Citation Nr: 18160751 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-03 776 DATE: December 27, 2018 ORDER Entitlement to a rating in excess of 40 percent for status post herniated disc, lumbar spine, with left lower extremity (LLE) sciatica (hereinafter lumbar spine disability) is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than July 24, 2015 for the grant of 70 percent rating for PTSD is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability has been manifested primarily by back pain, muscle spasms, guarding, and decreased flexion to no less than 40 degrees; however, it was not productive of ankylosis or Intervertebral Disc Syndrome (IVDS). 2. From July 24, 2015, the Veteran’s PTSD did not result in manifestations that most nearly approximate total occupational and social impairment due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 3. The Veteran filed his most recent increased rating claim for PTSD on July 24, 2015. 4. It is not factually ascertainable within one year prior to the July 24, 2015 increased rating claim that a higher rating for PTSD was warranted. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.71a, Diagnostic Code (DC) 5243. 2. From July 24, 2015, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.126, 4.130, DC 9411. 3. The criteria for an effective date earlier than July 24, 2015 for the grant of a 70 percent rating for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to October 1969. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 40 percent for lumbar spine disability The spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating IVDS based on incapacitating episodes. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by and treatment by a physician. Schedular disability ratings are assigned for the spine from 100 percent to 10 percent according to the formulas as follows: Under the General Formula, a 40 percent rating contemplates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. Ankylosis is defined in 38 C.F.R. § 4.71a, Note 5, as follows: “For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.” In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). Analysis The Veteran contends that his lumbar spine disability is more severe than the rating depicts. From July 2014, the Veteran was seen at the Providence RI VAMC. The Veteran complained of back pain. However, his back pain was very mind, and the Veteran was able to function. In October 2016, it was noted that the Veteran used a cane for walking and balancing. In October 2015, the Veteran was afforded a VA examination to determine the severity of his lumbar spine disability. The Veteran stated that his back condition had gotten worse since his last VA examination. He stated that he had a constant dull pain in his back which became worse when he worked and/or performed strenuous physical activity. The examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran stated that working and going up and down ladders flared-up his condition. He reported functional loss or functional impairment of the thoracolumbar spine, to include constant dull and/or sharp pain on strenuous activities. The Veteran’s range of motion (ROM) was abnormal. Forward flexion was from zero to 50 degrees; extension from zero to 15 degrees; and right and left lateral flexion and rotation were all from zero to 20 degrees. The ROM itself contributed to functional loss, i.e., it impacted repetitive bending. Pain was noted on forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. The pain caused functional loss. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, i.e., the Veteran experienced lumbar spine tenderness to deep palpation. The Veteran was able to perform repetitive use testing with at least three repetitions. He was examined immediately after repetitive use over time. After three repetitions, pain, fatigue, weakness, and lack of endurance caused additional function loss. Additionally, pain, fatigue, weakness, and lack of endurance significantly limited the Veteran’s functional ability with repeated use over a period of time. After three repetitions and after repeated use over time, forward flexion was from zero to 40 degrees; extension from zero to 10 degrees; and right and left lateral flexion and rotation were all from zero to 15 degrees. The exam was not conducted during a flare-up; therefore, the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner noted that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups. During flare-ups, the Veteran’s forward flexion was from zero to 40 degrees; extension from zero to 10 degrees; and right and left lateral flexion and rotation were all from zero to 15 degrees. He experienced guarding or muscle spasm which resulted in abnormal gait or abnormal spinal contour. The Veteran’s disability also caused interference with sitting and standing. He had normal muscle strength with no muscle atrophy. His reflex and sensory exams were normal. Straight leg raising test was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not experience ankylosis, IVDS, or any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). The Veteran occasionally used a cane as a normal mode of locomotion. There were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the Veteran’s back condition or to the treatment of back condition. Functioning was not so diminished that no effective function remained other than that which would be equally served by an amputation with prosthesis. Imaging revealed degenerative arthritis. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The Veteran’s condition impacted his ability to work. The Veteran stated he worked part-time as an electrician, and he had increased difficulty climbing ladders, lifting, and carrying heavy object, and with work requiring repetitive bending. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine disability. As previously noted, a 50 percent disability rating is warranted if there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242. There is no evidence on record that the Veteran suffers from ankylosis, favorable or unfavorable. Therefore, under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran is not entitled to a rating in excess of 40 percent. The Board has also considered whether an increased evaluation could be assigned based on functional loss due to the Veteran’s subjective complaints of pain, weakness, and fatigue. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran already receives the maximum disability rating available for limited motion in the lumbar spine absent ankylosis. In addition, none of the medical evidence suggests that the severity of his service-connected back disability is the functional equivalent of ankylosis. Notably, the VA examination has demonstrated that the Veteran had ROM in his lumbar spine, even with Deluca considerations. Additionally, the Veteran’s medical treatment records noted that even with his back condition, the Veteran was able to function. As such, he is not entitled to a higher rating under the General Rating Formula for limitation of spine movement. See 38 C.F.R. § 4.71a, DC 5243. Under the formula for rating IVDS based on incapacitating episodes, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The VA examiner noted that the Veteran did not have IVDS. As such, a disability rating of 60 percent is not warranted. Finally, the Board has considered whether separate ratings are warranted for other neurologic abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). However, the evidence does not show any objective neurologic abnormalities associated with the Veteran’s lumbar spine disability. With respect to conducting a rating examination relative to joint dysfunction, the Court held that a VA examination of the joints must, wherever possible, include the results of the ROM testing described in the final sentence of § 4.59 which are tests as to pain on active and passive motion, including weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-70. In this case, the relevant VA rating examination did test for pain on motion. As to weight-bearing, it must be noted that all tests of spinal motion are done while in a weight-bearing status inasmuch as the only means of testing nonweight-bearing is if the examined is either supine or prone, in which case testing of ROM in all planes is simply not possible. Similarly, the spine is a single group of joints and, as such, there is no opposite joint, much less an undamaged opposite joint. Thus, the holding in Correia is not applicable. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s lumbar spine disability. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinions and other medical evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner’s findings and other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Therefore, the Board finds that the preponderance of the evidence is against finding that the Veteran’s disability picture more nearly approximates a rating in excess of 40 percent. 2. Entitlement to a rating in excess of 70 percent for PTSD The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 70 percent rating is warranted for 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability 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. Id. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms that follow the phrase are not intended to constitute an exhaustive list, but instead are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). VA shall assign an evaluation 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 the disability at the moment of examination. Id. When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Analysis The Veteran contends that his PTSD is more severe than the rating depicts. In October 2015, the Veteran was afforded a VA examination to determine the severity of his PTSD. The Veteran lived with his wife, daughter, daughter’s boyfriend, and two-year-old granddaughter. The Veteran stated that his marriage was “not really good.” However, he got along “fine” with his daughter and had friends he saw at a sports bar every other day. The examiner confirmed the Veteran’s PTSD diagnosis. The Veteran had more than one mental disorder diagnosed. The examiner noted that it was possible to differentiate what symptoms were attributable to each diagnosis. The Veteran arrived 15 minutes late for his examination. He was casually dressed and appropriately groomed. He was oriented times three. He was cooperative and maintained good eye contact throughout the examination. His mood was irritable and dysphoric. The Veteran’s affect was congruent with his mood. He was tearful when discussing his PTSD symptoms. His thought process was linear. There was no evidence of psychosis, and he denied suicidal ideation. The Veteran reported recurrent, involuntary, and intrusive distressing memories of the traumatic event and recurrent distressing dreams in which the content and/or affect of the dream were related to the traumatic event. The Veteran experienced dissociative reactions (e.g., flashbacks) in which he felt or acted as if the traumatic event were recurring. He had marked physiological reactions and intense or prolonged psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event. He avoided or made efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event. He also avoided or made efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event. He had persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame) and feelings of detachment or estrangement from others. The Veteran exhibited irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. He was reckless or exhibited self-destructive behavior. The Veteran was hypervigilant and had exaggerated startle response. He had restless sleep or difficulty falling or staying asleep. The duration of the above symptoms lasted more than one month and caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The disturbance was not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition. The other symptoms attributable to the Veteran’s PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran stated that he actively snorted cocaine three to four times per week. He drank up to two drinks of alcohol per night, but he did not drink to get drunk. He denied problems associated with alcohol use. He also reported smoking marijuana infrequently. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner stated that it was difficult to indicate what portion of the described level of occupational and social impairment was attributable to each diagnosis without resorting to speculation. The Veteran was capable of managing his financial affairs. In October 2016, the Veteran saw a Clinical Psychologist. The Veteran was appropriately dressed and groomed. He was pleasant and cooperative and made good eye contact. There were no psychomotor abnormalities. The Veteran’s speech was of a normal rate, volume, tone, and prosody. His mood and affect were generally euthymic. The Veteran’s thought process was linear and goal-directed. There was no evidence of ruminations and delusions. He denied perceptual disturbances and suicidal and homicidal ideations. The Veteran was oriented to person, place, and time. His concentration, memory, insight, and judgment were grossly intact. On his “Current Suicide/Homicide Risks” evaluation, the Veteran noted that he never attempted suicide in the past. He stated that during the past month, he had not had any thought of attempting suicide nor did he attempt suicide. He further stated that he had never tried to seriously harm someone else in the past or had any thoughts about harming someone else. The examiner stated that the Veteran’s risk of suicide and violence were low. Based on the evidence of record, the Board finds that the VA examination report and the medical evidence of record provide highly probative evidence against a rating in excess of 70 percent. The maximum rating of 100 percent requires total occupational and social impairment and at no point did the VA examiner or the Veteran’s treating psychologist find that the Veteran’s PTSD caused total occupational and social impairment, as is required for the assignment of a 100 percent rating. The Board notes that the VA examiner indicated that the Veteran experienced depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation, difficulty in establishing and maintaining effective work and social relationships. The Veteran stated that he actively snorted cocaine three to four times per week, drank up to two drinks of alcohol per night, but he did not drink to get drunk, and smoked marijuana infrequently. However, the VA examiner and the Veteran’s psychologist noted that the Veteran was oriented times three. His thought process was linear, there was no evidence of psychosis, and the Veteran denied suicidal and homicidal ideations. The VA treatment records noted that the Veteran’s concentration, memory, insight, and judgment were grossly intact. The examiner stated that the Veteran’s risk of suicide and violence were low, and there was no evidence of ruminations and delusions. The Board also notes that the VA examiner specifically described the Veteran’s symptoms as occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, which fits squarely for the criteria for a 30 percent evaluation under the General Rating Formula. Even though this description actually corresponds with a lesser disability rating, the Board will not disturb the current 70 percent disability rating. However, a rating in excess of 70 percent is clearly not available based on these findings. Thus, for all the foregoing reasons, the Board finds that a rating in excess of 70 percent from July 24, 2015 for PTSD is not warranted. 3. Entitlement to an effective date earlier than July 24, 2015 for the grant of 70 percent rating for PTSD Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). The effective date of an increase may be the earliest date as of which it is factually ascertainable that an increase occurred if a claim is received within one year from such date, otherwise the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Thus, there are three possible effective dates for an increased rating or depending on the facts of the case. If an increase in disability occurred after the claim was filed, the effective date will be the date that the increase is shown to have occurred (date entitlement arose). If an increase in disability preceded the claim by a year or less, the effective date will be the date that the increase is shown to have occurred (factually ascertainable). If an increase in disability preceded the claim by more than a year, the effective date will be the date that the claim is received (date of claim). In all cases, a specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Effective March 24, 2015, the regulations governing standard claims and appeals forms was replaced. See 38 C.F.R. § 3.155. Prior to that effective date, the regulation permitted informal claims, to include a report of VA treatment or hospitalization. See 38 C.F.R. § 3.157. Analysis The Veteran contends that he is entitled to an effective date earlier than July 24, 2015, for the grant of a 70 percent disability rating for PTSD. The Board notes that the Veteran’s claim for increased rating was received on July 24, 2015; therefore, the relevant time frame for review starts one year prior to the receipt of the claim. Prior to July 24, 2015, there were no pending, unadjudicated formal or informal claims for increase rating for PTSD. In its November 2015 rating decision, the agency of original jurisdiction (AOJ) granted an increase rating and assigned an effective date of July 24, 2015 for the grant of a 50 percent disability rating. The AOJ assigned an effective date of July 24, 2015 based on the date of receipt of the claim for increase. The Veteran appealed, and in its November 2016 rating decision, the AOJ granted an increase rating and assigned an effective date of July 24, 2015 for the grant of a 70 percent disability rating. The effective date assigned was based on the date of receipt of the increased evaluation as preserved by the appellate process. The Board notes that there is no evidence within one year of the Veteran’s July 24, 2015 claim that shows that a higher rating was warranted for PTSD. In fact, the VA examination report notes that the Veteran was last in mental health treatment in February 2012. The Veteran was assessed by a substance abuse treatment program (SATP) in January 2014 and the PTSD clinic in February 2014, but he declined treatment. As such, the Board finds that it was not factually ascertainable that the Veteran’s PTSD met the criteria for a 70 percent rating effective one year prior to his July 24, 2015 increased rating claim. Therefore, July 24, 2015 is the proper effective date for the grant of 70 percent rating for PTSD, as indicated above. For the reasons discussed above, the preponderance of the evidence is against the Veteran’s claim. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael Lane Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD