Citation Nr: 21070747
Decision Date: 11/25/21	Archive Date: 11/25/21

DOCKET NO. 11-07 794
DATE: November 25, 2021

THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety disorder, and depressive disorder.

2. Entitlement to a disability rating in excess of 20 percent beginning March 30, 2012 and in excess of 40 percent from July 15, 2020 for service-connected low back disability.

ORDER

Entitlement to a disability rating of 40 percent, but no higher, for the period from March 30, 2012 to July 15, 2020 for service-connected low back disability is granted. 

Entitlement to a disability rating in excess of 40 percent for the period from July 15, 2020 for service-connected low back disability is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety disorder, and depressive disorder is remanded.

FINDING OF FACT

From March 30, 2012, the Veteran's spinal disability manifested with forward flexion to 5 degrees; but ankylosis was not shown at any time during the period on appeal and there was no evidence of IVDS with incapacitating episodes requiring prescribed bed rest of at least 6 weeks during the bast 12 months.

CONCLUSIONS OF LAW

From to March 30, 2012 to July 15, 2020, the criteria for a disability rating of 40 percent, but no higher, have been met for service-connected low back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2021).

From July 15, 2020, the criteria for a disability rating in excess of 40 percent, have not been met for service-connected low back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2021).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran has active-duty service in the United States Army from January 2008 to August 2008.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

These matters were last before the Board in March 2018 when they were remanded for additional VA examinations. With regards to the claim for an increased disability rating for a lumbar spine disability, the Board finds that there has been substantial compliance with its remand directives.

In a subsequent May 2021 rating decision, the RO increased the Veteran's disability rating for a lumbar spine disability from 20 percent to 40 percent, effective July 15, 2020. As this was not a full grant of the benefit sought on appeal, and the Veteran did not indicate that she agreed with the increased rating, her claim has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

The issue of entitlement to a psychiatric disability is addressed in the REMAND section of this decision.

Entitlement to a disability rating in excess of 20 percent beginning March 30, 2012 and in excess of 40 percent from July 15, 2020 for service-connected low back disability.

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. In relevant part, a 10 percent rating requires forward flexion of the thoracolumbar spine to 85 degrees or less; a combined range of motion of the thoracolumbar spine of 235 degrees or less; 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 requires 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 requires 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.

Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003).

Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrants a 10 percent rating. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

For purposes of rating under Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. As no episodes requiring bed rest prescribed by a physician and treatment by a physician are shown in the instant case, further discussion of the criteria for rating based on incapacitating episodes is not necessary.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to factors such as disability causing less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination. The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss but is just one fact to be considered when evaluating functional impairment. Id.

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).

Furthermore, to be considered adequate, VA examinations are required to include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

The Veteran is currently evaluated under Diagnostic Code 5243 for IVDS.

In March 2012 the Veteran underwent VA examination in connection with her claim. At the time the Veteran asserted that when she had back pain flare-ups she would have difficulty sitting for a prolonged period. During the physical examination the Veteran had forward flexion to 60 degrees and forward extension to 20 degrees with pain, and her bilateral flexion and rotation was to 20 degrees. There was no change in range of motion on repetition, and there was no evidence of radiculopathy. The VA examiner indicated that the Veteran had IVDS, and that she had one week of incapacitation per year. In this case, the Board notes that the VA examiner did not address whether the Veteran had any additional functional loss due to symptom flare-ups beyond asking the Veteran for her subjective complaints.

In its most recent March 2018 decision, the Board noted that during the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) made a precedential finding that a VA examiner must "elicit relevant information as to the veteran's flares or ask him to describe additional the additional functional loss, if any, he suffered during flares and then estimate why the veteran's functional loss due to flares based on all of the evidence of the record, including the veteran's lay information, or explain why she could not do so." Sharp v. Shulkin, 29 Vet. App. 26 (2017). Given that in this case the March 2012 VA examiner did not make an estimation as to whether the Veteran had any additional functional loss due to symptom flare-ups, the Board found that a new VA examination is necessary. Barr, 21 Vet. App. at 311.

The Veteran was afforded such a VA examination in July 2020. At the time the Veteran again asserted that when she had back pain flare-ups she would have difficulty sitting for a prolonged period. During the physical examination the Veteran had forward flexion to 40 degrees and forward extension to 10 degrees with pain; her bilateral flexion was limited 10 degrees and her bilateral rotation was limited to 20 degrees. There was no change in range of motion on repetition. However, upon repeated use over time and flare ups, pain and lack of endurance limited range of motion to 5 degrees in all measurements. Muscle, reflex, sensory, and straight leg raising tests were all normal. There was no evidence of radiculopathy. There was no evidence of ankylosis of any kind and the examiner indicated that the Veteran currently did not suffer from IVDS of the thoracolumbar spine.

Given that the March 2012 has been determined to be inadequate for rating purposes, the Board finds that the only adequate VA examination during the entire period on appeal is the July 2020 VA examination. Such examination clearly shows limitation of flexion to 5 degrees with flare ups and upon repeated use over time. For the period prior to June 15, 2020, this meets the criteria for an increased rating of 40 percent. Accordingly, a disability rating of 40 percent is applicable from March 30, 2012 to July 15, 2020. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5243, 4.3, 4.7.

However, for the entire period on appeal, there is no evidence of ankylosis of the lumbar spine and there is no evidence of a diagnosis of IVDS with prescribed bed rest for at least six weeks during the past 12 months. Accordingly, a disability rating in excess of 40 percent for any period on appeal is not warranted.

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with her lumbar spine disability.

REASONS FOR REMAND

Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety disorder, and depressive disorder is remanded.

In this case, the Veteran has a history of mental health symptoms, but she was denied entitlement to service connection based on a negative nexus opinion provided by a VA examiner in October 2009. The VA examiner diagnosed the Veteran with anxiety disorder, NOS, and borderline personality traits. The VA examiner opined that the Veteran's anxiety was not related to active-duty service because the Veteran presented with a borderline personality trait which usually develops earlier in life, and it was this personality trait that was exacerbating her anxiety disorder, which was second to economic difficulties.

In its March 2018 decision, the Board found that this opinion was insufficient to adjudicate the service connection claim. Indeed, it does not provide any rationale as to the manifestation of a borderline personality trait, and it does not explain why it would have exacerbated her anxiety symptoms. Moreover, the VA examiner noted that borderline personality traits begin early in life, but there is no rationale provided to support this contention as it relates to the Veteran. In the VA examination report the examiner indicated that the Veteran had diagnoses of depressive disorder and anxiety disorder since 2008 (the year of her separation), but he did not explain whether those were related to service. The Board notes that the Veteran was also diagnosed with an adjustment disorder and had a positive posttraumatic stress disorder (PTSD) screen in January 2009, several months after separation from service, and that she had a psychiatric hospitalization in May 2009. Simply stated, the Veteran has a history of mental health concerns since separation from service, but the opinion provides no rationale as to why these in-service diagnoses are or are not related to service. Given these deficiencies, the Board found in its previous decision that an additional VA examination was necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The Board also observed that the Veteran had a positive PTSD screen in January 2009; the Board stated that if it was determined that she wished to file a claim for PTSD the RO should follow proper development procedures for any in-service stressors.

 The matter was then remanded for the above-described development. The Veteran was scheduled for a VA psychiatric examination in June 2020. However, VA records indicate the examination was canceled at the Veteran's request. An additional examination was scheduled in May 2021. Similarly, VA records indicate that that examination was also canceled at the Veteran's request. It is unclear whether the Veteran was unable to attend such examinations due to scheduling conflicts, or whether she wishes to abandon her claim. While the May 2021 Supplemental Statement of the Case (SSOC) claimed that the Veteran had been sent a January 2021 letter informing her that a withdraw of an appeal must be made in writing, upon inspection of that letter, it does not contain such information. As there remains ambiguity as to why the Veteran cancelled her scheduled VA psychiatric examinations, and whether she wishes to withdraw her claim, the Board finds that upon remand she should be given an additional opportunity to be scheduled for an examination.

The Veteran is reminded that VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A Veteran must cooperate when she is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, when evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a).

The matters are REMANDED for the following action:

1. Send notice to the Veteran seeking clarification as to whether she wishes to pursue her claim for service connection for a psychiatric disability. To this end, the RO should include instructions on the proper method of withdrawing an appeal, should she so wish.

2. If it is determined that the Veteran is claiming entitlement to service connection for PTSD, provide her an opportunity to state her stressors, and then take all appropriate steps to verify the Veteran's claimed stressor(s). Forward a copy of the Veteran's available military personnel records, together with the stressor information that has been obtained, to the Joint Services Record Research Center (JSRRC), and ask that the JSRRC provide any additional information available regarding the Veteran's stressors. Determine if the stressors either (1) relate to a fear of hostile military or terrorist activity and are consistent with the places, types, and circumstances of his service; or (2) do not involve fear of hostile military or terrorist activity and have been sufficiently corroborated or verified. All actions to verify the alleged stressors should be fully documented in the record. If the information provided by the Veteran lacks sufficient specificity to be verified, make a formal finding to that effect.

3. Thereafter, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any acquired psychiatric disorder, to include adjustment disorder, anxiety disorder, and depressive disorder. If necessary, schedule separate examinations to address PTSD and acquired psychiatric disorders other than PTSD. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail.

Based on a review of the evidence, to include VA treatment records and lay statements, the examiner(s) should render any relevant diagnoses pertaining to an acquired psychiatric disorder. If PTSD cannot be diagnosed, the examiner should specifically state which diagnostic criteria are not met. For each diagnosed acquired psychiatric disorder, the examiner(s) should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the acquired psychiatric disorder began in service, was caused by service, or is otherwise related to service. The examiner(s) should address all diagnoses of record.

If PTSD is diagnosed, the examiner must indicate the specific stressor or stressors that led to the PTSD.

If any stressors are verified or relate to a fear of hostile military or terrorist activity, and the Veteran is diagnosed with PTSD, the examiner should opine as to whether the stressors are adequate to support a diagnosis of PTSD and, if so, whether the Veteran's symptoms are related to the claimed stressors.

In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.

A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report.

4. After all development has been completed, readjudicate the claim. If the benefits sought on appeal remain denied, issue the Veteran and her representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review.

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. E. Geary, 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.