Citation Nr: 21000679 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-37 114 DATE: January 5, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for depressive disorder is granted. Entitlement to a 40 percent rating, but no higher, from January 30, 2020, for intervertebral disc syndrome of the lumbar spine is granted. Entitlement to an initial rating in excess of 20 percent prior to January 30, 2020, for intervertebral disc syndrome of the lumbar spine is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the left knee is denied. REMANDED Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s unspecified depressive disorder symptoms result in an inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however, total occupational and social impairment has not been shown. 2. Prior to January 30, 2020, the Veteran’s lumbar spine intervertebral disc syndrome was manifest by flexion functionally equivalent to 70 degrees with pain. 3. From January 30, 2020, the Veteran’s lumbar spine intervertebral disc syndrome was manifest by flexion functionally equivalent to 35 degrees with pain. 4. The Veteran’s left lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis. 5. The Veteran’s right lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis. 6. The Veteran’s left knee patellofemoral syndrome is manifest by flexion functionally limited to 60 degrees with pain. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 2. From January 30, 2020, the criteria for a rating of 40 percent, but no higher, for lumbar spine intervertebral disc syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. Prior to January 30, 2020, the criteria for a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 4. The criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for a rating in excess of 10 percent for patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2011 to February 2016. She testified before the undersigned Veterans Law Judge at an August 2019 travel Board hearing. The transcript is of record. 1. Entitlement to an initial rating in excess of 50 percent for unspecified depressive disorder The Veteran seeks a higher rating for her depressive disorder, currently rated at 50 percent disabling. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did cause the level of impairment associated with a 70 percent rating but did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA examined the Veteran on January 2020. The examiner diagnosed the Veteran with depressive disorder, unspecified and alcohol abuse. The examiner attributed the following symptoms to depressive disorder: depressed mood; mild memory loss; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity. The examiner also noted obsessive cleaning. VA previously examined the Veteran in November 2018. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The examiner further opined that the Veteran’s overall functioning resulted in occupational and social impairment with reduced reliability and productivity. Although the examiners in both the January 2020 and November 2018 examinations used the functional language mirrored in the criteria for a 50 percent rating, they also identified several symptoms of the higher 70 percent rating including neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships and some obsessional rituals related to cleaning. These symptoms taken together caused social and occupational impairment including in her marital separation and at least in part her employment difficulties; a higher 70 percent rating is warranted. The Veteran does not meet the criteria for a 100 percent rating, however. The Veteran was not reported as having total occupational and social impairment or as having the symptoms listed in the 100 percent rating level. Notably, the Veteran reports that she continues to live, raise, and care for her young daughter. That action alone belies the notion of total occupational and social impairment. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The Board acknowledges that the January 2020 VA examination mentioned “passive thoughts of wanting to die.” Although this could be interpreted as suicidal ideation, the examiner did not check the suicidal ideation box. This indicates that the medical examiner’s opinion was that the thoughts were either historic or not of significant severity or frequency. Regardless, the notation would at most meet the 70 percent criteria for which the Veteran is rated and not the “persistent danger of hurting self” required in the 100 percent rating. 2. Entitlement to an initial rating in excess of 20 percent for intervertebral disc syndrome of the lumbar spine The Veteran contends that she is entitled to a higher rating for her lumbar spine disability. She is currently rated 20 percent disabled. The Veteran’s lumbar spine intervertebral disc syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 to 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that a rating of 40 percent, but no higher is appropriate from January 30, 2020. VA examined the Veteran in January 2020. The examiner measured the Veteran’s forward flexion to be to 35 degrees. This flexion exceeds the amount required by the 40 percent rating, but the examiner identified additional functional loss in terms of pain and lack of endurance during repeated use over time. Although the examiner could not describe this functional loss in terms of a range of motion, an upward adjustment is appropriate as the limitation of flexion was within a few degrees of the 30-degree cut off. A higher rating is not appropriate as the Veteran’s spine is not ankylosed. The Board finds that a rating in excess of 20 percent is not warranted for the period prior to January 30, 2020. VA previously examined the Veteran in October 2018. The examiner measured forward flexion of 70 degrees, a combined range of motion of 180 degrees, and without abnormal gait or contours. Although this would normally warrant a 10 percent rating, the Veteran’s disability was rated higher due to additional functional impact of pain. A higher rating is not warranted based on the expressed symptoms or functional limitations. These examinations indicated that the Veteran’s condition was not as severe at the time of the earlier examination and worsened at some point before the second. Absent some indication of when that worsening occurred, the earliest that the 40 percent rating is appropriate is the later examination. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Although the Veteran testified that she was prescribed bed rest during her Board hearing, the question asked about resting and staying off her feet. The examiners at the VA examinations identified that the Veteran had not been prescribed bed rest due to IVDS. The evidence in this regard is weighed more heavily towards the clearer question in the examination. Regarding neurological impairment, the Veteran has already been granted service connection for lower left and right extremity neuropathy. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent prior to January 30, 2020 and in excess of 40 percent from January 30, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy The Veteran seeks a higher rating for her left lower extremity radiculopathy. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. VA examined the Veteran in January 2020. The examiner found that the Veteran suffered from severe intermittent pain, paresthesias and/or dysesthesias, and numbness, but not from constant pain. Muscle strength tests were normal. Reflexes were normal. The sensory exam noted absent upper anterior thigh but was otherwise normal. The examiner opined that the Veteran had moderate incomplete paralysis of the femoral (anterior crural) nerve. VA also examined the Veteran in October 2018. The examiner generally indicated less severe symptoms with mild intermittent pain, paresthesias and/or dysesthesias, and numbness; normal reflexes; decreased sensitivity; and an overall assessment of mild incomplete paralysis of several lower extremity nerves. The Veteran is currently rated 20 percent, which corresponds to moderate incomplete paralysis. One examiner opined that the Veteran had moderate incomplete paralysis and one opined the incomplete paralysis was only mild. Neither opinion supports a higher rating. Nor does the evidence require a higher rating. The Veteran had some degree of missing sensory input, but the absence of sensory input on its own is at most ratable as moderate. The Veteran did not have noted motor function or trophic changes. The Veteran did have severe intermittent pain, paresthesias and/or dysesthesias, and numbness, in one examination but those do not directly correlate with a level of incomplete paralysis. The examiners’ opinions are the best evidence of the combined impact of the different aspects of the Veteran’s disability. The Veteran testified at her hearing that during a flare up her sciatic nerve “acts up” and she would be unable to put weight on it. This is consistent with the report from the examination that the Veteran has intermittent severe pain from her radiculopathy. She testified that she still mostly had control of her legs, and this functional report does not support an alteration of the severity of her radiculopathy. The Veteran’s representative stated at the hearing that the Veteran’s condition “was no longer mild, but had increased to a moderate level of severity.” The Board has considered rating the Veteran’s left lower extremity under Diagnostic Code 8526 for the anterior crural (femoral) nerve, but the examinations disagree over which nerve is impacted. The rating for moderate incomplete paralysis is the same for both diagnostic codes, however. The diagnostic code for the sciatic nerve has higher possible ratings than the femoral nerve, and so it is more Veteran friendly to leave the diagnostic code as is. Further the evidence indicates that the Veteran has a single nerve problem rather than multiple different nerve conditions that would justify a rating under both criteria In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for left lower extremity radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy The Veteran’s right lower extremity radiculopathy is the same as her left lower extremity with minor exceptions. First, the January 2020 examination identified the right lower extremity as impacting the sciatic nerve rather than the femoral nerve. As the left lower extremity was rated as the sciatic nerve this difference is immaterial. The January 2020 examination also included decreased sensory findings in the right foot compared to normal findings in the left. This difference is not sufficient to make the right lower extremity more akin to moderate-severe incomplete paralysis. The examiners opined at the same collective mild or moderate levels for the right lower extremity and the Veteran did not suggest additional functional impairment in that leg such that a different rating would be appropriate. 5. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the left knee The Veteran contends that she is entitled to a higher rating for her left knee. The Veteran’s patellofemoral syndrome of the left knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). VA examined the Veteran in January 2020. The examiner found flexion to 75 degrees and extension from 75 degrees to 0. There was pain and functional loss described as “with running.” Repeated use caused functional loss from pain that the examiner described as equivalent to flexion limited to 60 degrees. The examiner described flareups similarly with pain and flexion limited to 60 degrees. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee patellofemoral syndrome. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and swelling. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the approximately twice a month symptom would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Veteran testified at the Board hearing that she had severe pain, and had to elevate and heat the leg twice a month, but the Veteran has already been awarded an upward adjustment for the pain and swelling from what would otherwise be a noncompensable rating. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Diagnostic Code 5256 is not applicable as the Veteran’s knee is not ankylosed of functionally ankylosed. Diagnostic Code 5257 is not applicable as the Veteran has not reported subluxation or instability of the knee. Diagnostic Codes 5258 and 5259 are not applicable as the Veteran does not have a cartilage condition. Diagnostic code 5261 is not applicable as the Veteran can fully extend her leg. Diagnostic Codes 5262 and 5263 are not applicable as the Veteran does not have impairment of the tibia and fibula or genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability is remanded. The record does not indicate that VA attempted to solicit the Veteran’s employment history. VA is required to assist the Veteran by attempting to develop prior employment and education history. This information is necessary to determine her claim for individual unemployability. The matters are REMANDED for the following action: Take reasonable steps to obtain and verify a reasonably complete employment and education history from the Veteran. Document the history or the inability to obtain one in the claims folder. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.