Citation Nr: 20021907 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 12-27 204 DATE: March 27, 2020 ORDER Entitlement to service connection for residuals of traumatic brain injury (TBI), to include short-term memory impairment is denied. Entitlement to an initial compensable evaluation for anxiety disorder, not otherwise specified (claimed as posttraumatic stress disorder (PTSD) and trouble sleeping) for the period prior to March 2, 2011 is denied. Entitlement to an evaluation of 30 percent, but no higher, for anxiety disorder, not otherwise specified (claimed as PTSD and trouble sleeping) for the period beginning March 2, 2011 is granted. Entitlement to an initial evaluation in excess of 10 percent for lumbosacral strain, to include a referral for an extraschedular evaluation is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s claimed short-term memory impairment is a residual of his in-service TBI. 2. For the period prior to March 2, 2011, the Veteran’s anxiety disorder did not result in an occupational and social impairment. 3. Resolving reasonable doubt in the Veteran’s favor, for the period beginning March 2, 2011, the Veteran’s symptoms of anxiety disorder has been resulting in an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. For the entire period on appeal, the evidence of record does not show that the Veteran’s forward flexion of the thoracolumbar not greater than 60 degrees; or his combined range of motion of the thoracolumbar spine not greater than 120 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. 5. For the entire period on appeal, the symptomatology and manifestations of the Veteran’s service-connected lumbosacral strain did not present an exceptional or unusual disability picture to warrant a referral for an extraschedular evaluation of the disability. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of TBI, to include short-term memory impairment have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. For the period prior to March 2, 2011, the criteria for an initial compensable evaluation for anxiety disorder, not otherwise specified (claimed as PTSD and trouble sleeping) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2019). 3. For the period beginning March 2, 2011, the criteria for an evaluation of 30 percent, but no higher, for anxiety disorder, not otherwise specified (claimed as PTSD and trouble sleeping) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2019). 4. The criteria for an initial evaluation in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2019). 5. The criteria for an extraschedular evaluation for lumbosacral strain, currently rated as 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b)(1) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 to May 2009 with service in the Southwest Asia Theater of Operations. The Veteran was awarded the Purple Heart. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office. In June 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. The Board remanded the matters in August 2015, July 2017, and February 2019. Now the matters are returned to the Board. 1. Service connection The Veteran is seeking service connection for residuals of TBI. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. First, as to the current disability, the Veteran testified that he is experiencing difficulties with “very short-term memory.” June 2015 Hearing Transcript, at 10; see also September 2015 Occupational Therapy Consult (the Veteran has scored below normal in the areas of delayed recall and abstraction and his mild cognitive impairment was noted). Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds the first Shedden element for service connection is met. In regard to the in-service injury, the evidence of record shows the Veteran’s exposure to grenade explosion in service. See e.g., August 2009 Compensation and Pension Examination (the Veteran was dazed for a minute after his exposure to a grenade explosion; he was also dazed for seconds after another incident of an IED explosion). Thus, the Board finds that the second Shedden element for service connection is also met. However, the Board finds that evidence of record does not show the causal link between the Veteran’s currently claimed short-term memory impairment and his in-service injury. The Board notes that during the August 2009 examination for TBI, the examiner reported that the severity of the Veteran’s initial injury was mild and his TBI was resolved with no residuals. The Board also notes that, during a September 2015 cognitive evaluation, the examiner provided that the Veteran’s cognitive complaints are “likely multi factorial in origin.” Under 38 C.F.R. § 3.655, when a veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. The Veteran was scheduled for a VA examination for TBI in July 2019 after the February 2019 Board Remand Order. See July 2019 Requests for Examinations. However, the Veteran has failed to report for the examination. See July 2019 Exam Scheduling Request Contention Cancellation (the Veteran’s “No Show” was noted).” The Board finds that good cause has not been shown for the Veteran's failure to report for his scheduled examination. Also, the Board notes that the Veteran was notified of his failure to report for the examination via the November 2019 Supplemental Statement of the Case which was mailed to his last known address. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s claimed short-term memory impairment is a residual of his in-service TBI. As such, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for residuals of TBI, to include short-term memory impairment is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. Increased ratings The Veteran is seeking higher disability ratings for his service-connected anxiety disorder and lumbosacral strain. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be 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. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2018). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2018). Otherwise, it will assign the lower rating. Id. Initial evaluation for anxiety disorder The Veteran’s anxiety disorder was initially rated as 0 percent disabling prior to June 9, 2015 and 10 percent thereafter. Unspecified anxiety disorder is rated under General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9413 (2019). Under the criteria, a 10 percent evaluation is warranted for an 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 continuous medication; a 30 percent evaluation warranted for an 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 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 evaluation is warranted for an 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. 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). 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 adjustment during periods of remission. The rating agency 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 disability at the moment of the examination. When evaluating the level of disability from a mental disorder, 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 (2019). On the August 2009 initial evaluation for PTSD, the examiner found that the Veteran has a diagnosis of anxiety disorder, not otherwise specified. On the examination, the Veteran described his marriage was going “pretty well” and he has about 15 to 20 close friends. The Veteran denied any history of suicide attempts or current suicidal or homicidal thoughts. The Veteran also denied sleep impairment, hallucinations, or panic attacks. The examiner reported the Veteran’s symptoms of nervousness, irritability of outbursts of anger, difficulty in concentrating, hypervigilance, and exaggerated startled responses. Notably, the examiner provided that the Veteran’s psychiatric symptoms are not severe enough to interfere with occupational and social functioning and it does not result in deficiencies in the areas of judgment, thinking, family relations, work, mood, or school. As stated above, in order to warrant a compensable (10 percent) evaluation for anxiety disorder, the evidence of record must show that the Veteran’s symptoms result in an 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 continuous medication. However, here, the preponderance of the evidence is against finding that the Veteran’s initial symptoms of anxiety disorder resulted in any occupational and social impairment or required continuous medication. Thus, the Board finds that the Veteran’s entitlement to an initial compensable evaluation for anxiety disorder is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2019). Evaluation for anxiety disorder beginning March 2, 2011 However, the Board finds that the evidence of record shows that the severity of the Veteran’s anxiety disorder was worsened from the period beginning March 2, 2011. In March 2011, the Veteran’s call to the VA National Suicide Prevention Hotline was reported. Although the Veteran reported that he was not currently suicidal, he provided that he was experiencing issues at school and marriage, and was unable to handle his current situation. The Veteran had agreed to a future consultation. During a March 2011 psychiatric consult, the Veteran reported that he was overwhelmed with interpersonal relations, school, work, and marital problems. The Veteran stated that he is experiencing social anxiety with answering phone calls, and his poor concentration is affecting his daily activities at home and school. The Veteran also provided that he experiences sleep difficulties one or two times a week, irritability, anger, avoidance of crowds, and panicky feeling when in crowds. The Veteran reported that he took prescribed medication for one week. The Veteran denied suicidal ideation or intent to harm himself or others. During a December 2014 psychiatric consult, the examiner reported that the Veteran was very anxious during the session where he was continually fidgeting, twisting his fingers, and bouncing his knees. The Veteran reported symptoms of anxiety, depression, increased anger and irritability, sleep paralysis, occasional nightmares, and short-term memory problems. The Veteran denied suicidal or homicidal ideations, paranoia, panic attacks, hallucinations, or relationship issues. On a June 2015 psychiatric assessment, the Veteran reported poor sleep, short temper, low energy, and high anxiety leading to excoriation. The Veteran described his mood as volatile with angry verbal outbursts, but generally more depressed, sad, and exhausted. The Veteran also reported that he is constantly vigilant and anxious in crowds, and experiences sleep paralysis. During the June 2015 hearing, the Veteran testified that he experiences anxiety daily, especially when he is in the crowds and other people. The Veteran described his psychiatric symptoms as being moody, aggravated, and short-fused. The Veteran provided that he has to adjust his task at work to avoid meeting new people which makes him very uncomfortable. The Veteran also testified that he only goes out for a couple of hours since he gets nervous, and his relationship with his girlfriend has its ups and downs due to his psychiatric symptoms. On the August 2015 psychiatric evaluation, the Veteran’s prescription medication history for Citalopram 20mg, Hydroxyzine Pamoate 50mg, Mirtazapine 30 mg, Diphenhydramine HCL 25mg was noted. The Veteran reported symptoms of irritability, anger, anxiety, intermittent difficulties with short-term memory, and some sleep disruptions. The examiner reported that the Veteran adamantly and convincingly denied any suicidal or homicidal ideation, intent, or plan. Also, the Veteran’s divorce was noted during the evaluation. In light of the above and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s psychiatric symptoms for the period beginning March 2, 2011 more approximates a 30 percent evaluation. However, a higher evaluation of 50 percent is not warranted as the evidence does not show that the Veteran’s psychiatric symptoms has been resulting in an occupational and social impairment with reduced reliability and productivity. Accordingly, the Board finds that the Veteran’s entitlement to an evaluation of 30 percent, but no higher, for anxiety disorder, not otherwise specified (claimed as PTSD and trouble sleeping) for the period beginning March 2, 2011 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2019). 3. Initial evaluation in excess of 10 percent for lumbosacral strain Further, the Veteran is seeking a higher initial evaluation for his service-connected lumbosacral strain which is currently rated as 10 percent disabling. Pursuant to Diagnostic Code 5237, lumbosacral strain is evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a (2019). Here, the evidence of record does not show that the Veteran has IVDS; therefore, his spine disability will be rated under the General Formula. Under the General Formula, a 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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. 38 C.F.R. § 4.71a, General Formula (2019). A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. It should be noted that any objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id., at Note (1). On the October 2009 examination for spine disability, the Veteran was diagnosed with lumbosacral strain. The Veteran reported a moderate spinal flare-up once in an one-to-two-months period which lasts for hours, and it is precipitated by lifting, carrying, odd sleeping position, and prolonged sitting. The Veteran also reported daily moderate pain in both sides of his lower back and described the pain as aching and sharp without radiation. The examiner reported the following range of motion measurements for the Veteran’s thoracolumbar spine: flexion to 80 degrees with painful motion beginning at 70 degrees; extension to 30 degrees with painful motion beginning at 25 degrees; both right and left lateral flexions to 30 degrees; and both right and left lateral rotations to 30 degrees. The examiner noted objective evidence of pain following repetitive motion without additional limitations in range of motion. The Veteran did not have cervical spine or thoracolumbar spine ankylosis. The examiner noted objective evidence of muscle spasm and guarding in both right and left sides, but reported that the Veteran’s muscle spasm or guarding is not severe enough to be responsible for abnormal gait or abnormal spinal contour. The examiner provided that the Veteran’s lumbosacral strain disability impacts his occupational activities due to decreased concentration, problems with lifting and carrying, lack of stamina, and pain. During the June 2015 hearing, the Veteran testified that he experiences persistent back pain throughout the day including tightening of the back muscles. The Veteran provided that he can only stand or sit down for 45 minutes to an hour due to his back issues and it affects his ability to work. The Veteran also testified that he can lift about 75 pounds at the gym, and he does not currently wear a back brace but takes Naproxen and uses TENS unit at home for his back condition. A November 2013 physical therapy record shows that the Veteran’s chronic low back pain is affecting his tolerance for prolonged standing, walking, and sitting. The physical therapist noted that the Veteran’s symptoms are suggestive of lower back strain from poor posture and core weakness, and a left rotary component of the spine with forward trunk flexion is suggestive of mechanical scoliosis. The Veteran did not have radiculopathy, or complaints of bowel or bladder dysfunction. The Board notes that the Veteran’s medical records document his history of chronic lower back pain. However, the evidence of record does not show continuing treatments for the Veteran’s lumbosacral strain. See also October 2014 Primary Care Note (the Veteran’s low back strain was reported to be stable without a recent flare-up). As discussed above, the Veteran’s increased rating claim for his lumbosacral strain is rated based on the evidence of record as the Veteran has failed to report for the scheduled July 2019 examination without showing a good cause. 38 C.F.R. § 3.655 (2019). With that, the Board finds that the current evidence of record does not show that the Veteran’s forward flexion of the thoracolumbar not greater than 60 degrees; or his combined range of motion of the thoracolumbar spine not greater than 120 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. Consequently, the Board finds that the Veteran’s current 10 percent evaluation for his lumbosacral strain is appropriate and the next higher rating of 20 percent is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2019). As to the Veteran’s claim of extraschedular rating consideration, there is a three-step analysis for determining whether an extraschedular evaluation is appropriate for a service-connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant’s exceptional disability picture exhibits other related factors identified in the regulations as “governing norms.” Id.; see also 38 C.F.R. § 3.321 (b)(1) (2019). If the factors of step two are found to exist, the third step is to refer the case to the Director of the Compensation Service for a determination whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. The Board itself cannot assign an extraschedular rating in the first instance pursuant to 38 C.F.R. § 3.321(b). Here, the Board finds that the Veteran’s disability picture is adequately contemplated by the General Formula as his lumbosacral strain symptoms of limited range of motion, painful motion, muscle spasm, and guarding are already included in the rating criteria. In other words, the Board does not find that the symptomatology of the Veteran’s lumbosacral strain to be so exceptional or unusual to render the application of the schedular rating criteria impractical and an extraschedular disability rating assignment is required. As the preponderance of the evidence is against the extraschedular claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the matter does not require a referral to the Director of Compensation Service, and the Veteran’s claim for extraschedular rating for his lumbosacral strain must be denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b)(1) (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.