Citation Nr: 21068633 Decision Date: 11/11/21 Archive Date: 11/11/21 DOCKET NO. 17-35 991 DATE: November 11, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD), major depressive disorder (MDD), alcohol use disorder (AUD), and cannabis use disorder (CUD) is denied. Entitlement to a disability rating in excess of 10 percent for degenerative disease of the lumbosacral spine is denied. Entitlement to individual unemployability is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's psychiatric symptoms did not more closely approximate total occupational and social impairment. 2. At worst, the Veteran's spine disability is manifest by forward flexion to 65 degrees during a flare up, with combined range of motion totalling 185 degrees. 3. In a letter dated August 28, 2020, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability; more than a year has passed since the letter was sent, and the Veteran has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for PTSD, MDD, AUD, and CUD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 10 percent for degenerative disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 3. By failing to submit requesting information and/or forms for critical evidence needed to properly adjudicate his claim for a TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from August 2007 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claims in April 2019 to acquire new VA medical examinations assessing the current severity level of his service-connected disabilities. Now of record are November/December 2020 VA medical examinations, and to that extent the Board finds that its remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon remand, the Veteran was granted an increased rating (70 percent) for his service-connected psychiatric disorders, effective the original date of service connection. See November 2020 RD. The aforesaid increase represents a partial grant of the benefits sought on appeal, and therefore the claim remains on appeal and will be adjudicated accordingly herein. Increased Rating 1. Entitlement to an initial disability rating in excess of 70 percent for service-connected posttraumatic stress disorder, major depressive disorder, alcohol use disorder, and cannabis use disorder The Veteran contends that his service-connected psychiatric disorders is worse than currently rated. See, e.g. October 2017 Statement in Support of Claim. Specifically, the Veteran contends that he experiences panic attacks more than on a weekly basis, is unable to maintain relationships, while his depression affects his ability to function independently and appropriately. Id. 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 Veteran is in receipt of a 70 percent disability rating for the entire period on appeal; therefore, the issue on appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. 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. The Board concludes that the Veteran's symptoms 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. VA and private treatment records, the November 2020 VA examination, and the Veteran's lay statements show that the Veteran's psychiatric disorders are manifested by symptoms on par with the level of severity associated with a 70 percent rating (suicidal ideation, obsessional rituals which interfere with routine activities, neglect of personal hygiene, difficulty in adapting to stressful circumstances, including work and social relationships, and difficulty in establishing and maintaining effective work and social relationships). Notably, there is also some evidence of symptoms associated with a 100 percent rating (persistent delusions or hallucinations). He also had symptoms that are not listed with a specific rating, such as survivor's guilt, muted emotions, reduced enjoyment of life overall, mental sluggishness/fatigue, reduced appetite, and low libido. See, e.g. VA treatment records. The Board finds the severity, frequency, and duration of the Veteran's listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran denied ever planning to harm himself or others during the October 2020 VA medical examination. See also, e.g., July 1, 2016 VA treatment record (indicating no current risk of suicide). Thus, it is not found to be persistent. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the October 2020 VA examination indicate that the Veteran had depressed mood, anxiety, panic attacks that occur weekly or less often, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, obsessional rituals which interfere with routine activities, persistent delusions of hallucinations, and neglect of personal appearance and hygiene. During the October 2020 VA examination, the Veteran's hygiene appeared good, he was fully oriented, with no evidence of active psychosis or formal thought disorder, and with no obvious problems exhibited during the interview relative to attention, concentration, or memory. See also July 1, 2016 VA treatment record ("well-groomed, pleasant, calm, and cooperative, appropriate affect, linear and logical thought process, no delusions, no apparent AVH"). Additionally, the Veteran relayed that he is still currently employed, and the VA examiner opined that the Veteran's psychiatric symptoms while having the potential to interfere with his ability to work, do not otherwise preclude him from working. Id. Thus, total occupational and social impairment is not found. The Veteran was also examined by VA in November 2016. The findings therein reveal a less severe disability picture than is indicated by the October 2020 VA examination report; however, the Board affords the November 2016 VA examination limited probative value given that the VA examiner did not consider lay statements and medical evidence of record prior to January 24, 2013 (this deficiency being the impetus for the April 2019 Board remand). While the Veteran did experience a symptom contemplated by a 100 percent rating, namely persistent delusions or hallucinations, the evidence overall does not demonstrate the frequency such that the level of impairment associated with a 100 percent rating has been reached. As noted above, the majority of the Veteran's symptoms are either contemplated by or more consistent with a 70 percent rating. 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 criteria for a 100 percent or higher rating are not met and the appeal must be denied. 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. 2. Entitlement to a disability rating in excess of 10 percent for degenerative disease of the lumbosacral spine The Veteran contends that he is entitled to a higher rating because his disability picture has worsened since last being examined by VA in October 2012, especially as it concerns flare ups of his disability. See August 2017 NOD. Here, the Board notes that the Veteran's claim was remanded, in part, to obtain a more accurate disability picture with respect to the Veteran's reported flare ups and how it impacts his overall range of motion for the spine. See November 2020/December 2020 VA examination report and addendum medical opinion. The Veteran's spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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. 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 the preponderance of the evidence is against a rating in excess of 10 percent for his service-connected spine disability. The Board acknowledges the Veteran's lay reports of additional functional loss due to pain during flare-ups that was not otherwise reflected in the VA examination reports of record prior to remanding the claim in April 2019. See August 2017 NOD. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. See November 2020 VA examination report. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran's disability was examined by VA in November 2020 and the examiner indicated that the Veteran's disability has stayed the same since its onset in 2010. With initial range of motion, the VA examiner noted that the Veteran has forward flexion from 0 to 75 degrees, extension from 0 to 25 degrees, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all from 0 to 30 degrees. Relative to the Veteran's abnormal range of motion findings, the VA examiner noted that the Veteran suffers functional loss to the extent of decreased flexion with interference with picking up objects. There was no pain noted on examination to include with weight bearing, non-weight bearing, passive, and active motion. The Veteran was able to perform repetitive-use testing with at least three repetitions but with no additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time, and the VA examiner opined that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Regarding flare ups, the VA examiner provided a December 2020 addendum medical opinion to November 2020 VA medical examination report opining that with flare ups the Veteran would suffer decreased flexion and interference with picking up objects, with reductions in range of motion to the extent of forward flexion from 0 to 65 degrees, extension from 0 to 20 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation from 0 to 25 degrees; the combined rating of motion totalling 185 degrees. The Veteran was also examined by VA in May 2017. The findings therein reveal a less severe disability picture than is indicated by the November 2020 VA examination report; however, the Board affords the May 2017 VA examination limited probative value given that the VA examiner did not consider lay statements nor provide range of motion measurements regarding the Veteran's flare ups (these deficiencies being the impetus for the April 2019 Board remand). Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower radiculopathy associated with his service-connected lumbar spine disability, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the Veteran's degenerative disease of the lumbosacral spine. The evidence of record simply does not indicate that the Veteran's disability has worsened since its onset to the extent of meeting the next highest rating criteria, as it is not shown that forward flexion of 60 degrees less, or that the combined range of motion of the thoracolumbar spine is 120 degrees or less. 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 individual unemployability The Veteran is seeking TDIU. See February 2020 Statement in Support of Claim; November 2017 Statement in Support of Claim. On August 28, 2020, VA sent the Veteran a letter notifying him of the requirement that TDIU claimants must complete and submit VA Form 21-8940 to substantiate the claim. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to a TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. In this case, the Veteran did not return a completed application and his TDIU claim was denied in a November 2020 rating decision. Since the November 2020 rating decision denial, VA still has not received a completed VA Form 21-8940 for this Veteran. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158 (a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim for a TDIU. As such, the Board finds that the appeal must be denied. Id. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.