Citation Nr: 1806399 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-14 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for dysthymia. 2. Entitlement to a disability rating in excess of 20 percent prior to February 12, 2013, and in excess of 40 percent thereafter, for a lumbar strain. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1981 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal had included a claim for TDIU; however, the Veteran is already in receipt of a TDIU from June 3, 2010, the date his application was received. Therefore, no further discussion of his entitlement to such a benefit is warranted in this case. An October 2005 rating decision awarded a 70 percent rating for the Veteran's dysthymia disability effective April 12, 2001. A March 2013 rating decision awarded a 40 percent rating for the Veteran's lumbar spine disability effective February 12, 2013. FINDINGS OF FACT 1. For the entire timeframe on appeal, the Veteran's dysthymia was manifested by symptoms such as anxiety, depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and difficulty in adapting to stressful circumstances; all resulting in occupational and social impairment, with deficiencies in most areas. 2. Prior to February 12, 2013, the Veteran's back condition has been effectively manifested by limitation of forward flexion of the thoracolumbar spine, at its worst, to 35 degrees and at no time during the appeal period has it been productive of ankylosis or incapacitating episodes lasting four weeks or more. 3. From February 12, 2013, the Veteran's back condition has been effectively manifested by limitation of forward flexion of the thoracolumbar spine, at its worst, to 5 degrees and at no time during the appeal period has it been productive of ankylosis or incapacitating episodes lasting six weeks or more. CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a rating in excess of 70 percent for dysthymia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9433 (2017). 2. The criteria for a rating in excess of 20 percent prior to February 12, 2013, and 40 percent thereafter for the Veteran's back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson, 12 Vet. App. at 126. Dysthymic Disorder When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency 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. The Veteran's dysthymia has been evaluated using Diagnostic Code 9433 of 38 C.F.R. § 4.130, which sets forth criteria for evaluating dysthymic disorder using a general rating formula for mental disorders. Pertinent portions of the general rating formula for mental disorders are as follows: 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; memory loss for names of close relatives, own occupation, or own name............100 percent Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders.) Id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The Board notes that 38 C.F.R. § 4.130 has been revised to refer to the recently released DSM-5, which does not contain information regarding GAF scores. However, since much of the relevant evidence was obtained during the time period that the DSM-IV was in effect, the Board will still consider this information as relevant to this appeal. Furthermore, there is no indication that the Veteran's diagnosis would be different under the DSM-5. According to the DSM-IV, GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). A GAF score between 41 and 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job); a GAF score between 51 and 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers); a GAF between 61 and 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships; a GAF between 71 to 80 is indicative that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). The Veteran contends that his dysthymia warrants a rating in excess of 70 percent. VA treatment records show he was diagnosed with several mental health disorders including bipolar disorder, generalized anxiety, and dysthymia. He was given mood stabilizers and other medications to treat his symptoms. Explosive episodes and mood swings were occasionally reported but had decreased over time. He consistently denied suicidal thoughts and voices. There was no evidence of delusions or hallucinations. The Veteran reported good response to his prescribed medication but experienced sadness due to financial problems. He reported romantic relationships with two girlfriends and he had some familial support. Records show available GAF scores of 55. The Veteran was afforded a VA examination for his mental health disorder in July 2010; he reported several symptoms including irritability, trouble sleeping with nightmares, nervousness, depressed mood and seeing ghosts. His speech was spontaneous, his affect was constricted and mood agitated. He was cooperative with the examiner, who found that he did not have inappropriate behavior, and he did not have suicidal or homicidal thoughts. His memory was normal. The examiner found that he was capable of managing his own financial affairs. Ultimately, the examiner assigned a GAF score of 60 and noted that his mental disorder symptoms were controlled by continuous medication. During the February 2013 VA exam for mental disorders, the examiner found that he maintained a "distant but good" relationship with his children and had a relationship with a significant other that came with some difficulties whenever he lost his temper. The Veteran reported increased anxiety, irritability, low frustration tolerance, and difficulties sleeping due to chronic back pain. During the examination, he was alert and aware, his speech was clear and goal directed. His mood was mildly anxious and affect appropriate to mood. He was in full contact with reality. There was no evidence of delusions, hallucinations, suicidal or homicidal ideation. His insight and judgment were superficial. The examiner assigned a GAF score of 55 and noted that the Veteran had occupational and social impairment with deficiencies in most areas due to anxiety, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. The Veteran underwent another VA exam for mental disorders in May 2016. On examination he was observed to be anxious, alert, coherent, relevant, logical, appropriate, oriented x3, and not suicidal or homicidal. His judgment and insight were good, his mood was mildly depressed and his affect was congruent with his mood. There were no indications of a perceptual or thought disorder, and he seemed in good contact with reality. Symptoms that applied to his diagnosis included depressed mood, anxiety, chronic sleep impairment and disturbances of motivation and mood. He also had impaired impulse control, without violence and chronic persistent pain that were attributable to other mental disorders. Overall, the examiner found that he had occupational and social impairment with reduced reliability and productivity. Based on the foregoing, the Board finds that the preponderance of the evidence does not support an increased rating in excess of 70 percent for dysthymia. A disability rating greater than 70 percent is not appropriate because he did not exhibit symptoms more closely approximating those associated with a higher, 100 percent rating. Throughout the appeal period, the Veteran's dysthymia was manifested by occupational and social impairment with deficiencies in most areas due to anxiety, depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and difficulty in adapting to stressful circumstances. The evidence shows there was a decrease in symptoms including explosive episodes and he had several bouts of sadness due to financial and medical concerns. In his latest examination, he showed improved treatment compliance and better response to his medications. Moreover, there is no lay or medical evidence, which shows additional symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations, 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. The evidence does not show the Veteran has total occupational and social impairment, as he has had romantic relationships and maintains a distant but good relationship with his children. The Board acknowledges that the Veteran, in advancing this appeal, believes that his dysthymia is more severe than the assigned disability rating reflects. In this regard, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's description of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In evaluating the Veteran's increased rating claim, the Board is aware that the symptoms listed under the 70 percent ratings are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds that the record does not show the Veteran manifested symptoms that equal or more nearly approximate the criteria for a 100 percent rating at any point during the appeal period. In summary, although the Veteran has experienced some increased symptoms of depression, the Board finds that the Veteran's service-connected dysthymia more nearly approximated the level of disability contemplated by the 70 percent rating. In making this determination, the Board notes that the Veteran was assigned GAF scores between 55 and 60, which denote moderate symptoms. The Board finds that the Veteran's deficiencies must be due to symptoms listed for that rating level, or others of similar severity, frequency and duration. Vasquez-Claudio, 713 F.3d 112, 117 (Fed. Cir. 2013). Here, the symptoms noted during the VA examinations during the appeal period are of similar severity, frequency, and duration of those noted under the criteria for a 70 percent rating. Spine In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Pertinent parts of the General Rating Formula for Diseases and Injuries of the Spine are as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: Unfavorable ankylosis of the entire spine is rated at 100 percent. Unfavorable ankylosis of the entire thoracolumbar spine is rated at 50 percent. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated at 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a. Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran contends that he is entitled to a disability rating in excess of 20 percent prior to February 12, 2013, and 40 percent thereafter for a lumbar strain. VA treatment records show constant complaints of back pain and treatment in the form of pain relievers, muscle relaxants and physical therapy. X-rays taken in November 2012 show mild intervertebral osteochondral changes at L5-S1, with no other abnormalities. During the July 2010 VA spine examination, the Veteran reported increased pain and limitation in movements. There was some paresthesia, leg or foot weakness and unsteadiness. Examination of the muscles of the spine revealed spasms, guarding, pain with motion, tenderness and weakness; there was no evidence of any ankylosis. The examiner did not discuss any incapacitating episodes, noting that the Veteran was retired; there was limitation in home maintenance and self-care activities. At the time, the Veteran was not participating in physical therapy. Active range of motion was measured to 35 degrees of flexion, 10 degrees of extension, 10 degrees of left lateral flexion and 25 degrees of left lateral rotation; 15 degrees of right flexion and 30 degrees of right lateral rotation. There was objective evidence of pain on active range of motion; however, the examiner noted that the Veteran had better range of motion, with no apparent increase in pain while he was putting on his socks and shoes after the examination. There was no additional limitation in range of motion after three repetitions. The Veteran was afforded a VA spine examination in February 2013 and he complained of worsening lower back pain in spite of using medication. There was no ankylosis of the spine or muscle atrophy. The contributing factors of his disability included less movement than normal, pain on movement, and interference with sitting, standing and/or weight bearing. There was pain at his lumbar paravertebral muscles upon palpation. Range of motion for forward flexion was measured to 10 degrees, for extension to 10 degrees, for right and left flexion to 15 degrees and right and left rotation to 20 degrees. Pain on range of motion was noted at 5 degrees on all movements, forward flexion, extension, right and left rotation and flexion. He was able to complete repetitive use testing with no additional limitation in range of motion. The May 2016 VA examination revealed the Veteran suffered from persistent/constant daily pain in his lower back that flared up upon walking greater than 50 yards or climbing one flight of stairs. He also reported constant, moderate shooting pain and numbness in his right leg. The Veteran experienced muscle spasms, guarding and localized tenderness that resulted in abnormal gait or spinal contour. The examiner noted there was no curvature or ankylosis of the spine. Examination revealed symptoms of radiculopathy in his right lower extremities. Range of motion was measured as follows: forward flexion to 35 degrees, with pain at 25 degrees; extension to 15 degrees, with pain at 10 degrees; left lateral flexion and rotation to 20 degrees, with pain at 15 degrees; and right lateral flexion and rotation to 20 degrees, with pain at 15 degrees. After repetitive use testing the Veteran had pain, fatigue and weakness that caused additional loss of range of motion. There was evidence of pain with weight bearing and tenderness to palpation on lumbar area. The Veteran reported episodes of treatment and bed rest prescribed by a physician having a total duration of at least one week but less than two weeks during the past 12 months. Throughout the appeal period, the Veteran has had VA examinations and sought VA treatment. These reports and documents show significant treatment for low back pain and associated symptoms (pain, limitation of motion, and radiculopathy). However, these records do not show extensive periods of doctor prescribed bed rest or ankylosis of the thoracolumbar spine for longer than two weeks. Upon careful review of the record, the Board finds that there is no evidence that would show the Veteran is entitled to an increased rating at any point during the appeal period. Prior to February 12, 2013, he reported low back pain and occasional exacerbation. The available evidence shows that range of motion in his spine was at worst limited to 35 degrees, with pain on motion. There was no additional limitation after repetition. There is no medical evidence showing ankylosis, incapacitating episodes greater than two weeks or limitation of motion or worsening symptoms that would warrant a higher rating. In fact, the July 2010 examiner noted that he exhibited greater range of motion following the examination as he was getting dressed. As for the time period after February 2013, the Veteran is entitled to a schedular evaluation in excess of 40 percent for his lumbar spine disability only on two bases: (1) unfavorable ankylosis of the entire thoracolumbar spine, or (2) incapacitating episodes having a total duration of at least six weeks during the past twelve months. Other symptoms, such as limitation of all motions, muscle spasm, and abnormal spinal contour, are fully contemplated by the assigned 40 percent evaluation (or by lower levels of evaluation, under Diagnostic Codes 5237-5242) and do not warrant further discussion with regard to the question of whether an increased evaluation is warranted. In other words, there is no basis for an increased evaluation based upon limitation of motion when a 40 percent evaluation is assigned for a spine disability. In addressing the criteria for a higher schedular evaluation, the Board has considered the findings from the VA examination conducted during the appeal period. These examination report show limited range of motion-at worst limited to 5 degrees of flexion with pain. However, these medical records and examination reports show no evidence of ankylosis of any kind in the thoracolumbar spine. Based on the evidence of record, the Board finds that there is simply no evidence of unfavorable ankylosis of the thoracolumbar spine to warrant a higher rating. See supra 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. As noted above, any painful or limitation of motion is already contemplated by the current 40 percent evaluation. As to doctor-prescribed bed rest (e.g., incapacitating episodes) resulting from the service-connected spine disability, VA examination reports show no incapacitating episodes (physician prescribed) greater than two weeks in any 12-month period. The Board has considered the Veteran's contentions that he experiences increased pain that was not abated by medication, and he is certainly competent to report his symptoms of back pain. During the May 2016 VA examination, the Veteran reported one to two weeks of bed rest, however, under the criteria this would only warrant a 10 percent rating. As noted above, a rating greater than 40 percent requires physician prescribed bed rest of six weeks or more. Unfortunately, there is no evidence in the record to indicate that the Veteran had six weeks or more of incapacitating episodes for VA purposes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Therefore, a higher evaluation is not warranted on this basis. Consideration has also been given to the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board has documented the additional loss of range of motion in the Veteran's back due to pain, but such limitation is not commensurate with unfavorable ankylosis to warrant a higher rating. The current 40 percent evaluation for the service-connected lumbar spine disability adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his spine. See DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran is competent to report that his low back disability is worsening. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's low back disability is appropriate. In sum, the Board finds that a rating in excess of 20 percent prior to February 12, 2013 and 40 percent thereafter for the lumbar spine disability is not warranted. See Hart, supra. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for dysthymia is denied. An increased rating for a back disability is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs