Citation Nr: 21068834
Decision Date: 11/15/21	Archive Date: 11/15/21

DOCKET NO. 07-22 965
DATE: November 15, 2021

ORDER

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.

Entitlement to a rating in excess of 20 percent for degenerative disc disease L5-S1 with disc herniation, lumbar spine (back disability) is denied.

Entitlement to a rating in excess of 10 percent prior to August 28, 2018, and in excess of 20 percent thereafter for radiculopathy, left lower extremity sciatic nerve (LLE sciatic nerve radiculopathy) is denied.

Entitlement to a rating in excess of 20 percent for radiculopathy, left lower extremity femoral nerve associated with degenerative disc disease L5-S1 with disc herniation, lumbar spine (LLE femoral nerve radiculopathy) is denied.

REMANDED

Entitlement to service connection for hiatal hernia, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 21, 2012, and from October 1, 2013, to July 9, 2014, is remanded.

FINDINGS OF FACT

1. The Veteran's PTSD overall is not been manifest by 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.

2. The Veteran's back disability is not been manifest by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

3. Prior to August 28, 2018, the Veteran's LLE sciatic nerve radiculopathy was not manifested by moderate incomplete paralysis.

4. From August 28, 2018, the Veteran's LLE sciatic nerve radiculopathy is not manifest by moderately severe incomplete paralysis.

5. The Veteran's LLE femoral nerve radiculopathy is not manifest by severe incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 70 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020).

2. The criteria a rating in excess of 20 percent for back disability have not been met.  38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2020).

3. The criteria for a rating in excess of 10 percent prior to August 28, 2018, and in excess of 20 percent thereafter for LLE sciatic nerve radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8599-8520 (2020).

4. The criteria for a rating in excess of 20 percent for LLE femoral nerve radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8726 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1988 to September 1992 and from November 2001 to March 2006.  The Veteran had Reserve service from September 1992 to May 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

These matters have a lengthy procedural history.  Most pertinent to this decision, these matters were recently remanded in June 2018.  The Board finds there has been substantial compliance with its June 2018 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)

The Board notes that the service connection claim for a sleep disability was granted by the RO in a December 2019 rating decision.  Therefore, the benefit sought has been granted in full and is no longer before the Board.

Regarding the increased rating claim for LLE femoral nerve radiculopathy, the Board finds that this is a downstream issue from the original increased rating claims for back disability and LLE sciatic nerve radiculopathy.  Specifically, while on appeal, the RO granted a separate 20 percent disability rating for LLE femoral nerve radiculopathy in an April 2020 rating decision after an August 2018 VA examination.  Therefore, the Board has included the additional issue on appeal as characterized above, and a separate notice of disagreement for this issue is not required.

Increased Rating

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

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.  It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.

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.  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD)

The Veteran claims entitlement to an increased disability rating for his service-connected PTSD, which he asserts is more severe than the 70 percent rating assigned.

A 70 percent rating for PTSD contemplates 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.  Diagnostic Code 9411.

Finally, a 100 percent disability rating is warranted for PTSD resulting in 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.

The evidence considered in determining the level of impairment under the Rating Schedule for PTSD is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995).  The Board also notes, however, that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice.  See DSM-V, Introduction, The Multiaxial System (2013).  A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships.  A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning.  A GAF score of 41-50 is assigned where there are "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)."  A GAF score of 31-40 contemplates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).  Id.  Current mental health evaluations no longer use the GAF as an assessment of functioning.  Compare Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) with Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-5); see also 38 C.F.R. § 4.125 (2020).

In an April 2009 VA treatment record, it was noted that the Veteran was living with his girlfriend while on break from attending college.  The Veteran reported that he had been doing fairly well in school and cited difficulty with one of his professors; however, he had been able to stay focused on his personal goals and he had sought out help from his fellow students.  The Veteran stated that his primary concern was his erectile dysfunction and loss of desire for sexual contact; he said this started once he began taking Citalopram.  The Veteran said that his lack of interest had continued and his feelings of depression and low self-worth had increased.  He was not interested in resuming psychotropic medications due to fears of additional side effects.  On examination, the Veteran was noted to be calm and cooperative.  His affect was constricted, and his mood appeared depressed.  Speech was normal and thought process was intact with no presence of hallucinations or delusion.  The Veteran did not report suicidal or homicidal ideation.  The Veteran was fully oriented during the visit and judgment and insight were fair.  

In a May 2009 VA treatment record, the Veteran was noted to be pleasant and in no acute distress.  He was well developed, well nourished, alert and oriented, and cooperative.

In an August 2009 VA opinion, the examiner said that the Veteran seemed to be doing well without taking his medications.  

In an April 2010 VA examination, the Veteran reported exacerbation of his PTSD symptoms.  The Veteran was noted to be attending college and studying graphic design.  The examiner noted that the Veteran's psychiatric history showed that he was doing "relatively well" until about December, at which time he acknowledged that he and his girlfriend broke up.  He elaborated that for a period of time he suspected that she was involved with someone else, and that she "broke it off" because of his behavior and not trusting her.  The Veteran had a good relationship with his brother and said he had a few friends that he would visit on occasion.  He said that he felt his performance in school was poor because he had not been able to attend most classes due to his sleeping.  Regarding activities, the Veteran watched some television but avoided watching the news and media related to Iraq.  He said he related well to his therapist and felt that he lost the primary support of his girlfriend.  It was noted that the Veteran hoped to obtain his Master's degree after graduation from college.  He reported that he had been feeling increasingly depressed and had not been able to keep up with school because he slept about 15 hours per day.  The Veteran said that he was unable to concentrate and study.  He also said that he had withdrawn from others and spent most of his time on his own.  He acknowledged having a few close friends that would visit, but expressed no interest in pursuing any social activities with them.  The Veteran reported being hypervigilant, having difficulty trusting people, being guarded, and in a state of "alert as if ready to be attacked."  

On examination, the Veteran presented as casual, clean, and with neat clothing.  He walked with a limp which was attributed to his low back and knee pain.  The Veteran spoke in a low tone of voice and responded to most questions in short sentences.  Eye contact was minimal, and he tended to look down.  The Veteran was cooperative throughout the exam.  The Veteran was oriented in all spheres.  Thought processes were concrete but relevant.  There was no indication of delusions or hallucinations.  There was some paranoid ideation which, according to the Veteran, may have been a contributing factor in the breakup with his girlfriend.  Mood was dysthymic and affect was flat.  The Veteran rated his mood between a 1 and 2 with 10 being "great mood."  The Veteran expressed anxiety over his school performance and his mood which was interfering with his ability to study.  The Veteran did not report any nightmares, but also said that when he was sleeping he did not think.  He said that he had become guarded and non-trusting after he broke up with his girlfriend.  He described himself as hypervigilant.  

Attention and concentration were poor.  Episodic memory was good.  Memory storage was good, though difficulty was noted with recall, which was likely secondary to difficulty with sustained and shifting attention.  The Veteran also reported anhedonia and rarely participated in activities he once used to enjoy, such as visiting friends or exercising.  The Veteran said that he watched "a little television."  He denied suicidal or homicidal ideation.  The examiner concluded that the Veteran continued to experience the following symptoms: intrusive thoughts, sleep problems, anxiety, hypervigilance, anhedonia, and avoidance of others.  These symptoms were further exacerbated by the loss of a primary supportive resource, which in turn caused increased vulnerability and lowered his tolerance to stressors.  The examiner said that the Veteran showed a profile of chronic anxiety and depression, which presently was deemed to be moderate to severe.  Sleep problems were more likely secondary to his depressive disorder, and also a coping mechanism to decrease emotional discomfort by his not experiencing intrusive thoughts.  There was no evidence of delusional beliefs, generalized impairment of cognitive functions, or inability to care for activities of daily living.  The examiner assigned a GAF score of 52.  

In a July 2010 VA treatment record, the Veteran voluntarily admitted himself for treatment because he said that he kept pushing everyone important away from him.  The Veteran complained of feeling "pretty depressed" for the past few months.  He said that he broke up with his girlfriend this past December.  The Veteran said he was in his last year of college and that it had been hard for him to keep up with his classes; he said he failed a few classes this past spring.  The Veteran reported that his depression had worsened.  He was prescribed medication but had not filled the prescription.  He was tearful during the interview and said that for the last few days he was only sleeping one to two hours per night.  The examiner noted that the Veteran was positive for anhedonia.  The Veteran reported panic attacks about once per week and was afraid to go outside because he feared he would have one in public.  The Veteran also reported low energy, concentration, and appetite levels.  The Veteran said he lost 15 pounds in around two months and endorsed psychomotor slowing.  The Veteran denied suicidal ideation.  He reported nightmares.  On examination, the Veteran exhibited good grooming and hygiene.  Speech was normal.  The Veteran had poor eye contact and mood was sad.  Affect was congruent.  There was no evidence of looseness of associations, no flight of ideation, no tangentiality, and no circumstantiality.  There was also no evidence of suicidal ideation, auditory, or visual hallucinations.  Sensorium was clear and the Veteran was alert and oriented.  Abstract ability, attention, and concentration were good.  Insight and judgment were also good.  The Veteran was assigned a GAF score of 30.  

In an October 2010 VA treatment record, the Veteran said he did not want to increase his medication.  Overall, it was noted that the Veteran's mood was better than it was before he was on medication, but it was not good.  The Veteran was not having any suicidal thoughts.  On examination, the Veteran was casually dressed and groomed.  He was polite and cooperative and made fair eye contact.  He described his mood as "okay," and appeared in a neutral mood with a neutral affect.  Speech was normal.  There was no evidence of psychosis.  He denied suicidal thoughts.  The Veteran had less depression than he did before he was hospitalized in the summer, but there still appeared to be room for improvement.  

In a June 2011 VA treatment record, the Veteran said he was doing "okay," and said he was still taking summer classes and failed one because he did not get to the classes consistently.  The Veteran said he started taking one of his medications for a short period, which helped, but for inexplicable reasons he did not continue the medication.  The Veteran said his mood was better and he was not having any suicidal thoughts.  Sleep was variable, but the Veteran acknowledged he did not keep a regular routine.  On examination, the Veteran was casually dressed and groomed.  He was polite and cooperative and made fair eye contact.  He described his mood as "better."  He appeared in a neutral mood with a neutral affect.  Speech was normal.  There was no evidence of psychosis.  The Veteran denied suicidal thoughts.  

In a January 2015 VA treatment record, the Veteran reported that he had a panic attack a week before that was severe; he said it lasted for about 30 minutes.  The Veteran was interested in resuming PTSD group.  He had been compliant with his medication and was sleeping fairly well at night.  He said his mood had been "good" and denied depressive symptoms.  On examination, the Veteran was casually dressed, and grooming and hygiene were good.  He was pleasant and cooperative.  He had good eye contact, mood was "good," and affect was mood congruent and appropriate.  There was no evidence of a thought disorder.  There was also no evidence of suicidal or homicidal ideation.  There were no psychotic manifestations, and the Veteran was alert and oriented.  

In a June 2016 VA examination, the examiner determined that the Veteran had 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 Veteran had never been married and his last relationship was in 2009.  His social support came from family mostly, including his brother.  He said he had some friends but did not see much of them; these were childhood friends.  He did not belong to any social organizations.  The Veteran did not have a home; he was staying with family "here and there."  He said he had been out of a place since October 2015.  The Veteran said he had several jobs over the years but was not fired from any of them since 2008; he said he got along with coworkers but enjoyed working alone.  He was not currently seeing anyone for mental health treatment; however, he had last seen someone in January 2015.  He also was not taking anything for mental health and was not seeing a therapist.  Additional symptoms associated with the Veteran's PTSD included the following: depressed mood and anxiety (he worried about his health).  

The examiner noted that the Veteran was alert and oriented.  He interacted in a logical, coherent, and cooperative fashion.  Observed affect was even keeled.  Speech was normal but there were long latencies (at least 30 seconds) between questions and responses, and sometimes the questions needed to be repeated to solicit some type of response.  The Veteran was reasonably open and he denied feeling depressed.  He had been feeling a bit hopeless a couple of weeks after the hernia surgery "in the middle of the night."  He said that for enjoyment he liked to listen to music and he said he spent most of his time "recovering" from surgery.  There were no signs of thought disorder, hallucinations, or delusions.  The Veteran was observed to be casually dressed and well groomed.  There were no obvious psychomotor issues and gait was not observed via telehealth.  Insight was fair and the Veteran was noted to be vague in response to questions about his mental health status.  The Veteran denied having nightmares and said he slept well with his CPAP machine.  Concentration was adequate, but he also said that he really did not have anything to focus on.  Regarding the reliability and credibility of the Veteran's self-report, the examiner said that it was fair as he was "quite vague" with most questions.  The examiner said that sometimes the Veteran would sit and say nothing for many seconds and that he had problems giving examples of issues he had been having.  

In a May 2017 statement, the Veteran said that his PTSD continued to worsen.  He reported falling into flashbacks during the daytime and when they finished he had no idea how long he had been "gone."  He said he would confuse where he was at times.  The Veteran said he continued to order his life around the presence of people, and he could only put gas in his car when no one else was at the gas station.  He also said he had to shop at odd hours to get groceries from his fear of people.  He stated that being around other people put him in panic mode and he tried to prevent this by any means to not have to interact with others.  The Veteran also said that his examination was confusing, and he did not understand many of the questions he was asked; he said he was unable to answer accurately.

In a June 2017 VA treatment record, it was noted that the Veteran inquired about housing as where he was currently living housed too many people.  On examination, the Veteran was groomed appropriately and alert and oriented.  His motor activity was unremarkable, and speech was within normal limits.  The Veteran's interaction was also within normal limits as was his memory.  Mood was euthymic with congruent affect.  Concentration was intact.  Judgment/insight were fair and there was no evidence of suicidal or homicidal ideation, or audiovisual hallucinations.  

In a September 2018 VA examination, it was noted that the Veteran did not have overt suicidal desires, but often wished that he was not around, did not exist, or for a sudden quick painless event to take his life.  The examiner noted that affect range was flat to worries to tears, sobs.  The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The examiner noted that the Veteran was homeless but worked for the local school district and had temporary housing provided to him.  He continued to be single and considered a young man his son who was an adult; he knew the man's mother when he was young, and this relationship was relevant in his Lakota culture.  The Veteran said that he had not engaged in regular mental health, psychological, or psychiatric treatment.  He recently received a prescription for a psychotropic medication, but he opted not to take it as he had reservations about these medicines.  The Veteran had neither been hospitalized nor attempted suicide.  The Veteran continued to be isolative.  

The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, 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, and inability to establish and maintain effective relationships.  The examiner noted that the Veteran was clean and groomed.  He was very stiff in demeanor, removed, and tended to look as though far off, pre-occupied.  Although the Veteran was quiet in demeanor, he had an air of expectancy, "waiting for something."  Cognition was intact, but he trailed off in speech, losing concentration, and was seemingly distracted.  The Veteran was not psychotic and was not a danger to himself or others.  He suddenly sobbed, talking about his most disturbing memory.  The Veteran's affect otherwise was worried.  

In an October 2019 VA treatment record, the Veteran indicated the reason for the psychological evaluation was to complete an assessment separate from his service connection to better understand his diagnosis.  The Veteran described experiencing memories and triggers of war, feeling afraid of the darkness, being "on watch and intact" at night, hypervigilance, hopelessness, mistrust, and anxiety.  He said these symptoms impact his work because he had difficulty listening to people due to being internally distracted, forgetting conversations, and mistrust of others.  He said he had a few relationships but that his exes called him crazy.  

On examination, the Veteran was alert, oriented, and appropriately dressed and groomed.  There was no evidence of unusual motor symptoms and expressive and receptive language were within functional limits for the purposes of testing.  Eye contact was poor, and mood was depressed and quiet; affect was mood congruent.  At one point during the interview when asked about suicidal thoughts, the Veteran began wailing loudly and sweating, although he did not produce tears.  Attitude was mildly cooperative but reserved and/or guarded.  The Veteran denied hallucinations, and none were evidenced.  The Veteran endorsed suicidal ideation, but denied active suicidal thoughts, and he denied plan or intent.  The Veteran denied homicidal ideation.  Thought process was logical and goal directed.  The Veteran completed all tasks as requested and was compliant during times present.  He exhibited adequate ability to read and understand written questions.  Insight and judgment appeared without significant issues.  The examiner concluded that the Veteran did not attempt to simulate PTSD symptoms.  There was indication of minimal to little concern about obsessions, specific phobia, mania, florid paranoia or schizophrenia, elements related to borderline personality disorder syndrome, antisocial features, or substance abuse problems.  The Veteran's testing suggested he had severe PTSD symptoms.  

In a January 2021 VA treatment record, the Veteran discussed over the phone that he was homeless.  The Veteran denied voices, suicidal, or homicidal ideation.  He presented as angry, upset, unsure of his plans, and confused.

In a March 2021 VA examination, the examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The Veteran reported problems with strained relationships and struggled with periodic homelessness since 2015; he relied on family and friends for temporary loading.  He had not had a serious romantic relationship with the last 5 years.  The Veteran had not been employed since November 2020, and had held only brief positions for the last 5 years.  The Veteran employed the use of mental health services through the VA periodically.  Nonetheless, the Veteran denied being in counseling.  Records showed that he received inpatient services in February 2019, despite his report of last being hospitalized for psychiatric care in 2010.  The Veteran was prescribed several medications for depression and anxiety; however, he denied taking any medications at this time.  Additional symptoms included the following: depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, impaired judgment, disturbance of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and suicidal ideation.  

On examination, the Veteran was alert and oriented.  There was no evidence of delusions or hallucinations.  Symptoms related to mania were denied.  The Veteran did not suffer from obsessions or compulsions.  Intelligence was estimated to be average and memory functions appeared to be grossly intact.  Insight and judgment were deemed to be poor.  The Veteran reported many symptoms of anxiety and depression.  He was nervous in the presence of others and struggled with panic; he avoided crowds.  The Veteran was fearful of falling asleep due to anticipated nightmares and he woke throughout the night.  He struggled with chronic thoughts of suicide but denied intentions to act on them.  He interacted in an irritable and sullen manner.  Problems with anger were reported.  

In a separate March 2021 VA opinion, the examiner noted that the Veteran's PTSD was characterized by anxiety, and difficulties falling and staying asleep were commonplace.  The presence of nightmares also impeded upon the quality of sleep. 

Additional post-service treatment records do not suggest that the Veteran's PTSD warrants a higher disability rating.   

Overall, after reviewing the evidence, the records do not show that a higher 100 percent rating is warranted for the Veteran's PTSD.  The Board acknowledges that the Veteran at one point in April 2010 reported paranoid ideation, which he said likely contributed to the break-up with his girlfriend.  However, there is no overall evidence of total occupational and social impairment.  The evidence shows that the Veteran has been single since he and his girlfriend broke up and that he was homeless at times, living with family and friends, while working intermittently at a local school.  Yet, in spite of this, the evidence also shows that the Veteran enjoyed his work and was employed doing media specialist work at a school.  He did not have any children, but based on his culture, considered one man to be like his son who he looked after.  There was no evidence of gross impairment of thought process; in fact, thought process was normal.  Despite the April 2010 VA examiner noting low tone of voice and short sentences, overall, the Veteran did not have any problems with his speech that would suggest gross impairment.  Ultimately, even with findings of some recall issues with memory, this was attributed to concentration and attention, and it does not rise to the 100 percent disability rating symptom of memory loss for names of close relatives, own occupation, or own name.  The Veteran reported suicidal ideation, flashbacks, isolative behavior, panic attacks, nightmares, and difficulty in the workplace at times.  These findings fall under the umbrella of a 70 percent disability rating.  Finally, the VA examinations determined that the Veteran had, at worst, occupational and social impairment with deficiencies in most areas.  Examinations of the Veteran showed that he was always neatly groomed and had good hygiene.  He also chose to not take his medication for the most part throughout the period on appeal as he did not like the side effects.  The Veteran also did not frequently partake in any mental health treatment or therapy.  The Board has considered the lay statements of record; however, these statements also do not suggest that a higher disability rating is warranted.  Thus, the evidence indicates that although the Veteran's PTSD is severe, it is not severe enough to warrant a 100 percent disability rating as the evidence does not suggest total occupational and social impairment.

Accordingly, the Board finds that a rating in excess of 70 percent for PTSD is not warranted.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence during the appeal period is against the Veteran's claim for a disability rating in excess of 70 percent for his service-connected PTSD, the doctrine is not for application.  Gilbert, 1 Vet. App. 49 (1990).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

2. Entitlement to a rating in excess of 20 percent for degenerative disc disease L5-S1 with disc herniation, lumbar spine (back disability)

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).

The Veteran asserts that his back disability is more severe than a 20 percent disability rating.  The Veteran's back disability is rated under Diagnostic Code 5242.

The Rating Schedule provides that disabilities rated under Diagnostic Code 5242 should be evaluated under the General Formula for Diseases and Injuries of the Spine (General Formula).  38 C.F.R. § 4.71a, Diagnostic Code 5242.

In regard to the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  See 38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and 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 combined range of motion of the thoracolumbar spine is 240 degrees.  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.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2.  Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate Diagnostic Code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1.

The Board notes that effective February 7, 2021, the criteria for rating the musculoskeletal system changed.  However, the relevant Diagnostic Codes in this case, 5237, 5242, and 5243 did not change.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).

Initially, the Board notes that the Veteran was afforded VA examinations in August 2006, April 2008, December 2011, June 2017 and August 2018.  The Board found these VA examinations partially inadequate because they did not comply with the Court's findings in Correia; however, the Board will still consider and discuss the adequate portions of these VA examinations.

In an August 2006 VA examination, the Veteran reported pain in his low back with radiation to his lateral thigh and going down to his last 3 toes on the left.  The pain occurred about 4 or 5 times per week and could last all day.  The Veteran said that at work he avoided lifting and felt that it decreased his productivity, but there was no other mention of any problems.  Concerning activities of daily living, the Veteran said if he did not have to do something then he would stay home and rest.  The Veteran denied any flare ups.  On examination, when the Veteran got up from the chair he walked "a little bit side to side and stiffly."  There was no evidence of pain or discomfort to palpation of the paraspinal muscles from the base of the skull to the sacral area.  Percussion of the axial spine revealed no pain or discomfort.  The Veteran could laterally flex 0 to 20 degrees to the left and 0 to 20 degrees to the right with the end point being pain.  He could extend 0 to 20 degrees with pain being at the end point.  Forward flexion was 0 to 50 degrees with pain being the end point and having to support himself on the table.  The examiner noted that the Veteran could sit on the end of the table and could bring his feet up to 90 degrees without any evidence of pain or discomfort when checking his lower feet.  Even though there was a subjective sensation of numbness and tingling over the lateral foot, objectively the Veteran reported he could feel the pinprick, vibration, and light touch.  There was no further disability noticed due to pain, weakness, fatigue or lack of endurance at the time with repetition of range of motion relating to the Veteran's back.  

In an April 2008 VA examination, the Veteran said that his back disability had progressively worsened.  Had had frequent daily flare ups and said that any prolonged sitting or standing more than 5 minutes aggravated his low back pain; he said that twisting aggravated both the low back pain and the pain radiating down the left lower extremity.  The Veteran said stretching seemed to help alleviate the pain.  He said he did not like to take any pain medication.  The Veteran complained of marked stiffness and weakness in his back, especially in the morning.  He also complained of numbness and weakness in the lateral aspect of the left foot associated with exacerbation of the lower back pain.  There were no bladder or bowel complaints.  The Veteran walked unaided, and his gait was largely normal.  The Veteran was noticed to have some difficult time when he first got up from the chair; he had to take a few slow steps and slowly straighten his back and his right knee.  The Veteran was also noticed to have a very difficult time getting up from the examination table when he was lying on his back and he required some help.  The Veteran did not use a back brace; he said that he could only walk a few blocks before having to stop and rest because of pain in his lower back and right knee.  The examiner noticed that the Veteran had left leg radiculopathy secondary to the back disability.  The Veteran reported having pain along the posterior and lateral aspect of his left leg about 3 to 4 times per week.  The pain was usually triggered by bending, lifting, or twisting of the back.  The Veteran was not on any medication for the radiculopathy.  

On examination, the examiner found that the Veteran had mild tenderness over the lower lumbar spine to the midline and slightly to the left of the midline.  There was mild spasm in the lower lumbar paraspinal muscles.  Range of motion was the following: forward flexion to 80 degrees with pain starting at 60 degrees; extension to 0 degrees; right lateral flexion to 30 degrees and left lateral flexion to 15 degrees; and right and left lateral rotation to 30 degrees.  There was evidence of pain at left lateral flexion starting at about 15 degrees as well as with forward flexion to 60 degrees and any attempted flexion.  There was no additional loss of range of motion on repetitive movement.  

In a May 2009 private treatment record, the Veteran was seen in the emergency room with acute onset of back pain.  He woke up that morning with increasing pain in the left side of his lower back radiating into his left groin.  The Veteran described this as being similar to his previous back pain.  He had not had any recent problems lately with his back and there was not anything that he did yesterday or today that aggravated his symptoms.  

In a December 2011 VA examination, the Veteran said he had to withdraw from classes in November because of his back.  He said that the pain pills did not help him, and said that he still could not move.  The Veteran said his current treatment was Oxycodone and a lot of stretching of his hamstrings, which sometimes did not work.  He described pain as a 4 out of 10 and sharp in the low back.  He said he was numb on the side of the left thigh and the two little toes.  He said that this has been this way since 2005, and he had an occasional tingling feeling that felt cold.  He reported occasional muscle twitches.  The Veteran reported flare ups as occurring "all the time every day."  On examination, range of motion was the following: forward flexion to 40 degrees with evidence of painful motion to 40 degrees; extension to 20 degrees with evidence of painful motion to 20 degrees; right lateral flexion to 30 degrees with no evidence of painful motion; left lateral flexion to 10 degrees with evidence of painful motion to 10 degrees; and bilateral lateral rotation to 30 degrees with no evidence of painful motion.  The examiner noted that range of motion was normal for the Veteran.  The examiner explained that with flexion and extension the Veteran was noted to bend legs, but measurements were taken at hip angle.  Also, with left lateral flexion, the Veteran had limited movement secondary to moving his whole body to compensate for the knee.  The Veteran was able to perform repetitive use testing without additional limitation in range of motion.  

There was evidence of functional loss described as less movement than normal, pain on movement, and interference with sitting, standing and/or weight bearing.  There was no evidence of localized tenderness or pain to palpation, guarding or muscle spasm, or muscle atrophy.  The Veteran was unable to perform the straight leg raising test.  The examiner noted radiculopathy but did not determine the severity of his radiculopathy or which extremity was affected.  The Veteran said that none of his symptoms were secondary to pain medications, but when he had pain he reported a sharp intermittent pain down the left leg.  He also reported numbness but did not have any current symptoms.  The examiner noted that the Veteran had IVDS, but had not had any incapacitating episodes over the past 12 months.  The Veteran did not use any assistive devices.  The examiner noted that the Veteran walked with an antalgic gait and limped to the right.  He used both arms on the chair to get up and was unable to lay down on the exam table.  He had negative Babinski and wore a right knee brace.

In a February 2012 private treatment record, the Veteran was seen for left lower back pain that radiated down his left leg.  He injured it while he was lifting something and said that this had happened before, and it flared from "time to time."  He said he had pain more in the whole leg rather than just on the lateral aspect of the leg.  

In a September 2014 MRI, the Veteran was noted to have back pain with radiculopathy down the left leg.  It was determined that the Veteran had multilevel degenerative changes.  

In a June 2017 VA examination, the Veteran reported that his central lower back was constantly stiff.  He said it felt hot, but it was not swollen.  He denied any numbness/tingling/pain down his left leg.  He was able to stand for 5 minutes, walk for 5 minutes, and sit for 10 to 15 minutes.  He could not report how his back felt after repeated bending or movement.  He was able to lift less than 40 pounds.  He said his back made him feel tired, and the Veteran asked for help getting out of the chair because of his back and left knee.  He rolled off the bottom bunk bed and had to push or hold onto something to get himself up, which was due to both his back and left knee.  He said his overall movement was poor.  He did not cook because he never needed to; however, he was able to do his own activities of daily living.  He was not involved in any hobbies and he mostly sat all day.  He had gained 30 pounds.  The Veteran reported flare ups and described them as occurring after running and would have difficulty doing anything for 1 to 3 days; he said he would be "really sore."  The Veteran also reported functional loss as described above.  

On examination, range of motion was the following: forward flexion to 50 degrees; extension to -10 degrees; bilateral lateral flexion to 15 degrees; and bilateral lateral rotation to 20 degrees.  Range of motion itself did not contribute to functional loss.  Pain was noted on examination at forward flexion and extension, but did not cause functional loss.  There was evidence of pain with weight bearing.  There was evidence of localized tenderness or pain on palpation.  The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion.  The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time.  Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time.  The Veteran was not examined during a flare up and the examiner determined that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare ups.  The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups because the Veteran would have to self-report and the Veteran could not report this in actual degrees of motion lost or function lost other than that as described above.  Specifically, the Veteran reported his back flared after running and had not participated in this activity in more than 6 months.  There was no evidence of guarding or muscle spasm.  

Additional contributing factors included disturbance of locomotion, interference with sitting, interference with standing, and the non-service-connected left knee condition.  There was no evidence of muscle atrophy.  Straight leg raising tests were positive.  There was no evidence of radiculopathy or ankylosis.  The Veteran did not have any bowel abnormalities or IVDS.  The examiner noted that right lateral flexion and left rotation improved by 5 degrees after 3 repetitions.  The examiner also noted that if left leg radiculopathy would have been identified during the exam then it would be considered a mild impairment affecting the left sciatic/S1 nerve group.  It was determined that the Veteran's cautious gait was primarily due to the left knee and not his back.  

In a June 2017 statement, the Veteran said that he was not asked about flare ups during his examination and said that he could not move very far without pain.  When he experienced pain, he said he had to try to lie down and not move.  The Veteran said he was also not asked about pain or fatigue and that he was examined on a "good day" for his back.  He reported reduced movement because of his back, but this was not discussed.  He also reported that his back and his left knee caused him to limp.  The Veteran said that he was not tested with weight and non-weight-bearing, and that the exam was difficult because he had to do "all oof the movements which hurt, and made [him] very tired."  He said that the examiner did not take any x-rays or any other tests.  He also said that he had "considerable pain" during and after the exam.  The Veteran described how his back would hurt so bad at times that he could not leave the house.  He said he was unable to mow the lawn or garden anymore and could only sit 15 minutes without pain; he had to move to alleviate some of the pain but was never pain free.  

In an August 2018 VA examination, the Veteran reported stiffness in his back and that it was hard to sit for long periods of time.  He said that the pain radiated down his legs.  The Veteran described flare ups as increased pain and stiffness in his lower back that radiated into his hips and down his legs.  He said flare ups happened twice a week, lasting 3 hours, and were severe.  The Veteran described functional loss as decreased strength and mobility due to back pain.  On examination, range of motion was the following: forward flexion to 65 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 20 degrees; and bilateral lateral rotation to 20 degrees.  The examiner, however, stated that this range of motion was normal for the Veteran because loss of range of motion was due to an unrelated condition.  The examiner then stated that that the abnormal range of motion contributed to functional loss, namely, decreased movement due to pain.  There was evidence of localized tenderness or pain on palpation.  Pain was noted on examination at extension, bilateral lateral flexion, and bilateral lateral rotation; this caused functional loss.  There was evidence of pain with weight bearing in the lower back and knee pain with movement; this was severe and there was radiculopathy down the legs with movement.  The Veteran was unable to perform repetitive use testing with at least 3 repetitions due to fear of pain.  

The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time.  The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions.  The examiner provided the same response for flare ups.  There was evidence of muscle spasm and guarding resulting in abnormal gait or abnormal spine contour.  There were no additional contributing factors to the disability or any evidence of muscle atrophy.  The examiner determined that the Veteran had radiculopathy and found the following: mild constant pain in the right lower extremity and severe constant pain in the left lower extremity; moderate intermittent pain in the right lower extremity and severe intermittent pain the left lower extremity; moderate paresthesias and/or dysesthesias in the right lower extremity and severe paresthesias and/or dysesthesias in the left lower extremity; and moderate numbness in the left lower extremity.  The examiner indicated that the left femoral and sciatic nerves were involved.  Severity of the radiculopathy was mild for the right and moderate for the left.  There was no evidence of ankylosis or any other neurological abnormalities.  There was also no evidence of IVDS.  The examiner noted atrophy of the left lower extremity.  

In a July 2021 VA examination, the examiner noted diagnoses of degenerative arthritis, degenerative disc disease other than IVDS, IVDS, and bilateral lower extremity radiculopathy.  The Veteran reported that the course of his condition since the onset had improved.  He reported electric shooting pain down the left leg to his toes and numbness on lateral aspect of leg; mild weakness in leg.  He received an epidural in 2014, which helped.  The Veteran reported flare ups, which occurred multiple times per day and lasted moments ot hours.  He described these flare ups as intense pain, numbness, and cold/burning sensation.  Precipitating factors included standing and walking, and alleviating factors were rest and sitting.  The pain was severe.  Functional impairment during a flare up was very limiting.  The Veteran reported functional loss and described it as not walking or standing unless he absolutely had to.  On examination, range of motion was the following: forward flexion to 80 degrees; extension to 15 degrees; bilateral lateral flexion to 15 degrees; and bilateral lateral rotation to 30 degrees.  Range of motion did not contribute to functional loss.  Left lateral flexion caused pain.  There was evidence of pain on weight bearing, active motion, and causing functional loss.  Pain was limiting to the Veteran's range of motion and endurance.  There was no evidence of crepitus.  There was evidence of localized tenderness or pain on palpation, which was mild.  The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion.  

The Veteran was not examined immediately after repeated use over time and the examiner determined that pain, fatigability, weakness, and lack of endurance significantly limited functional ability with repeated use over time.  Range of motion was the following: forward flexion to 60 degrees; extension to 10 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 25 degrees.  The Veteran was not examined during a flare up and the examiner determined that pain significantly limited functional ability with flare ups.  Range of motion was the following: forward flexion to 45 degrees; extension to 10 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 20 degrees.  There was evidence of localized tenderness, which did not result in abnormal gait.  This was due to diagnosed conditions.  Additional contributing factors included interference with standing, disturbance of locomotion, less movement than normal, and weakened movement.  Pain and restriction of motion was very disabling in standing.  Motion was disturbed in back and was disabling.  Decreased range of motion detailed above was restrictive and disabling.  Movement was weakened and limited ability to lift and carry.  There was no evidence of muscle atrophy.  There was evidence of radiculopathy, where the Veteran had severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left lower extremity.  The sciatic and femoral nerve of the left lower extremity were affected.  There was no evidence of ankylosis.  The Veteran had IVDS; however, there were no episodes of acute signs and symptoms that required bedrest in the past 12 months.  

Additional post-service treatment records do not show that the Veteran's back disability warrants a higher rating.  

Overall, and after a review of the evidence, the Board finds that the Veteran's back disability does not warrant a rating in excess of 20 percent.  The Board notes that despite the above finding that several of the VA examinations were found to be inadequate due to Correia, the Board finds that the active range of motion findings and the Veteran's statements are still probative.  The evidence on file did not show symptoms productive of forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, to warrant a 40 percent disability rating.  In fact, the Veteran's range of motion at worse showed flexion to 45 degrees.  The Board acknowledges that the Veteran feels pain.  However, the current disability ratings account for this pain.  The Board also notes that the evidence does not show unfavorable ankylosis of the thoracolumbar spine or comparable functional impairment.  Ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18Vet. App.13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position"). Here, the evidence does not show that the Veteran's back is immobile.  The VA examiners have explicitly found no evidence of ankylosis and the functional impairment caused by his back disability is not consistent with that contemplated by ankylosis, as evidenced by his ability to move his back, albeit limited.  See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., April 16, 2021).

The Board also considered whether higher ratings were warranted for IVDS under Diagnostic Code 5243 during any period on appeal, but the competent evidence does not show that the Veteran was prescribed bed rest for incapacitating episodes related to his thoracolumbar spine disability.  There was no other objective evidence provided to suggest that the Veteran's back condition was more severe than a 20 percent disability rating.  Finally, treatment records have not shown any other associated neurologic abnormality that has not been separately service-connected beyond the Veteran's bilateral lower extremity radiculopathy.  Therefore, separate ratings for associated neurologic abnormalities are not warranted.

The Board has also considered the Court's holdings in Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011), DeLuca v. Brown, 8 Vet. App. 202 (1995), and Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017) with regard to functional impact.  However, the examination reports and clinical findings with regard to such factors do not reflect that his symptoms rise to the level to warrant a higher rating.

The Board notes that the Veteran has offered his own opinion on the severity of his back disability.  The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training.  However, the Board finds that there are numerous records throughout the years noting the Veteran's back condition and symptoms that do not show that it is more severe than currently rated.  As a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise.  Moreover, the Veteran although feels pain cannot accurately assess his own range of motion findings; this requires medical expertise.  Therefore, the Board affords more probative weight to the VA examinations and additional treatment records, rather than the Veteran's own contentions.

Therefore, the preponderance of the evidence is against an increased rating; there is no doubt to be resolved.  Entitlement to a rating in excess of 20 percent for back disability is not warranted.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy, 27 Vet. App. At 495 (2016); Doucette, 38 Vet. App. at 369-70 (2017).

3. Entitlement to a rating in excess of 10 percent prior to August 28, 2018, and in excess of 20 percent thereafter for radiculopathy, left lower extremity sciatic nerve (LLE sciatic nerve radiculopathy) and entitlement to a rating in excess of 20 percent for radiculopathy, left lower extremity femoral nerve associated with degenerative disc disease L5-S1 with disc herniation, lumbar spine (LLE femoral nerve radiculopathy)

The Veteran asserts that his LLE sciatic nerve radiculopathy is more severe than 10 percent disabling prior to August 28, 2018, and more severe than 20 percent disabling thereafter.  He also asserts that his LLE femoral nerve radiculopathy is more severe than 20 percent disabling.  The Veteran's LLE sciatic nerve radiculopathy is rated under Diagnostic Code 8599-8520.  The Veteran's LLE femoral nerve radiculopathy is rated under Diagnostic Code 8726.

A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned.  The additional diagnostic code is shown after the hyphen.

Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy.  A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; 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.  A noncompensable rating is assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

Under Diagnostic Code 8726, a 20 percent rating is warranted for moderate incomplete paralysis of the femoral nerve.  A 30 percent rating is warranted when there is severe incomplete paralysis.  A 40 percent rating is warranted when there is complete paralysis of quadriceps extensor muscles.  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).

Prior to August 28, 2018

In an August 2006 back VA examination, the Veteran reported pain in his low back with radiation to his lateral thigh and going down to his last 3 toes on the left.  The pain occurred about 4 or 5 times per week and could last all day.  On examination, even though there was a subjective sensation of numbness and tingling over the lateral foot, objectively the Veteran reported he could feel the pinprick, vibration, and light touch.  

In an April 2008 back VA examination, the Veteran said that twisting aggravated both the low back pain and the pain radiating down the left lower extremity.  The Veteran said stretching seemed to help alleviate the pain.  He said he did not like to take any pain medication.  The Veteran complained of numbness and weakness in the lateral aspect of the left foot associated with exacerbation of the lower back pain.  The examiner noticed that the Veteran had left leg radiculopathy secondary to the back disability.  The Veteran reported having pain along the posterior and lateral aspect of his left leg about 3 to 4 times per week.  The pain was usually triggered by bending, lifting, or twisting of the back.  The Veteran was not on any medication for the radiculopathy.  

In a May 2009 private treatment record, the Veteran was seen for acute onset of back pain.  The pain radiated into his left groin.  The Veteran denied any numbness or tingling in the hands or feet.  The Veteran was assessed with acute low back pain with radicular symptoms.  

In a December 2011 back VA examination, the Veteran said he was numb on the side of the left thigh and the two little toes.  He said that this had been this way since 2005, and he had an occasional tingling feeling that felt cold.  The examiner noted radiculopathy but did not determine the severity of his radiculopathy or which extremity was affected.  The Veteran said that none of his symptoms were secondary to pain medications, but when he had pain he reported a sharp intermittent pain down the left leg.  He also reported numbness but did not have any current symptoms.  

In a December 2011 peripheral nerves VA examination, the examiner referred to the December 2011 back VA examination.  The examiner also stated there was no paralysis, but per the MRI this might be affecting the L5-S1 nerve root if the Veteran was having any symptoms.  

In a June 2017 back VA examination, the Veteran denied any numbness/tingling/pain down his left leg.  On examination, there was no evidence of radiculopathy.  The examiner noted that if left leg radiculopathy would have been identified during the exam then it would be considered a mild impairment affecting the left sciatic/S1 nerve group.  

In a June 2017 statement, the Veteran said that the examination was only about his back and that the "outer side, the outer calf and two little toes" were numb.  He said he wore a knee brace and sometimes he had a burning or cold feeling when his leg was not numb.  He said that he was unable to walk too far because he had a limp and it was a load bearing brace, so he did not have much movement in his knee.  The Veteran said that when his back flared up his leg would flare as well.  

In a March 2018 peripheral nerves VA examination, left lower extremity radiculopathy was noted.  The examiner noted the following symptoms: severe constant pain, severe paresthesias, and moderate numbness.  There was evidence of muscle atrophy on the distal left thigh and calf.  The Veteran's gait was abnormal and found to be guarded with limping; the etiology for this was from the right knee arthroplasty and left knee pain.  The examiner determined that the Veteran's lower extremity nerves' severity were normal.  The examiner stated that the Veteran had a left knee condition due to left knee degenerative changes and had left lower extremity radiculopathy due to his lumbar spine condition.  The examiner said that since some of these symptoms overlapped each other, the examiner was unable to state what was the main cause of the Veteran's left knee pain without resorting to mere speculation.  The examiner concluded that there was no evidence of full or partial paralysis of the left lower extremity.  

In an April 2018 addendum VA opinion, the examiner clarified that the Veteran's left knee condition was related to his left lower extremity radiculopathy and mild degenerative changes.  The examiner said that she was unable to name the main cause of the Veteran's left knee pain and whether his left knee pain was due to left lower extremity radiculopathy or left knee degenerative arthritis without resorting to mere speculation.  

From August 28, 2018

In an August 2018 back VA examination, the Veteran reported stiffness in his back and that it was hard to sit for long periods of time.  He said that the pain radiated down his legs.  The Veteran described flare ups as increased pain and stiffness in his lower back that radiated into his hips and down his legs.  He said flare ups happened twice a week, lasting 3 hours, and were severe.  The examiner determined that the Veteran had radiculopathy and found the following: mild constant pain in the right lower extremity and severe constant pain in the left lower extremity; moderate intermittent pain in the right lower extremity and severe intermittent pain the left lower extremity; moderate paresthesias and/or dysesthesias in the right lower extremity and severe paresthesias and/or dysesthesias in the left lower extremity; and moderate numbness in the left lower extremity.  The examiner indicated that the left femoral and sciatic nerves were involved.  Severity of the radiculopathy was mild for the right and moderate for the left.  The examiner noted atrophy of the left lower extremity.

In an August 2018 peripheral nerves VA examination, the examiner noted a diagnosis of bilateral lower extremity radiculopathy.  The Veteran reported loss of feeling and sensation down lower legs and into feet and toes.  The examiner noted the following symptoms: moderate constant pain in the right upper extremity, mild constant pain in the right lower extremity, and severe constant pain in the left lower extremity; mild intermittent pain in the bilateral upper extremities, moderate intermittent pain the right lower extremity, and severe intermittent pain the left lower extremity; moderate paresthesias and/or dysesthesias in the right upper extremity, moderate paresthesias and/or dysesthesias in the right lower extremity, and severe paresthesias and/or dysesthesias in the left lower extremity; and moderate numbness in the left lower extremity.  There was evidence of muscle atrophy in the upper and lower leg.  The Veteran had abnormal gait due to knee and back pain and use of his left knee brace.  The examiner noted that affected nerves included moderate incomplete paralysis in the sciatic nerve, mild incomplete paralysis in the external popliteal (common peroneal) nerve, mild incomplete paralysis of the musculocutaneous (superficial peroneal) nerve, mild incomplete paralysis of the anterior tibial (deep peroneal) nerve, moderate incomplete paralysis of the internal popliteal (tibial) nerve, mild incomplete paralysis of the posterior tibial nerve, moderate incomplete paralysis of the anterior crural (femoral) nerve, severe incomplete paralysis of the internal saphenous nerve, mild incomplete paralysis of the obturator nerve, mild incomplete paralysis of the external cutaneous nerve of the thigh, and mild incomplete paralysis of the ilio-inguinal nerve.  The examiner concluded that there was a new diagnosis of right lower extremity radiculopathy.  There was atrophy of the left leg noted on physical exam.  Finally, the symptoms on the day of the exam for the bilateral upper extremities had no clinical significance and therefore no diagnosis was warranted.

In a February 2019 addendum VA opinion, right lower extremity radiculopathy diagnosis was added.  Both the sciatic and femoral nerve roots were affected.  The examiner said that right lower extremity radiculopathy was a progression of the service-connected diagnoses.  The right side showed mild incomplete paralysis for the sciatic nerve and femoral nerve.  Finally, the affected nerves for the lumbar spine and radiculopathy were only femoral and sciatic.  The other nerve listings in the previous exam were inaccurate.  

In a July 2021 back VA examination, the examiner noted diagnoses of degenerative arthritis, degenerative disc disease other than IVDS, IVDS, and bilateral lower extremity radiculopathy.  The Veteran reported that the course of his condition since the onset had improved.  He reported electric shooting pain down the left leg to his toes and numbness on lateral aspect of leg; mild weakness in leg.  He received an epidural in 2014, which helped.  The Veteran reported flare ups, which occurred multiple times per day and lasted moments ot hours.  He described these flare ups as intense pain, numbness, and cold/burning sensation.  There was evidence of radiculopathy, where the Veteran had severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left lower extremity.  The sciatic and femoral nerve of the left lower extremity were affected.  

Additional post-service treatment records are silent for any evidence warranting increased ratings for the Veteran's LLE sciatic nerve and femoral nerve radiculopathy.

Overall, the Board finds that the evidence of record does not show symptomatology warranting a rating in excess of 10 percent prior to August 28, 2018, and in excess of 20 percent thereafter for LLE sciatic nerve radiculopathy.  Additionally, the Board finds that a rating in excess of 20 percent for LLE femoral nerve radiculopathy is not warranted.  The Board acknowledges that the Veteran has consistently reported radiating pain associated with his back pain.  However, the evidence of record as a whole did not show that the Veteran had moderate incomplete paralysis prior to August 28, 2018, or moderately severe incomplete paralysis after August 28, 2018, for his LLE sciatic nerve radiculopathy.  Additionally, the evidence of record as a whole did not show that the Veteran had severe incomplete paralysis for his LLE femoral nerve radiculopathy.  At most, the Veteran's LLE sciatic nerve radiculopathy showed as mild prior to August 28, 2018.  From August 28, 2018, the Veteran's LLE sciatic nerve radiculopathy, at most, was moderate.  The Veteran's LLE femoral nerve radiculopathy was, at most, moderate.  The Board acknowledges the Veteran's subjective sensory reports of severe pain, paresthesias, and numbness, at times; however, the actual findings associated with the nerves did not warrant any higher ratings.

The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing pain in his left leg.  However, to the extent that he was asserting the degree of pain, his lay description does not adequately rebut the medical evidence, including more recent testing, as discussed above.  The Board places more probative value on the objective evidence of record, rather than on his subjective complaints which are less precise.  Therefore, the objective evidence does not establish the Veteran met the criteria associated with higher ratings.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with the peripheral nerves of the left lower extremity that have not already been service-connected.  Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

There accordingly exists no basis for an underlying LLE sciatic nerve radiculopathy rating in excess of 10 percent prior to August 28, 2018, or in excess of 20 percent thereafter.  There also is no basis for a LLE femoral nerve radiculopathy rating in excess of 20 percent.  The Veteran's LLE femoral nerve radiculopathy is not manifest by severe incomplete paralysis.

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, 1 Vet. App. at 54-56.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy, 27 Vet. App. At 495; Doucette, 38 Vet. App. at 369-70.

REASONS FOR REMAND

1. Entitlement to service connection for hiatal hernia, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded.

In an August 2017 VA examination, the examiner noted a diagnosis of hiatal hernia in April 2015.  The Veteran said that he started noticing discomfort in his upper chest in 2006 or 2007.  He said that the condition had progressed, and he reported discomfort and pain in the site of the hiatal hernia.  In a separate August 2017 VA opinion, the examiner opined that the Veteran's hiatal hernia was less likely than not incurred in or caused by service.  The examiner reasoned that based on record review at the second enlistment and separation examination on March 13, 2006, there was no evidence in the medical records that the Veteran's hiatal hernia was related to service.  The examiner pointed to the Report of Medical Examination dated September 26, 2001, the Report of Medical History dated September 26, 2001, and the Report of Medical Examination dated March 13, 2006.  

The Board finds this opinion inadequate for several reasons.  First, the examiner wholly bases her rationale on a lack of contemporaneous records, which is not an absolute bar to service connection.  Second, the examiner does not discuss the Veteran's lay statements around 2006 or 2007, which would have been during service or within 1 year following separation from service.  Therefore, the Board is unclear if these lay statements were considered.  Finally, the examiner did not discuss the articles submitted by the Veteran suggesting a link between PTSD and physical health.  In not doing so, the examiner also did not provide an opinion for the raised theory of secondary service connection.  Thus, again, the Board is unclear if the examiner considered the articles submitted by the Veteran.  

Therefore, on remand, a VA opinion should be obtained to determine the etiology of the Veteran's hiatal hernia, with consideration of his lay statements and medical articles submitted.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 21, 2012, and from October 1, 2013, to July 9, 2014, is remanded.

The Board finds that the issue of TDIU is inextricably intertwined with the Veteran's remanded issue of service connection for hiatal hernia.  Therefore, adjudication on TDIU cannot be done until the issue of service connection for hiatal hernia is adjudicated first.

The matters are REMANDED for the following actions:

1. Obtain any outstanding VA or private treatment records.  Request that the Veteran assist with locating these records, if possible.  Associate these records with the claims file.

2. Then, obtain a VA opinion from an appropriate examiner to determine the etiology of the Veteran's hiatal hernia.  The claims file and a copy of this remand must be made available.  Following a review of the pertinent evidence, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hiatal hernia is directly related to service and/or is caused or aggravated by his service-connected PTSD.

A clear rationale must be provided for all opinions expressed.  The examiner must consider and discuss the Veteran's lay statements of feeling chest pain in 2006 or 2007, as well as the medical articles submitted by the Veteran suggesting a link between PTSD and physical health.  If the examiner is unable to provide an opinion without resorting to mere speculation then the examiner must state this and provide any information needed to make an opinion, if possible.  

3. Thereafter, readjudicate the claim on appeal.  If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning these matters to the Board for further appellate review.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Brown, Saudiee

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.