Citation Nr: 18100734 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 13-28 966A DATE: April 19, 2018 ISSUES DECIDED: 4 ISSUES REMANDED: 0 ORDER Entitlement to service connection for a headache disorder, to include as secondary to chronic low back pain is denied. Entitlement to a rating in excess of 20 percent for chronic musculoskeletal low back pain with muscle spasm prior to June 24, 2013 is denied. Entitlement to a rating of 40 percent, but not higher, from June 24, 2013, for chronic musculoskeletal low back pain with muscle spasm is granted. Entitlement to an initial rating in excess of 30 percent for depression is denied. Entitlement to a total disability income based on unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has not had a diagnosis associated with headaches at any time during the pendency of the appeal. 2. For the period prior to June 24, 2013, the Veteran’s low back forward flexion has been limited to not worse than 45 degrees. 3. For the period from June 24, 2013, the Veteran’s low back forward flexion was limited to not worse than 19 degrees. 4. For the entire appeal period, the Veteran’s depression has been manifest by mild social and occupational impairment. 5. The Veteran’s service-connected disabilities, independent of his age and non-service-connected disabilities, do not render him unemployable. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder, to include as secondary to chronic low back pain have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. For the period prior to June 24, 2013, the criteria for entitlement to a rating in excess of 20 percent for chronic musculoskeletal low back pain with muscle spasm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5295-5237 (2017). 3. For the period from June 24, 2013, the criteria for entitlement to a rating of 40 percent, but not higher, for chronic musculoskeletal low back pain with muscle spasm have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5295-5237 (2017). 4. The criteria for an initial rating in excess of 30 percent for depression. have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). 5. The criteria for a total disability income based on unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1996 to June 1998. While the Veteran initially requested a Board of Veterans’ Appeals (Board) hearing, he withdrew his request through his representative in an October 2017statement. Neither the Veteran nor his representative has raised any 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). The Board has thoroughly reviewed all of the evidence in the Veteran’s claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a headache disorder, to include as secondary to chronic low back pain. The Veteran contends that he suffers from headaches as a result of his service-connected chronic musculoskeletal low back pain with muscle spasm. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Court has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board concludes that the Veteran does not have a current diagnosis associated with his headaches, of and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records indicate that he complained of a single migraine headache in April 1998. Following separation from service, VA treatment records indicate that in August and September 2010 the Veteran reported headaches, but all notes prior to and after this were negative for complaints of headaches. The Veteran has not submitted any private medical treatment records, nor has he submitted any lay assertions regarding an underlying diagnosis associated with headaches. While the Veteran’s claim implicitly includes the assertion that he has a current diagnosis, the Veteran is not competent to make such an assertion. Specifically, attributing a symptom, or set of symptoms to any specific pathology is a medically complex matter and requires specialized medical education and knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives little probative value to the Veteran’s implied assertion, and the record otherwise lacks any evidence of a current diagnosis. In sum, the evidentiary requirement of demonstrating a current disability has not been satisfied. There is simply no evidence that headaches or migraines have been diagnosed at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Likewise the Veteran has not complained of or been treated for headaches continuously since separation from service. Without a diagnosis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran’s favor, and the claim of service connection for a headache disorder must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DC) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially ‘absurd results’. Id. at 43. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 20 percent for chronic musculoskeletal low back pain with muscle spasm. The Veteran is currently service connected for chronic musculoskeletal low back pain with muscle spasm under Diagnostic Code 5295-5237. He filed a claim for increased rating in June 2010, contending that his condition had worsened. VA regulations provide that disabilities of the spine, including under Diagnostic Codes 5237 (lumbosacral or cervical strain), 5242 (degenerative arthritis of the spine), and 5243 (intervertebral disc syndrome), are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The General Rating Formula for rating Diseases and Injuries of the Spine provides a 100 percent rating for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Under the Diagnostic Codes for the spine, specifically Diagnostic Code 5237 as it pertains to the cervical spine, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or with favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or with combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a Diagnostic Codes 5235-5243. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). On VA examination in August 2010, the Veteran was diagnosed with degenerative lumbar and cervical spine disease, resulting in decreased mobility. The Veteran’s lumbar spine flexion was measured to, at worst, 45 degrees. Left lateral flexion was measured to 14 degrees, right lateral flexion to 17 degrees, left rotation to 8 degrees, with right rotation to 17 degrees. On VA examination in June 2013, the Veteran’s lumbar spine flexion was to 19 degrees, left lateral flexion was to 9 degrees, and right lateral flexion was to 2 degrees. Further testing was not performed due to pain and dizziness. The Board finds it necessary to assign different ratings for the periods prior to June 24, 2013, and thereafter. For the period prior to June 24, 2013, the Veteran’s lumbar spinal forward flexion was measured to, at worst, to 45 degrees. A rating in excess of 20 percent requires forward flexion limited to 30 degrees or less. For the period from June 24, 2013, the Veteran’s lumbar spine forward flexion was limited at worst, to 19 degrees. This warrants a 40 percent rating under the diagnostic codes for the spine. A higher rating is not warranted, however, as it requires unfavorable ankylosis of the entire thoracolumbar spine, which the Veteran does not have. Therefore a rating of 40 percent, but no higher, is warranted from June 24, 2013. Further, a separate neurological rating is not appropriate in this case, as the Veteran does not have any associated objective neurological abnormalities related to the cervical spine, including radiculopathy or IVDS, as noted above. The Veteran is competent to report symptoms of his spine disabilities as he did in his lay statements. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). To that extent, the Board has considered his competent assertions in reaching it final conclusions. The medical findings in this case also show consideration of his reported symptoms and directly address the criteria under which his disabilities are evaluated. Because medical finds were reached through objective measurement, the Board accords these findings of greater probative weight in determining the Veteran’s appropriate rating, than the Veteran’s subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). 3. Entitlement to an initial rating in excess of 30 percent for depression. The Veteran contends that his service-connected depression warrants a higher disability rating than the currently assigned 30 percent rating. Considerations in evaluating a mental health disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When determining the appropriate disability evaluation to assign, the Board's “primary consideration” is the Veteran’s symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran’s service-connected depression has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434, which provides as follows: A 30 percent disability rating is warranted when the Veteran experiences occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), 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 disability rating is warranted when the Veteran experiences 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. On VA examination in June 2013, the Veteran was diagnosed with depression, ethanol abuse, and cannabis abuse. The examiner noted symptoms of depressed mood, loss of interest in pleasurable activities, low self-esteem, and anxiety. The examiner determined that the Veteran showed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner was able to separate symptoms caused by depression and those caused by alcohol and cannabis abuse. The examiner found that depression caused mild social and occupational impairment, and alcohol and cannabis abuse caused moderate social and occupational impairment. Based on the medical documentation of record, including the June 2013 examination, the Board finds the Veteran’s depression symptoms resulted in, at worst, mild social and occupational impairment for the entire appeal period. As a result, a rating in excess of 30 percent is not warranted. A higher rating under diagnostic code 9434 requires 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; difficulty in establishing and maintaining effective work and social relationships, which the Veteran has not exhibited at any point during the appeal period. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). VA will grant TDIU when the evidence shows that the Veteran is precluded, due to service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is to be determined “without regard to the non-service-connected disabilities or [the Veteran’s] age.” Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: (1) if there is only one such disability, the disability shall be ratable at 60 percent or more, or (2) if there are two or more service-connected disabilities at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. “TDIU is to be awarded based on the ‘judgment of the rating agency’ . . . .” Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran has not met the scheduler threshold criteria for the award of a TDIU at any time during the period on appeal, as his combined rating for both service-connected disabilities has remained less than 70 percent. Accordingly, TDIU cannot granted under the scheduler provisions of 38 C.F.R. § 4.16(a). TDIU may be granted on an extra-schedular basis where a veteran who fails to meet the scheduler percentage requirements, but is nonetheless unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extra-schedular rating in the first instance, Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, “rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). Consideration may be given to a Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Overall, the Board finds the evidence does not demonstrate that the Veteran’s service-connected disabilities, render him unable to secure and follow a substantially gainful occupation. His impairment due to these disabilities is shown to have been adequately evaluated during the course of this appeal. On examination, the effects of his mental health disability were noted to be mild, and his low back pain would only moderately affect his ability to work. As such, the Veteran is found to have been capable of substantially gainful employment throughout the period on appeal, and entitlement to a TDIU cannot be granted.   Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J. Schulman Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel