Citation Nr: 21004533 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-17 405 DATE: January 27, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and post-concussion syndrome due to traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran’s right lower extremity radiculopathy results in no more than a moderate impairment. 2. The Veteran’s PTSD did not result in a total occupational and social impairment with persistent delusions or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place as contemplated by 100 percent disability rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to 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, 4.7, 4.120, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and post-concussion syndrome due to traumatic brain injury (TBI) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service for the United States Marine Corps from January 1999 to July 1999, and from June 2004 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board issued a decision which, in pertinent part, denied an evaluation in excess of 50 percent for the Veteran’s PTSD and post-concussion syndrome due to TBI; and granted an increased evaluation of 20 percent, but no higher for his right lower extremity radiculopathy. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2016, the Court issued a memorandum decision which vacated the Board’s October 2015 decision and remanded the matter for further consideration. In August 2017, the Board in turn remanded this matter for additional development. When the appeal returned to the Board in May 2018, the Board issued a decision which partially granted an increased evaluation of 70 percent for the Veteran’s for PTSD and post-concussion syndrome due to TBI. It then remanded the question of evaluation in excess of 70 percent, along with the radiculopathy issue, for further consideration following completion of additional development. In October 2019 and April 2020, the Board remanded this matter for completion of the previously requested development. These issues are now before the Board for appellate review. No claim for a finding of total disability based on individual unemployability (TDIU) is inferred as part and parcel of the appeal for increased rating of PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has reported he is gainfully employed, and has been throughout the appeal period. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  These duties have been satisfied in this case.  Appropriate notice was provided in March 2007, December 2008, and February 2014.  The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in the April 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Right Lower Extremity The Veteran’s radiculopathy of right lower extremity has been assigned a 20 percent rating under Diagnostic Code 8520. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve is indicated when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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. In October 2013, the Veteran was afforded a VA peripheral nerves condition examination. The Veteran was diagnosed with right leg radiculopathy. The Veteran reported that he had a pain, burning, and tingling sensation in his leg for a few days. He did not have a constant pain in his right lower extremity. He had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his right lower extremity. He had a normal muscle strength testing and reflex examination. He did not have muscle atrophy. He had a decreased in light touch sensation in the lower leg/ankle. He had a normal gait. He had a moderate severity of incomplete paralysis of the sciatic nerve. The examiner opined that the Veteran’s condition did not impact his ability to work. An August 2014 VA treatment note documented that the Veteran had chronic right sciatica leg pain. He indicated that he had shooting pain down his right leg. He also had radiating numbness and tingling down his right leg to his toes. In September 2017, the Veteran was afforded a VA peripheral nerves examination. The Veteran was diagnosed with bilateral lower extremity radiculopathy. He reported that he had numbness, tingling, and burning sensation down his legs. He had mild constant pain in his right lower extremity. He had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in his right lower extremity. He had a normal muscle strength testing. He did not have muscle atrophy. He had hypoactivity in his ankle. He had a normal sensory examination. He had a minimally antalgic gait. He had a moderate severity of incomplete paralysis of the sciatic nerve. The examiner opined that the Veteran’s peripheral nerve condition impacted his ability to work. The examiner noted that the Veteran missed around 5 days of work that year due to his back and leg condition. A December 2018 VA treatment note documented that the Veteran’s leg symptoms were described as numbness and tingling. He indicated that prolonged standing and sitting aggravated his pain. He noted that sneezing increased his leg pain also. In July 2020, the Veteran was afforded a VA peripheral nerves examination. The Veteran was diagnosed with right lower extremity radiculopathy. He reported that he had weakness, numbness, tingling, and pain in his right leg. The Veteran reported that he treated his condition by doing stretches and yoga. He also went to the VA chiropractor weekly and had massages and acupuncture when needed. He had moderate constant pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity. He did not have any intermittent pain in the right lower extremity. He had a normal muscle strength testing and reflex examination. He did not have muscle atrophy. He had decreased sensation for light touch in the lower leg/ankle and foot/toes. He did not have any trophic changes. He had an antalgia gait. He had moderate severity of incomplete paralysis of the sciatic nerve. He did not use an assistive device for his condition. The examiner opined that the Veteran’s condition impacted his ability to work. He noted that the Veteran lost one week of work in the last 12 months due to his condition. He noted that the Veteran had pain, numbness, and tingling that sometimes could be distracting. He had to be able to move around when needed. He noted that if the Veteran stood too long his condition symptoms could be severe. The Board finds that the criteria for a rating in excess of 20 percent are not met. To warrant a higher evaluation, there must be moderately severe radiculopathy. There is neither muscle atrophy nor trophic changes, and muscle strength has been tested as normal. He has some decreased light touch sensation, but reflexes are normal. The Veteran has described subjectively experiencing pain, numbness, and tingling in the right leg and foot. The Board does not doubt the lay reports, but the characterizations are subject to personal interpretation, and the medical evidence is given greater probative weight. Given this, the objective medical findings at examination take on even more importance and probity. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. PTSD with Post-Concussion Syndrome The Veteran’s PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Code 9411. A 50 percent disability rating is warranted when there is an occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted for 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); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In October 2013, the Veteran was afforded a VA examination. The Veteran was diagnosed with PTSD and a cognitive disorder. The examiner noted that the Veteran’s PTSD and cognitive disorder symptoms were inextricably intertwined. The Veteran reported that he worked full-time as a financial advisor. He lost 10 days of work for the past 12 months because of his disorder. The Veteran was married for 14 years with 3 children. He noted that he had contact with his extended family. On his free time, he did a lot of volunteer work with his church and the local high school. He indicated that he enjoyed hunting and fishing. He reported that he had troubling sleeping and was prescribed Ambien. He indicated that he was always on edge and avoided being in large crowds. He noted that he was easily frustrated and sometimes had outburst at work. He indicated that he was impatient and would snap easily. The Veteran did not take any medication for his mental disorder. The Veteran was casually dressed for his examination. He was pleasant, open, and cooperative during the interview. He was oriented to person, place, and time. His attention and concentration were intact. He described his mood as numb, frustrated, and anxious. His insight and judgment were fair. His memory was intact. However, the Veteran reported that he had lost 2 sets of keys and some money somewhere in his house. The Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. The Veteran’s symptoms caused an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that the Veteran’s PTSD symptoms were at a moderate level. An August 2014 VA treatment note documented that the Veteran had symptoms of hyper arousal, panic, avoidance of triggers, and hypervigilance. He was oriented to person, place, time, and situation. He denied any suicidal or homicidal ideation. His speech was within normal limits. He denied any auditory or visual hallucinations. His current mood was good. A December 2016 VA treatment documented that the Veteran noticed he had depressive symptoms over the past several months. The Veteran’s grooming and hygiene was good. His motor behavior was normal. He made good eye contact. His facial expression was sad. He had a cooperative attitude. His mood was depressed, and his affect was congruent. His speech was relevant and spontaneous. His thought process was logical, and goal directed. His thought content was relevant, and insight was good. He had passive suicidal ideation. He denied any homicidal ideation. In January 2017, the Veteran was seen for his mental disorder. He had passive suicidal ideation. His appearance, grooming, and hygiene was fair. His motor behavior was retarded/slow. His eye contact and facial expression was worried. His attitude was cooperative. His mood was anxious, and affect was congruent. His speech was relevant and spontaneous. His thought process was logical, and goal directed. His thought content was pessimistic, and insight was fair. He denied any homicidal ideation. In September 2017, the Veteran was afforded a VA PTSD examination. The Veteran was diagnosed with mild neurocognitive disorder, PTSD, and TBI. The examiner noted that it was not possible to differentiate what symptoms were attributable to each diagnosis. The examiner explained that the Veteran’s PTSD and mild neurocognitive disorder was due to his TBI. The examiner noted that it was impossible to separate for social and occupational functioning impairments. The Veteran reported that he was married with 3 children. He noted that he enjoyed wood working and attending his children’s sporting events. He reported that he felt his mood was erratic. He indicated that he gets irritated easily and was not able to tolerate stupidity. He denied any suicidal or homicidal ideation. The Veteran reported that he had not felt suicidal in about 9 months. He denied any auditory and visual hallucination and delusions. The Veteran had symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran’s symptoms caused an occupational and social impairment with reduced reliability and productivity. A November 2018 VA treatment note documented that had passive suicidal ideation. His hygiene and grooming were good. His motor behavior was restless. He made good eye contact and his facial expressions were normal. His attitude was cooperative. His mood was anxious, and affect was appropriate. His speech was relevant and spontaneous. His thought content was relevant. His thought process was logical, and goal directed. He denied any homicidal ideation. A February 2019 VA treatment note documented that the Veteran was seen for his mental disorder. His grooming and hygiene were good. His motor behavior was normal. He made good eye contact and his facial expression was normal. His attitude was cooperative, and his mood was euthymic. His affect was appropriate. His speech was relevant and spontaneous. His thought process was logical, and goal directed. His thought content was relevant, and insight was good. He denied any suicidal or homicidal ideation. He reported that his employment was stressful, and he struggled to maintain stable mental health. In October 2019, the Veteran was seen for his mental health treatment. His grooming and hygiene were good. His motor behavior was restless. He made good eye contact and his facial expression was normal. His attitude was cooperative. His mood was anxious, and affect was appropriate. His speech and thought content were relevant. His thought process was logical, and goal directed. His insight was adequate. He denied any suicidal or homicidal ideation. In January 2020, the Veteran was seen for his mental health treatment. The Veteran had good grooming and hygiene. His motor behavior was normal. He made good eye contact and his facial expression was normal. His attitude was cooperative. His mood was euthymic, and his affect was appropriate. His speech and thought content were relevant. His thought process was logical, and goal directed. He denied any suicidal or homicidal ideation. The Veteran reported that he started a new job in a contract position. He noted that he enjoyed his new job; however, the pace was much slower than his previous job. In July 2020, the Veteran was afforded a VA PTSD examination. The Veteran was diagnosed with PTSD and mild neurocognitive disorder due to mild TBI. The examiner noted that the Veteran’s TBI was intertwined and inseparable from his PTSD. The Veteran was married with 3 children. He reported that he felt that he was doing okay with his family interactions. The Veteran use to own his own financial planning business and now was a remote instructor for a University. He noted that he completed his Master’s degree in May 2020 and was beginning a PhD program in the fall. He noted that he was not consistent with maintaining the motivation with his hobbies or interests. He indicated that he was a home body type person. He reported that he felt exhausted being around others in social environments. He denied any auditory or visual hallucination and delusions. He denied any current suicidal or homicidal ideations. He noted that he had passive thoughts of death over the past year. However, he did not have any suicidal intent or plan. The Veteran had symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, flattened affect, circumstantial circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran’s symptoms caused an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In August 2020, the Veteran was afforded a VA residual of TBI examination. The Veteran was diagnosed with a TBI. He had subjective complaints of difficulty with concentration, short term memory loss, and rare dizziness. The examiner noted that the Veteran had significant PTSD stressors. The Veteran reported that he went back to school and finished his Master’s degree and he was currently in a PhD program. The Veteran reported that he received A’s and B’s while in school. He noted that he sought opiate use treatment and entered vocational rehab. The Veteran had been off opiates for several months and felt overall better. He had mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. He had normal judgment and his social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity and visual spatial orientation was normal. There were three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. Examples of findings that might be seen at this level of impairment were intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. There were no neurobehavioral effects. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. The examiner opined that the Veteran’s residuals conditions attributable to a TBI did not impact his ability to work. The examiner noted that the Veteran initially had a mild to moderate TBI. The Veteran’s ongoing subjective complaints of difficulty with concentration, short term memory issues, and rare dizziness were more likely than not related to his PTSD stressors. The examiner concluded that it was less likely than not that the Veteran’s subjective complaints were related to his TBI. Upon review of the record, the Board finds the assigned 70 percent rating is appropriate based on the Veteran’s symptoms. His most prominent symptoms were of anxiety, suspiciousness, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, flattened affect, circumstantial circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting. Although the evidence showed that the Veteran had a symptom of suicidal ideation. The Veteran denied any plan or intent. Notably, the July 2020 VA examination noted that he had passive thoughts of death. However, he did not have any suicidal intent or plan. Additionally, the Veteran reported mild memory loss; however, such was never for names of close relatives, his own name, or his past occupation. During VA examinations and VA treatment reports the Veteran was able to state his children’s name and what school they attended. Additionally, he was able to complete his Master’s degree and start a PhD program. The Veteran had consistently reported symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The evidence of record does not indicate that his PTSD more closely approximated the criteria for a 100 percent rating. The evidence failed to show that the Veteran’s PTSD symptoms resulted in a total occupational and social impairment. The evidence reflected that the Veteran throughout was appropriately groomed and coherent during evaluations. The psychiatric examinations failed to show any impairments in his thought processes, concentration, judgment, persistent delusions or hallucinations, or his communication. During all evaluations the Veteran was alert and oriented to time, place, person, and situation. The record did not reflect the Veteran displayed any inappropriate behavior or was a danger to himself or others. The record reflected that the Veteran reported suicidal ideations during the VA examination and VA treatment visits. However, the Veteran denied any intent or plan. Although a July 2017 VA treatment note documented that the Veteran’s motor behavior was retarded/slow, all other VA treatment visits and VA examination reports documented that his motor behavior was normal. The greater weight of the evidence indicates that the Veteran’s PTSD more closely approximates the criteria for a 70 percent disabled rating. The frequency and severity of his symptoms do not rise to the level of total occupational and social impairment. Thus, the preponderance of the evidence is against the assignment of a disability rating in excess of 70 percent. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.