warrant a 70 percent rating. The Veteran has no psychoses or hallucinations. The evidence does not suggest that he prefers to remain isolated. He reported he enjoyed being with his children’s activities and teaching. The Board concedes the evidences shows the Veteran has some cognitive impairment that may impede his ability to satisfactorily complete his teaching certification. Nevertheless, even considering the totality of the Veteran’s PTSD symptoms, the Board finds the Veteran does not demonstrate occupational and social impairment with deficiencies in most areas. Socially, he is able to interact with his wife, and talks to her about his feelings as a means of support. They have been married since 2001. He also enjoys spending time with his children and has good relationships with them except when he feels that they do not listen to him. Significantly, he did volunteer work with underprivileged children. Additionally, his judgment has not been impaired. VA treatment records consistently describe it as “fair to good.” Thus, the Board concludes the Veteran’s disability is best contemplated by a 50 percent rating. REASONS FOR REMAND 1. Back Disability VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). In an August 2018 statement, the Veteran identified relevant outstanding private treatment records from Oak Leaf Family Chiropractic in Jacksonville, Florida. A remand is required to allow VA to obtain authorization and request these records. 2. TDIU Because a decision on the remanded issue of entitlement to an increased rating for the Veteran’s back disability could impact a decision on the issue of TDIU, the issues are inextricably intertwined. Therefore, a remand of the TDIU claim is required. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Oak Leaf Family Chiropractic. If the Veteran completes the form, attempt to obtain the authorized records from Oak Leaf Family Chiropractic. All negative responses must be documented and the Veteran must be notified of such. 2. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined TDIU claim. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel