Citation Nr: 20048880
Decision Date: 07/22/20	Archive Date: 07/22/20

DOCKET NO. 15-37 333
DATE: July 22, 2020

ORDER

Entitlement to service connection for hypertension, to include as secondary to service-connected disability is denied.

Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy prior to September 29, 2011, in excess of 10 percent from September 29, 2011 to December 21, 2015, and in excess of 20 percent from December 22, 2015, is denied.

Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to December 22, 2015, and in excess of 20 percent from December 22, 2015 is denied.

Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD), lumbar spine, post lumbar fusion is denied.

Entitlement to an initial evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD), prior to November 18, 2019, is denied.

Entitlement to an evaluation in excess of 50 percent for PTSD since November 18, 2019 is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to April 19, 2015 is denied.

Entitlement to an effective date earlier than April 19, 2015 for the grant of basic eligibility to Dependents' Educational Assistance (DEA) is denied.

FINDINGS OF FACT

1.   The Veteran's hypertension was not present during service, was not manifested to a compensable degree within one year of service separation and is not otherwise related to service or a service-connected disability.  

2.   The Veteran’s radiculopathy of the left lower extremity more nearly approximates moderate incomplete paralysis prior to September 29, 2011.  

3.   The Veteran’s radiculopathy of the left lower extremity more nearly approximates mild incomplete paralysis from September 29, 2011 to December 21, 2015.  

4.   Since December 22, 2015, the Veteran’s radiculopathy of the left lower extremity more nearly approximates moderate incomplete paralysis.  

5.   Prior to December 22, 2015, the Veteran's right lower extremity radiculopathy resulted in nor more than mild incomplete paralysis of the sciatic nerve.  

6.   Since December 22, 2015, the Veteran's right lower extremity radiculopathy has been productive of no more than moderate incomplete paralysis of the sciatic nerve.  

7.   Throughout the appeal period, the Veteran's lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine of 30 degrees or less and has not been characterized by unfavorable ankylosis of the entire thoracolumbar spine, or any incapacitating episodes.  

8.   Prior to November 18, 2019, the Veteran's PTSD was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermitted 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, chronic sleep impairment due to nightmares, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  

9.   Prior to November 18, 2019, the Veteran's PTSD did not result in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships.  

10.   Since November 18, 2019, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: chronic sleep impairment, depression, anxiety, panic attacks, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining relationships, but has not been manifested by deficiencies in most areas of work, school, family relationships, thinking, judgment and mood.  

11.   For the period prior to April 19, 2015, the Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation.  

12.   The Veteran did not have a permanent, total service-connected disability, a TDIU, or was otherwise eligible for DEA benefits prior April 19, 2015.  

CONCLUSIONS OF LAW

1.   The criteria for service connection for hypertension, to include as secondary to service-connected disabilities, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.  

2.   The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity from prior to September 29, 2011 and from December 22, 2015 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520.  

3.   The criteria for a rating in excess of 10 percent from September 29, 2011 to December 21, 2015 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520.  

4.   The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy for the period prior to December 22, 2015, and in excess of 20 percent, thereafter, have not all been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code (DC) 8520.  

5.   The criteria for a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine, post lumbar fusion, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5243.  

6.   The criteria for an initial rating in excess of 30 percent for PTSD have not been met for the period prior to November 18, 2019.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411.  

7.   The criteria for a rating in excess of 50 percent for PTSD have not been met for any period on appeal.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411.  

8.   The criteria for entitlement to a TDIU for the period prior to April 19, 2015 have not been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.16, 4.19.  

9.   The criteria for an effective date earlier than April 19, 2015 for the award of DEA benefits, have not been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1970 to November 1971.  

This matter comes before the Board of Veterans' Appeals hereinafter Board) on appeal from rating decisions in December 2014, July 2015 and February 2016.  The Veteran perfected timely appeals to those rating decisions.  

In November 2018, the Board remanded the case to the RO for further evidentiary development.  By a rating action in April 2020, the RO increased the rating for PTSD from 30 percent to 50 percent, effective November 18, 2019.  That, however, was not the highest possible rating, so the appeal continues.  See AB v. Brown, 6 Vet. App. 35 (1993).  

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018).  “To establish a right to compensation for a present disability, a Veteran 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”- the so-called “nexus” requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability.  See 38 C.F.R. § 3.310 (a) (2018).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  

Service connection for certain chronic diseases, including hypertension, may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).  

The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature.  Id. see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  

1.   Entitlement to service connection for hypertension, to include as secondary to service-connected disability

The Veteran contends that his current hypertension disorder is secondary to his service-connected PTSD and/or diabetes mellitus, type II disorder, including medication prescribed for these disorders.  

The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated by service-connected disability.  

For VA purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm.  (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2018).  

After careful review of the evidentiary record, the Board finds that the evidence is against the claim for service connection for hypertension.  Significantly, the STRs are negative for any clinical findings or diagnoses of hypertension.  The first diagnosis of hypertension was in 2010, which is 39 years after active service.  Hence, service connection is not warranted on a presumptive basis for a chronic disease under 38 U.S.C. § 1112.  The long period between service and the onset of hypertension is one factor that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed.  See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection).  

Service connection also is not warranted on a direct basis, as there is no medical evidence of any in-service incurrence or relationship between hypertension and service.  That is, while the records reflect that the Veteran has received ongoing clinical evaluation and treatment for hypertension, none of the medical providers, VA or private, has tied the currently diagnosed hypertension to an event, injury, or disease in service.  

With respect to service connection on a secondary basis, the Board concludes that, while the Veteran has a current diagnosis of hypertension, the preponderance of the evidence is against finding that the Veteran's hypertension is directly related to service or proximately due to or the result of or aggravated beyond its natural progression by his service-connected PTSD, diabetes mellitus type II, or medications prescribed for those disabilities.  38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a).  

In this regard, the December 2015 DBQ examiner opined that the claimed condition is less likely as not proximately due to or the result of or aggravated by PTSD.  The examiner stated that medical research review does not indicate any documented causation or aggravation of hypertension by PTSD.  In an addendum opinion, the examiner stated that the Veteran appeared to have been diagnosed with hypertension around 2010-2011; he is now on 3 medications for this and it appears to be well-controlled, but he did have additional medications added to his regimen this summer.  The examiner further noted that the Veteran has tremendous risk factors for the development of HTN, to include a strong family history of risk-based disease.  Therefore, his hypertension is not due to his PTSD as his risk factors for developing this are the most likely causes behind his hypertension.  The examiner stated that, whether any PTSD truly aggravated any underlying hypertension is completely unknown and would be resorting to speculation.  

In November 2019, Veteran’s claims file was referred to a DBQ examiner for a medical opinion as to whether the Veteran’s hypertension is related to his service-connected disabilities.  The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition.  The examiner observed that the Veteran has PTSD but, from what he could see, not a severe form of it and with not a lot of anxiety and on no medication from that condition.  The examiner stated that, even if he had a more severe form, he was not aware of PTSD “causing” hypertension even though it can cause elevated blood pressure readings episodically depending on the person’s state of emotion at that moment.  Hypertension is generally considered to be "around the clock" BP elevation higher than normal.  There is a constant stream of records going back several years on this Veteran’s hypertension and he has as strong family history of hypertension, the most likely factor in causation.  He also has a history of obstructive sleep apnea (and doesn't use his CPAP), doesn't exercise regularly, and has a past history of smoking, all of which or more likely co-factors for his hypertension.  The examiner stated that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's service-connected PTSD.  The examiner's opinion is probative, because it is based on an accurate medical history and provide an explanation containing clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

In another opinion, the DBQ examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition.  The examiner observed that the Veteran developed hypertension before he was actually diagnosed as a diabetic.  He noted that there is a theoretical argument for diabetes causing hypertension, but it involves the narrowing of arteries that only happens after many years of diabetes.  Even at that, he believed that this is mostly “theoretical” and is rarely the case (with diabetes “causing” the hypertension).  The examiner noted that the Veteran has had some mild elevations of his serum creatinine in the past but he has no retinopathy as of his last eye examination and no strong indications of peripheral neuropathy as yet, and both of these latter two conditions are correlated with microvascular disease (so he must not have much of that).  The examiner further stated that the Veteran’s hypertension is far more likely to have been inherited and he does, in fact, have a strong family history of hypertension.  He also has sleep apnea and does not use his CPAP, does not regularly exercise, and has as past history of smoking, all of which are more likely contributors to him having hypertension.  Therefore, the examiner concluded that the Veteran’s hypertension is less likely than not proximately due to or caused by the Veteran’s service-connected diabetes.  The examiner's opinion is probative, because it is based on an accurate medical history and provide an explanation containing clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The examiner further noted that the Veteran’s hypertension is not at least as likely aggravated beyond its natural progression.  The examiner observed that the Veteran is on blood pressure medication and not an unusual amount of medication in terms of type or dosage (Losartan 100 mg, HCTZ 25 mg, and Atenolol 25 mg.)  The examiner explained that for a man his age, even if BP was his only problem, this would not be unusual treatment.  He noted that there is no indication from any of his records that his PTSD has somehow aggravated his blood pressure, and this would not be logical from a physiologic standpoint.  The examiner further noted that the Veteran has many other conditions that are much more likely to have contributed to his hypertension; some of those conditions include heredity, smoking (>100 pack years easily), sleep apnea, lack of regular exercise, and being overweight most of his adult life.  The examiner stated that there is no evidence that the Veteran’s service-connected PTSD aggravated his hypertension beyond its natural progression  

The examiner explained that the mere presence of a diagnosis of hypertension is, of course, a "worsening" since he had no hypertension in 1984.  He relates that he has had hypertension "about 10 years" and his diabetes has actually been diagnosed in about that same time frame.  He is not on an unusual amount or types of medication for his BP (Losartan 100 mg, Hydrochlorothiazide 25 mg, and Atenolol 25 mg).  For diabetes to have impacted his vascular system in a severe enough way to raise his BP he would have had to have more severe diabetes for many more years (30 to 40 years) and still, I would consider that a theoretical cause or aggravating factor.  The examiner noted that the Veteran has only been diabetic for 10 to 12 years, had been on minimal medication for diabetes (Metformin 1500 mg /day) and has no retinopathy or diabetic neuropathy (to point to microvascular disease that is severe).  Moreover, he has multiple other medical conditions that are more likely contributors or aggravants of his hypertension and these include sleep apnea, smoking history, being overweight most of his adult life, and (most importantly) heredity.  The examiner concluded that the Veteran's service-connected diabetes cannot be said to have aggravated his hypertension beyond its normal progression.  The examiner's opinion is probative, because it is based on an accurate medical history and provide an explanation containing clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

As such, no medical professional has ever related the Veteran's hypertension to his service-connected disabilities, including type II diabetes mellitus, PTSD, or medications prescribed for those disabilities.  In the absence of competent and probative evidence that the Veteran's hypertension was either caused by or aggravated by his service-connected type II diabetes mellitus or PTSD, service connection is not warranted on a secondary basis and the claim must be denied.  See 38 C.F.R. § 3.310.  

While the Veteran believes his hypertension is proximately due to his diabetes or other service-connected disabilities, he is not competent to provide a nexus opinion in this case.  The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and an interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the December 2015 and November 2019 DBQ/VA examinations.  

In summary, the weight of the evidence is against a finding that the Veteran's hypertension is etiologically related to a disease, injury, or event in service, and is against a finding that it was caused or aggravated by any of his service-connected disabilities, including DM 2 or PTSD; consequently, the claim must be denied.  The preponderance of the evidence is against all theories of the claim; therefore, the benefit of the doubt doctrine does not apply.  See 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. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.   

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a  (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").  

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  

2.   Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy prior to September 29, 2011, in excess of 10 percent from September 29, 2011 to December 21, 2015, and in excess of 20 percent beginning December 22, 2015

The Veteran's left lower extremity radiculopathy is rated under Diagnostic Code 8520, which evaluates paralysis of the sciatic nerve.  Moderate incomplete paralysis of the affected nerve is rated 20 percent disabling, moderately severe incomplete paralysis of the affected nerve is rated 40 percent disabling, severe incomplete paralysis of the affected nerve with marked muscular atrophy is rated 60 percent disabling, and complete paralysis of the affected nerve is rated 80 percent disabling.  

The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions."  38 C.F.R. § 4.6.  Use of terminology such as “mild” or “severe” by VA examiners and others, although evidence to be considered by the Board, are not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves.  

The Veteran filed a claim of service connection for a low back disorder in September 2010.  He subsequently filed a claim for radiculopathy of the lower extremities in April 2015.  

Submitted in support of the Veteran’s claim were treatment report from Nebraska Spine Center dated from January 2009 through March 2011.  These records indicate that the Veteran was seen in consultation in January 2009 with complaints of low back pain and numbness in the left lower extremity; he was diagnosed with left lower extremity numbness.  He was next seen in November 2010 with complaints of low back pain and intermittent left leg numbness and tingling.  He reported that his symptoms were due to a work-related injury which occurred on August 24, 2008.  Since then he has had flareups off and on.  His most recent flare up was the first week in October of this year in which he had a long day and a stressful day at work and began having significant back pain and left lower extremity symptoms; he noted that he stopped working secondary to his discomfort on October 13, 2010.  On examination, it was noted that the Veteran experiences numbness and he limps when walking.  Sensation to pinprick was decreased in the left lower extremity in the S1 dermatome, but sensation to pinprick was intact to remaining left lower extremity dermatomal and peripheral nerve distributions; sensation was intact in the right lower extremity.  The impression was left leg pain, lumbar radiculopathy/radiculitis.  

An EMG/Nerve conduction study in December 2010 indicates that the Veteran had a history of left leg pain and paresthesias for the past 1.5 years.  It was noted that the Veteran was referred for left lower extremity electrodiagnostic examination, with possible neurological involvement.  Evaluation of the left sural sensory nerve showed reduced amplitude.  There was electrodiagnostic evidence of a left sided, mild, chronic L5 radiculopathy without active or ongoing denervation.  

Among the records from the Nebraska Spine Center was a presurgical conference report dated March 7, 2011, indicating that the Veteran was evaluated for a proposed L4-S1 fusion.  It was noted that he was having pain in the low back and legs.  It was also noted that he had an EMG which showed chronic left sided L5 radiculopathy.  Lower extremity neurological examination revealed trace ankle reflexes, 2-knee reflexes, and he had a slight weakness of the left EHL, slight sensory deficits in the L5 dermatome possessing his L5 radiculopathy.  The lower extremity pulses were present and symmetrical.  

On September 29, 2011, the Veteran was seen for a postsurgical examination.  At that time, he reported that his pain had drastically improved compared to his pre-operative status.  He had very little lower extremity pain.  A neurological examination revealed no decreased response to tactile stimulation of both legs.  Motor strength, reflexes and sensation were normal.  Gait and stance were normal.  The pertinent diagnosis was low back pain.  The examiner stated that the Veteran was overall much improved and had very little to no leg pain residual.  The examiner indicated that the Veteran was able to return to work with restrictions to light duty.  When seen in December 2011, the examiner indicated that he reviewed the Veteran’s long-term recommendations and believed that he had achieved maximum medical improvement.  Unfortunately, it is unlikely that he would be able to return to his previous occupation.  He released the Veteran to work with a permanent restriction of no lifting greater than 30 pounds; no other restrictions were set after review of his functional capacity evaluation.  

VA examination in December 2011, muscle strength testing was normal in the lower extremities.  Deep tendon reflexes were 1+.  Sensory examination was normal.  Straight leg raising was negative.  In response to the question of whether the Veteran had radicular pain or any other signs or symptoms due to radiculopathy, the examiner checked “no.”  Thus, no radiculopathy was noted in either lower extremity.  

On the occasion of a DBQ examination for evaluation of the lumbar spine in June 2015, muscle strength testing was normal and deep tendon reflexes were normal in both lower extremities.  The examiner noted that the Veteran had mild paresthesias and mild numbness in the right and left lower extremities.  The Veteran did report experiencing numbness in his toes with prolonged standing or sitting.  The examiner noted that the Veteran had mild radiculopathy involving the sciatic nerves; that is, the L4/L5/S1/S2/S3 nerve roots.  

On the occasion of another DBQ examination for back conditions in December 2015, the Veteran reported having numbness of the feet twice a week and rare shooting pains.  The examiner indicated that the Veteran had mild intermittent pain and numbness in the lower extremities.  The examiner noted that the Veteran had mild radiculopathy involving the sciatic nerves; that is, the L4/L5/S1/S2/S3 nerve roots.  

During a DBQ examination in November 2019, the Veteran indicated that he continued to have some variable pain in his back several times a per day and more constant if he has overdone or picked up a grandchild or lift much above 25 to 30 pounds; he also reported some numbness in both feet on the big toe of each foot, left greater than right.  On examination, there was decreased sensation in the feet and toes.  The examiner indicated that the Veteran had mild paresthesias and numbness in both lower extremities.  The examiner noted that the Veteran had mild radiculopathy involving the sciatic nerves; that is, the L4/L5/S1/S2/S3 nerve roots.  

A)  Rating in excess of 20 percent prior to September 29, 2011 and from December 22, 2015.

The Veteran's medical records during the periods in question do not describe results or findings consistent with ratings in excess of 20 percent.  As noted above, on examination in November 2010, it was noted that the Veteran experiences numbness and he limped when walking.  Sensation to pinprick was decreased in the left lower extremity in the S1 dermatome.  The impression was left leg pain, lumbar radiculopathy/radiculitis.  During the presurgical evaluation in March 2011, a neurological examination of the left lower extremity revealed trace ankle reflexes, 2-knee reflexes, and he had a slight weakness of the left EHL, slight sensory deficits in the L5 dermatome possessing his L5 radiculopathy.  Similar findings were noted on examinations in December 2015 and November 2019.  The examiner indicated that the Veteran had mild bilateral lower extremity sciatic nerve radiculopathy.  

Applying the regulations to the facts in the case, the evidence of record shows that the Veteran's left lower extremity is mild in severity and a 20 percent rating was assigned to reflect his subjective symptom complaints.  The evidence of record does not show that the Veteran has moderately severe left lower extremity radiculopathy.  Therefore, the criteria for schedular ratings in excess of 20 percent for the Veteran's left lower extremity radiculopathy have not been met.  

The Board has considered all other potentially applicable Diagnostic Codes but has found that no other Diagnostic Codes would result in more favorable findings.

Accordingly, the criteria for initial schedular ratings in excess of 20 percent for the Veteran's left lower extremity radiculopathy have been not been met, and his claims are denied.  

B)  A rating in excess of 10 percent from September 29, 2011 to December 21, 2015

For the period from September 29, 2011 to December 21, 2015, the Board finds that the criteria for a 10 percent rating under DC 8520 are more nearly approximated as of September 29, 2011, at which time it was noted that the Veteran’s pain had drastically improved compared to his pre-operative status.  A neurological examination revealed no decreased response to tactile stimulation of both legs.  Motor strength, reflexes and sensation were normal.  The examiner stated that the Veteran was overall much improved and had very little to no leg pain residual. based on intermittent pain and numbness with decreased reflexes.  See 38 C.F.R. § 4.124a.  The evidence shows that there is no functional impairment on use of the LLE decreased sensation, or weakness.  Additionally, the December 2011 VA examination demonstrated normal reflexes of the LLE.  The Veteran has not had atrophy of the LLE, or complete paralysis of the nerve with the manifestations specified in DC 8520.  And, in June 2015, the pain and numbness of the LLE, with no other signs, symptoms, or functional impairment, and with the VA examiners characterizing the radiculopathy as mild in nature, warrants a 10 percent rating under DC 8520, but no higher.  

The symptoms associated with the Veteran’s left lower extremity radiculopathy have consistently been described as mild.  The Board thus finds the description of the Veteran’s radicular symptoms to be probative.  There have been no objective findings of loss of muscle mass, atrophy, or function indicated.  As noted, where, as here, the involvement is wholly sensory, the rating should be for mild, or, at most, the moderate degree.  As only sensory impairment was noted on the neurological examination, and all impairments described as mild, the Board finds that a rating in excess of 10 percent is not warranted.  

In deciding the claim, the Board considered the Veteran’s competent and credible lay statements regarding the severity of his radicular symptoms.  While, the Veteran’s reports of his radicular symptoms are probative, the Board finds that the objective medical evidence with clinical evaluation of the severity of the pertinent disability symptoms is entitled to more probative weight regarding the severity of his symptoms.  

As the preponderance of the evidence weighs against the award for an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  

3.   Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to December 22, 2015, and in excess of 20 percent thereafter

The Veteran's right lower extremity radiculopathy is assigned a 10 percent rating effective April 16, 2015, and a 20 percent rating effective December 22, 2015, under DC 8520.  

A.  Right leg radiculopathy rating in excess of 10 percent prior to December 22, 2015.  

The Board finds no support for assignment of a 20 percent evaluation for the Veteran's right lower extremity radiculopathy.  In so finding, the Board notes that, during a VA examination in December 2011, muscle strength testing was normal in the lower extremities.  Deep tendon reflexes were 1+.  straight leg raising was negative.  In response to the question of whether the Veteran had radicular pain or any other signs or symptoms due to radiculopathy, the examiner checked “no.”  Thus, no radiculopathy was noted in either lower extremity.  On the occasion of another VA examination in June 2015, the examiner reported only occasional numbness of the toes with prolonged standing or sitting.  The examiner noted that the Veteran had no sensory deficits.  Muscle tone was normal.  Deep tendon reflexes were 2+ with knee jerks, ankle jerk, and plantar flexion.  Sensory examination was reported as normal.  Motor examination was 5/5 in lower extremities.  Muscle tone was reported to be normal.  There was no atrophy and no gait abnormality.  

Considering the pertinent evidence in light of the above, the Board finds that the medical evidence reflects that, prior to December 22, 2015, the Veteran's radiculopathy in the right lower extremity has caused disability comparable to no more than mild incomplete paralysis of the sciatic nerve, manifested by complaints of numbness in his toes, but with no loss of muscle mass, strength, or function attributed to this service-connected disability.  As noted, where, as here, the involvement is wholly sensory; the rating should be for the mild, or, at most, the moderate degree.  Here, only sensory impairment was noted on the neurological evaluation, and the record does not otherwise provide a basis for more than a 10 percent rating.  

Despite the complaints and findings noted above, the overall disability picture is not found to be comparable to moderate incomplete paralysis of the sciatic nerve.  Accordingly, there is no basis for a rating in excess of 10 percent for radiculopathy of the right lower extremity for the period prior to December 22, 2015.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  

B.  Rating in excess of 20 percent after December 22, 2015.

After a careful review of the record, the Board finds that the Veteran's radiculopathy in the left lower extremity does not warrant an evaluation in excess of 20 percent.  The Board has based its conclusions on the medical evidence outlined above, which shows symptoms productive of no more than moderate incomplete paralysis of the sciatic nerve in the left lower extremity, which includes findings of chronic severe pain, moderate numbness in the left lower extremity, with tingling down the left leg.  On examination in December 2015, the Veteran complained of shooting pain and numbness in the legs and toes.  The examiner noted involvement of L4/L5/S1/S2/S3 sciatic nerve.  Thereafter, in November 2019, the DBQ examiner noted that the Veteran had decreased sensation in the feet.  

In light of the foregoing, the Board finds that the Veteran's symptoms of a neurological manifestation of the right lower extremity more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 8520, for moderate incomplete paralysis.  In the absence of findings which indicate that the neurological manifestation is productive of moderately severe incomplete paralysis, there is no schedular basis for an initial disability rating in excess of 20 percent.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  All things considered, the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation in excess of 20 percent.  

In summary, for the reasons and bases expressed above, the Board concludes that an initial disability rating in excess of 20 percent for radiculopathy of the left lower extremity is not warranted beginning December 22, 2015.  Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The benefit sought on appeal is accordingly denied.  

4.   Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD), lumbar spine, post lumbar fusion 

The Veteran essentially contends that his lumbar spine disability is more disabling than reflected by the rating currently assigned.  

The Veteran's service-connected lumbar spine disability is rated under Diagnostic Code 5243.  Under that diagnostic code and others for evaluating the spine, the General Rating Formula for Diseases and Injuries of the Spine is used.  The General Rating Formula provides that 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, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a (Diagnostic Code 5242).  

Following the rating criteria, note (1) provides that the rater should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  

Note (2): (See also Plate V.) [With respect to the lumbar spine]-For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  

Note (4): Round each range of motion measurement to the nearest five degrees.  

Note (5): 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.  

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  38 C.F.R. § 4.71a.  

Additionally, the Diagnostic Code pertaining to rating the Veteran's disability provides that intervertebral disc syndrome may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Under this formula, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a (Diagnostic Code 5243).  

Following the rating criteria, note (1) provides that: For purposes of evaluations under Diagnostic Code 5243, 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.  

Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a (Diagnostic Code 5243).  

In conjunction with his claim for service connection, the Veteran was afforded a DBQ examination in December 2011.  It was noted that the Veteran underwent a spinal fusion in March 2011.  He reported working for FedEx freight for the past 14 years; he has been off all pain medications for about 2 months.  The Veteran reported flares with prolonged standing or walking too fast or bending and twisting.  He reported difficulty sitting for 45 minutes and the Veteran reported 30-pound weight restrictions.  Forward flexion was to 60 degrees with painful motion starting at 50 degrees.  Extension was to 5 degrees with pain starting at 5 degrees.  Right lateral flexion was to 20 degrees, with painful motion starting at 15 degrees.  Left lateral flexion was to 15 degrees.  Lateral rotation was to 20 degrees, bilaterally, with no objective evidence of painful motion.  The Veteran did not have any additional limitation in range of motion following repetitive use testing.  He did have functional loss caused by less moment than normal, weakened movement and pain on movement.  He did not have any guarding or muscle spasm of the thoracolumbar spine.  Muscle strength testing was normal, and no atrophy was noted.  The pertinent diagnosis was degenerative disc disease, lumbar spine, status post lumbar fusion.  

At a June 2015 DBQ examination, the Veteran reported flareups of back pain with prolonged sitting, prolonged standing or pushing the lawn mower too much.  He did not report any functional loss.  Range of motion revealed forward flexion to 60 degrees, extension to 10 degrees, and lateral flexion and lateral rotation to 15 degrees, bilaterally.  The examiner indicated that pain was noted on examination but does not result in or cause functional loss.  There was no objective evidence of localized tenderness or pain on palpation of the joint.  The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or range of motion after three repetitions.  The examiner noted that the Veteran had guarding resulting in abnormal gait; there was loss of lumbar lordosis.  Muscle strength was normal; no muscle atrophy was noted.  DTR were 2+.  Sensory examination was normal.  Straight leg raising was negative.  No ankylosis was noted.  The examiner indicated that the Veteran does not have IVDS of the lumbar spine.  The Pertinent diagnosis was DDD, lumbar spine, post lumbar fusion and mild L3-L4 and L4-L5 retrolisthesis.  The Veteran was instructed to avoid heavy lifting, or lots of pushing and pulling due to his back; with prolonged sitting he has to stand or with prolonged standing he has to sit.  

In December 2015 DBQ examination, the Veteran reported flareups of back pain with prolonged sitting, prolonged standing or bending.  Range of motion revealed forward flexion to 60 degrees, extension to 20 degrees, with lateral flexion and lateral rotation all to 25 degrees, bilaterally.  The examiner indicated that pain was noted on examination with forward flexion and extension.  There was evidence of pain with weight bearing.  There was objective evidence of localized tenderness and pain on palpation across the lower back.  The Veteran was able to perform repetitive use testing with at least three repetitions, and there was additional loss of function or range of motion after three repetitions.  After repetitive use testing, forward flexion was to 35 degrees, extension to 20 degrees, with lateral flexion and lateral rotation all to 20 degrees, bilaterally.  The examiner noted that the Veteran had guarding resulting in abnormal gait; there was loss of lumbar lordosis.  Muscle strength was normal; no muscle atrophy was noted.  DTR were 1+.  Sensory examination was normal.  No ankylosis was noted.  The examiner indicated that the Veteran has IVDS of the lumbar spine, but he did not have any episodes of acute signs or symptoms that required bed rest prescribed by a physician.  The Pertinent diagnosis was lumbar DDD, with fusion and radiculopathy.  

The Veteran was afforded a recent DBQ examination in November 2019, at which time he reported that he continued to have some variable pain in his back several times per day and more constant with activity or lifting.  The Veteran noted that flare-ups of the back occur several times per day; they are described as mild to moderate in severity and last several minutes to a few hours.  The Veteran indicated that flare-ups are precipitated by overexertion or lifting, sometimes sleeping; the flare-ups are alleviated by stretching or heat.  Range of motion revealed forward flexion to 60 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, with left lateral flexion and lateral rotation all to 10 degrees, bilaterally.  The examiner indicated that the Veteran was pretty stiff and lacked range of motion, so he had a lot more trouble dressing, especially putting on his shoes and socks.  The examiner indicated that pain was noted on examination and caused functional loss.  There was evidence of pain with weight bearing.  There was objective evidence of localized tenderness and pain on palpation across the lumbar area, the severity was mild.  After repetitive use testing, forward flexion was to 50 degrees, extension to 0 degrees, right lateral flexion was to 10 degrees, and left lateral flexion and lateral rotation all to 5 degrees, bilaterally.  Muscle strength was normal; no muscle atrophy was noted.  DTR were 1+.  Sensory examination was normal.  No ankylosis was noted.  The examiner indicated that the Veteran has IVDS of the lumbar spine, but he did not have any episodes of acute signs or symptoms that required bed rest prescribed by a physician.  

The Board finds that the Veteran's lumbar disability does not approximate the criteria for a rating in excess of 20 percent.  There is no evidence of record that the Veteran's lumbar disability has caused forward flexion limited to 30 degrees or less.  The Veteran's VA treatment records do not indicate that the Veteran had a greater restriction of range of motion than found on the DBQ/VA examinations.  

The Board has considered the Veteran's reports of back pain with prolonged sitting, prolonged standing or bending; he has also reported that flare-ups are precipitated by overexertion or lifting, sometimes sleeping.  The Board also recognizes that the examiner indicated that the Veteran was pretty stiff and lacked range of motion, so he had a lot more trouble dressing, especially putting on his shoes and socks.  Regardless of the examiner's comment, the Veteran's reports of symptoms that occur during flare-ups do not reasonably encompass reduced range of motion or ankylosis or incapacitating episodes.  Even taking into account these symptoms during flare-ups, his disability does not approximate a rating higher than the 20 percent assigned.  The evidence does not demonstrate that the Veteran’s thoracolumbar spine was ankylosed at any time during the appeal period, as noted by range of motion; likewise, the Veteran’s forward flexion of his thoracolumbar spine was not limited to 30 degrees or less at any time during the appeal period.  Therefore, an increase to a 40 percent disability rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine.  

With regard to intervertebral disc syndrome, the evidence must demonstrate incapacitating episodes lasting a total duration of at least four weeks during the past twelve months to warrant an increased rating.  The December 2011 and June 2015 examination reports indicated that the Veteran did not have IVDS of the lumbar spine.  Moreover, while the December 2015 and November 2019 DBQ examiners noted that the Veteran had IVDS of the lumbar spine, the examiner also noted that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  As such, there is no competent and probative evidence of record showing the Veteran had incapacitating episodes during the period in question lasting a total duration of at least four weeks.  Therefore, a rating in excess of 20 percent is not available for incapacitating episodes.  See 38 C.F.R. § 4.71a (2018).  

The Board has also considered whether the Veteran has neurological manifestations of the lumbar spine that may be separately rated under an appropriate diagnostic code.  The Board notes that separate ratings have been assigned for radiculopathy of the lower extremities, and they are discussed in this decision.  As to any other neurological manifestations, no associated objective neurological abnormalities have been shown by the evidence such as to warrant a separate rating under Note 1.  

The preponderance of the evidence is against the claim for a rating in excess of 20 percent for the Veteran's service connected DDD, lumbar spine, post lumbar fusion, there is no reasonable doubt to be resolved, and an increased rating is not warranted.  38 U.S.C § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

5.   Entitlement to an initial evaluation in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD)

The Veteran essentially contends that his PTSD is more disabling than reflected by the currently assigned rating.  

The rating for the Veteran's PTSD is determined by application of 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that code, a 30 percent evaluation is warranted when there is 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 rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating requires 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); or the inability to establish and maintain effective relationships.  

A 100 percent rating requires 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; or memory loss for the names of close relatives, own occupation, or own name.  

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.  38 C.F.R. § 4.126 (a).  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. Id.  The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (b).  

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013).  In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.  Id. at 118.  Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating.  Id. at 116.  

The Veteran's initial claim for service connection for PTSD (VA Form 21-526) was received in April 2015.  In conjunction with his claim, the Veteran was afforded a DBQ examination in June 2015.  At that time, he reported having six siblings; he has remained married to his wife of 17 years and has one biological daughter and two stepchildren from a previous marriage.  The has one friend which whom he socializes, and he has one brother with whom he talks on the phone on occasion.  The Veteran denied history of counseling or psychotherapy.  He denied history of medication management for mental health.  There is no mental health hospitalization.  It was noted that the Veteran was truck driver for Fed Ex as a freight driver for local deliveries; 14 years.  The Veteran worked for the railroad and then drove truck, drove a concrete truck for 5 to 6 years.  The examiner concluded that the Veteran’s PTSD resulted in 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.  

During a subsequent DBQ examination in December 2015, the Veteran denied having any mental health treatment since his last examination in July 2015; he also denied being prescribed any medications for mental health.  The Veteran did report that he still has nightmares and gets angry; he does not have a lot of friends and reported being antisocial.  On mental status examination, the examiner noted that the Veteran was casually dressed and neatly groomed.  The examiner noted that the Veteran was pleasant, open, cooperative, and smiled easily during the interview.  His responses to questions were brief and non-elaborative.  He was oriented in all spheres.  His attention and concentration were intact.  He describes his mood as "probably depressed, a little frustrated, not really scared, but unhappy, or sad."  His insight and judgment were intact.  The Veteran reported interrupted sleep.  His memory for remote, recent, and immediate events were intact.  The examiner opined that the Veteran’s PTSD resulted in 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.  

On the occasion of another DBQ examination in November 2019, the Veteran related that he remained married to his wife of 21 years and he described the quality of his marriage as good.  The Veteran noted that they don’t have any children together; he does have one child from a previous marriage, and he sees her four times a year.  He indicated that he has a couple of brothers and a friend.  The Veteran stated that he last worked in October 2010 as a FedEx driver and remained employed until 2012; the job ended because of a back injury.  The Veteran reports that he developed nightmares while in Vietnam; since service, he continues to experience nightmares 4 to 5 times per year.  He also reported experiencing flashbacks.  He currently experiences anxiety.  He denied panic attacks but wakes in a cold sweat when he has nightmares.  He previously experienced hypervigilance but no longer does.  He also reported experiencing emotional numbing.  He noted that the PTSD causes him to be quick-tempered; however, he denied anger outbursts currently or historically.  He identified current depression symptoms of sadness, lethargy, anhedonia, decreased sleep and irritability but denied any history of serious suicidal ideations.  He has never been hospitalized for psychiatric reasons.  Socially, he doesn’t socialize; he prefers to be alone or with his wife.  Cognitively, the Veteran said he remembers most important things but occasionally forgets that his dog is outside. He denied any real concerns with cognitive functioning overall.  

The examiner noted that the Veteran's PTSD was manifested by symptoms that include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  On mental status examination, it was noted that the Veteran was oriented in all spheres.  The Veteran was dressed in clean casual clothes and neatly groomed.  Speech was normal and easy to understand; he was fully engaged throughout the evaluation.  Rapport was easy to establish.  Thoughts were organized and logical.  Abstract reasoning was intact.  Insight and judgement were both good.  Mood and affect were tense.  Attention and concentration were good.  Memory was intact.  The examiner opined that the Veteran's PTSD resulted in 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.  

A.  Initial rating in excess of 30 percent prior to November 18, 2019.

For the period prior to November 18, 2019, the Board finds that the Veteran's PTSD symptoms most nearly approximated the 30 percent evaluation.  In this regard, the Board notes that little in the record, including the Veteran’s lay statements, suggest that the criteria for a schedular evaluation in excess of 30 percent are met.  The specific symptoms associated with the Veteran's PTSD are considered by 30 percent criteria.  Significantly, the medical evidence of record, including the June 2015 and December 2015 DBQ examinations, reflect that the Veteran complained of depression, anxiety, chronic sleep impairment, and social isolation.  There is no indication of symptoms associated with a 50 percent evaluation during this period, to include panic attacks, impaired judgment, and impaired thinking.  Nor does the evidence show symptoms of like kind to those listed for higher ratings.  It is noteworthy that, following the DBQ examinations in June 2015 and December 2015, the examiners all concluded that the Veteran’s PTSD resulted in mild or transient symptoms.  The evidence does not show that the Veteran has had a flattened affect, speech problems, panic attacks more than once a week, difficulty understanding complex demands, impairment of short- or long-term memory, impaired judgment, or impaired abstract thinking.  

Based on this evidence, the Board finds that the Veteran's PTSD symptoms most nearly approximate the criteria associated with the assigned 30 percent evaluation during the period prior to November 18, 2019.  It was not until November 18, 2019, that it is ascertainable from the facts that his disability on appeal approximated the criteria for a higher rating.  For these reasons, the Board finds that preponderance of the evidence is against assigning a rating higher than 30 percent for the period prior to November 18, 2019 and the benefit of the doubt rule does not apply.  38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018).  

B.  Rating in excess of 50 percent from November 18, 2019.

Turning next to the appeal period from November 18, 2019, the Board concludes that the competent and objective evidence of record demonstrates that the Veteran's disability picture for his service-connected PTSD most nearly approximates the criteria for the currently assigned 50 percent evaluation under Diagnostic Code 9411, and no more.  The Veteran has been described as having PTSD symptomatology that includes depressed mood, anxiety, chronic sleep impairment, irritability, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships.  However, the Veteran's symptoms, as evidenced by the November 2019 DBQ examination report, do not show 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; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships.  See 38 C.F.R. § 4.130, DC 9411 (discussing the evidence necessary for the next higher evaluation of 70 percent).  

In light of the above clinical findings, and the examiner's description of the Veteran's PTSD symptomatology, the Board finds that the Veteran's disability is characteristic of pertinent disability criteria warranting no more than the currently assigned 50 percent rating.  

As previously noted, the evidence of record is totally devoid of any report of symptoms of the same frequency and severity as illogical or irrelevant speech. There was also no evidence of any symptoms such as thought disorder, psychosis, obsessional rituals, near-continuous panic, impaired intellectual functioning, or impaired judgment of the severity, frequency, and duration contemplated in the higher ratings.  Thus, the Board finds that the evidence does not show that the Veteran's PTSD symptoms are of such severity to warrant a rating of 70 percent or higher.  Again, no examiner who evaluated the Veteran during this part of the appeal period concluded that the Veteran's PTSD symptoms resulted in deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood.  Rather, the November 2019 examiner stated that the Veteran's PTSD resulted in 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.  At the 2019 DBQ examination, the Veteran reported that he remained married to his wife of 21 years; and, he described the quality of his marriage as good, indicating that he prefers to spend most of his time with his wife.  Accordingly, the Board concludes that the Veteran does not meet or nearly approximate the level of disability required for an evaluation in excess of 50 percent for his PTSD for the period from November 18, 2019.  

Extraschedular Consideration.

The Board has considered whether referral for an extraschedular rating is warranted for the relevant periods on appeal. The Board finds that the Veteran's symptoms are contemplated both in kind and degree by the scheduler criteria.  Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration.  Thus, an analysis is not required in this case.  See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007).  See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board).  

In summary, the Board concludes that an initial rating in excess of 30 percent is not approximated for the period prior to November 18, 2019, and a rating in excess of 50 percent is not warranted for any period on appeal, and that the preponderance of the evidence is against granting higher ratings and against remanding for referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 (b) for any other period on appeal.  There is no reasonable doubt to resolve in this case.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.  

Effective Date

In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation, shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  

The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a).  The corresponding VA regulation expresses this rule as "date of receipt of claim or date entitlement arose, whichever is later."  38 C.F.R § 3.400 (o)(1).  

For increased rating claims, if the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred.  38 U.S.C. § 5110 (b)(2); 38 C.F.R § 3.400 (o)(2).  A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim.  See Hurd v. West, 13 Vet. App. 449 (2000).  

6.   Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to April 19, 2015

The Veteran contends that he is entitled to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to April 19, 2015.  

In pertinent part, unless otherwise specified, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to 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); 38 C.F.R. § 3.400.  The effective date for a TDIU claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date for TDIU is the date of receipt of claim.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).  See Hurd v. West, 13 Vet. App. 449 (2000) (Court applied 38 U.S.C. § 5110 (b)(2), which applies to increased rating claims, to a TDIU claim).  

In the February 2016 DRO decision that is the subject of this appeal, the RO granted entitlement to a TDIU and to DEA benefits.  The RO assigned an effective date of April 19, 2015, which was noted to be the date the Veteran met the schedular criteria for entitlement to a TDIU and, therefore, the date on which he was found to have a total service-connected disability, permanent in nature.  

The Veteran seeks an effective date earlier than April 19, 2015 for the award of these benefits.  He has not provided specific argument as to why he should be awarded benefits at an earlier date for either award, but his attorney has hinged the assertion that the Veteran is entitled to an earlier effective date for the grant of entitlement to a TDIU on the contention that he was prevented from working by his service-connected disabilities prior to the April 19, 2015 date assigned by the RO.  

A TDIU may be assigned on a schedular basis where the schedular rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  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.  See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018).  

Where the percentage requirements for TDIU are not met, a total disability rating may be assigned on an extraschedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability or disabilities.  38 C.F.R. § 4.16 (b).  The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance.  Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service or designee.  See Bowling v. Principi, 15 Vet. App. at 1, 10 (2001).  

The Veteran filed a formal claim for entitlement to a TDIU (VA Form 21-8940) that was received on May 15, 2015, noting that his service connected DDD, lumbar spine, post lumbar fusion prevented him from securing of following any substantially gainful occupation.  

At the time entitlement to a TDIU was established by the RO in February 2016, the Veteran was service connected for PTSD (30 percent disabling); type II diabetes mellitus (20 percent disabling); degenerative disc disease (DDD), lumbar spine, post lumbar fusion (20 percent disabling); right lower extremity radiculopathy rated as 10 percent effective April 17, 2015 and 20 percent effective December 22, 2015; left lower extremity radiculopathy rated as 10 percent effective September 29, 2011 and 20 percent effective December 22, 2015; and tinnitus, rated as 10 percent disabling, effective September 15, 2010.  The combined evaluation was 70 percent effective April 19, 2015.  Prior to April 19, 2015, the combined disability rating for the Veteran's service-connected disabilities was 50 percent from July 1, 2011, and 60 percent from April 17, 2015.  

In the Veteran's application for a TDIU (VA Form 21-8940), dated in April 2015, the Veteran contended that his service-connected degenerative disc disease of the lumbar spine, post lumbar fusion, affected his full-time employment in October 2010.  He reported that he last worked full time in October 2010, and he became too disabled to work on March 8, 2011.  Prior to March 2011, he worked as a delivery truck driver for FedEx.  The Veteran stated that he had completed one year of college, and he received some training in accounting.  He also reported that, as of March 2011, he had not tried to obtain employment since he became too disabled to work.  

In a related VA Form 21-4192 Request for Employment Information in Connection with Claim from May 2015, the Veteran's employer reported that the Veteran had worked for them as a city driver from December 8, 1997 to January 20, 2012.  

Looking at the evidence of record from the period on appeal prior to April 19, 2015, the records do not reflect a disability picture that would prevent substantially gainful employment.  Significantly, evidence of record prior to April 19, 2015 include private treatment records from Drs. Brian K. Buhlke and Michael Longley, dated from January 1999 to June 2014, which show that the Veteran received treatment for chronic low back pain with radiculopathy down the left leg, following his lumbar fusion in March 2011; he also received follow up evaluation for diabetes mellitus.  Also of record were VA progress notes dated from January 2012 through May 2015, showing ongoing treatment for several disabilities, including chronic low back pain.  A VA progress note dated April 26, 2013 reflects an assessment of low back pain, stable.  

Based on the evidence described above, the Board finds that, although the Veteran's service-connected disabilities may have negatively impacted his employability during the period on appeal prior to April 19, 2015, they did not preclude his participation in a substantially gainful occupation.  The evidence of record suggests that, while the Veteran experienced limitations in performing tasks that involved prolonged walking, prolonged sitting, or other activities such as heavy lifting, the Veteran was not precluded from performing work that primarily involved desk work or sitting or otherwise required minimal time on his feet and frequent breaks.  The record does not show that the combination of his psychiatric and physical service-connected disabilities would render him unable to secure and follow all substantially gainful occupations, given his educational and experience background.  

Thus, based on the above, the Board finds that the preponderance of the evidence is against the finding that the Veteran was unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities during the period on appeal prior to April 19, 2015.  Therefore, the Board finds that entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities is not warranted for the period on appeal prior to April 19, 2015.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  

In light of the treatment records and medical opinions provided, as well as the other facts shown in this case, the Board finds that, considering the record as a whole, the Veteran's claim for a TDIU is not warranted.  Ultimately, the preponderance of evidence is against a finding that the impairment resulting from the Veteran's service connected DDD of the lumbar spine, PTSD, diabetes mellitus, and radiculopathy of the lower extremities has ever prevented him from substantially gainful employment prior to April 19, 2015.  As such, the Veteran's claim of entitlement to TDIU must be denied.  Based on a review of the medical findings, the Board finds that the preponderance of the evidence indicates that the Veteran's service-connected disabilities did not prohibit him from securing and following gainful employment prior to April 19, 2015.  In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.  

Additionally, the Board has reviewed the record and finds no basis for any form of extra-schedular consideration.  In fact, in an Administrative Decision, dated in February 2016, the Director of Compensation Service determined that the totality of the evidence does not show any extra-schedular entitlement to TDIU or increased evaluation is warranted.  The Director stated that the VA examinations identified no disability that precludes employment activity under any circumstances.  It was concluded that the record failed to show unemployability due solely to service-connected disabilities, pursuant to Blackburn v. Brown.  

Following an administrative review in May 2017, the Director of Compensation determined that the record does not demonstrate that the Veteran was precluded from performing sedentary employment.  The director concluded that review of the evidentiary record, with the application of reasonable doubt, does not satisfactorily demonstrate that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities from January 21, 2012 to April 19, 2015.  Therefore, a grant of extra-schedular entitlement to a TDIU prior to April 19, 2015 is not warranted.  

7.   Entitlement to an effective date earlier than April 19, 2015 for the grant of basic eligibility to Dependents' Educational Assistance (DEA)

For the purposes of dependents' educational assistance (DEA) under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability.  38 U.S.C. §§ 3501, 3510, 3512; 38 C.F.R. §§ 3.807 (a), 21.3021.  

In this case, the RO granted the Veteran DEA benefits in the February 2016 rating decision.  The Veteran's DEA benefits were assigned an effective date of April 19, 2015, based on the date that the Veteran became eligible for a total disability evaluation based in individual unemployability (TDIU).  The Veteran asserts that he is entitled to an effective date earlier than April 19, 2015 for the award of DEA benefits.  

The Veteran was not eligible for the increased disability rating or for the award of a TDIU prior to April 19, 2015.  The Veteran has not been otherwise assigned a permanent total disability rating on any other basis.  

As noted above, the effective date for the Veteran’s grant of TDIU remains to be April 19, 2015.  DEA benefits may not be awarded prior to the effective date of an award for a permanent and total disability rating.  38 U.S.C. §§ 3501, 3510.  Consequently, since the effective date of the Veteran's TDIU in this case is April 19, 2015, the Veteran is not entitled to an effective date earlier than April 19, 2015 for his DEA benefits.  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

 

 

JAMES G. REINHART

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Department of Veterans Affairs

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.