Citation Nr: 21071847 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 20-02 065 DATE: December 1, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for thoracolumbar spine chronic strain with spasm, right side, prior to May 24, 2019; and in excess of 20 percent thereafter is remanded. FINDING OF FACT Throughout the claims period, the Veteran's PTSD is manifested, at worst, by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an increased rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to May 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). By rating decision issued in November 2019, the RO increased the evaluation for the Veteran's thoracolumbar spine disability to 20 percent from May 24, 2019. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that in a separate February 2021 VA Form 10182 Decision Review Request: Board Appeal (AMA Notice of Disagreement), the Veteran appealed the issue of the effective date assigned for entitlement to a total disability rating based upon individual unemployability (TDIU) under the Appeals Modernization Act (AMA) review system. Accordingly, that claim will be addressed in a separate Board decision. The Board is aware that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Such is not the case in the present appeal. The Veteran's claim for TDIU was raised in conjunction with his claims for increased ratings. All three claims were filed in March 2017. The above referenced February 2021 AMA appeal is seeking an effective date for the award of TDIU prior to March 2017. (CONTINUED NEXT PAGE) Entitlement to an Increased Rating in Excess of 30 Percent for PTSD The Veteran is seeking an increased rating for his service-connected PTSD. He contends the assigned 30 percent rating does not reflect the severity of his symptoms. See November 2017 Affidavit. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently evaluated as 30 percent disabling under Diagnostic Code 9411 for PTSD, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent evaluation is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; 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. A maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When considering ratings thereunder, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Turning to the evidence of record, the Veteran was afforded a VA examination in June 2017. The examiner noted VA records were silent for any mental health treatment and that a January 2014 VA primary care outpatient note indicated that screening was negative for PTSD and/or depression. The examiner noted the Veteran's report that he resides with his fifth wife and that his previous marriage had ended due, in part, to drinking problems. The Veteran described his marriage as "stable and good" with "no more drinking problems, and no violence." The Veteran reported having a few friends and that he remains in contact with his best friend who lives in Phoenix. The Veteran reported starting, but quitting hobbies. He reported that he declined to go on a vacation with his wife and described himself as a homebody. The Veteran reported going to the fitness center three times per week. With regards to work, the Veteran stated that he stopped working in 2009 because "he didn't feel like going to work anymore, and just wanted to be home." The Veteran reported experiencing panic attacks when driving which he described as "anxious, flutter in his stomach, and change in breathing." He reported experiencing a panic attack six months prior after reducing his prescribed Paxil. He denied being in therapy or counseling. He reported getting between six and seven hours of sleep each night, and that he still has occasional nightmares. He reported intrusive memories, a quick temper "over little things," but he denied getting violent or verbally abusive. He described feeling "bouts of numb mood." With regards to symptoms, the examiner noted persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; markedly diminished interest or participation in significant activities; hypervigilance; exaggerated startle response; and sleep disturbance. The examiner noted the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner also noted symptoms to include anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbance of motivation and mood. The Veteran was noted to be cooperative, friendly, appropriately dressed, and appropriately groomed. He had normal speech, calm psychomotor movement, and full affect. He was noted to be upbeat with a mildly anxious mood. He had normal cognition, good insight, and good judgment. He denied suicidal ideation or homicidal ideation. The examiner noted the severity level increased since the Veteran's previous exam based on his increasing avoidant behavior. In this regard, the examiner noted the Veteran has avoided hobbies such as fishing and vacations with his wife due to "just want[ing] to stay home." Occupationally, the examiner indicated the Veteran's PTSD would cause the Veteran to have mildly affected concentration due to increased anxiety. The examiner also indicated the Veteran would likely experience regular panic attacks which would negatively affect his workday, should he have to drive for employment. The Veteran was diagnosed as having PTSD with mild to moderate symptoms. The examiner concluded 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. In his November 2017 Affidavit, the Veteran wrote that his PTSD related anxiety reduced his tolerance for stress. The Veteran was afforded an additional VA examination in May 2019. The examiner noted the Veteran reported having nightmares and intrusive thoughts of combat, that he made efforts to avoid talking about combat, and that he described himself as being distant from others and mistrustful. He reported sleep disruption, irritability, and hypervigilance. He reported having panic attacks approximately once per month related to PTSD. The examiner noted the Veteran's report that he continues to live with his wife of seven years, and that the marriage is going well. He reported no significant problems between them. The Veteran reported that he goes to the gym, with his wife, approximately five times per week. The Veteran reported that he does not have close friends. He reported that he last worked in 2009, and that he had missed no time from work due to mental health issues. He reported that he is currently prescribed Paxil. With regards to symptoms, the examiner noted persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; feelings of detachment or estrangement from others; irritable behaviors and angry outbursts; hypervigilance; and sleep disturbance. The examiner noted the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner also noted symptoms to include anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was noted to be casually dressed and well groomed. He spoke freely during the exam. He was correctly oriented to person, place, time, and purpose. The Veteran's thoughts were noted to be logical and goal directed. There were no signs of major psychopathology such as hallucinations or delusions. His affect was noted to be within normal limits and his mood was noted to be neutral to happy. His attention and memory were noted to be intact. The examiner diagnosed PTSD with mild to moderate symptoms. The examiner determined 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. Subsequent VA treatment records document the Veteran's diagnosis of PTSD. However, other than listing his use of Paxil, those records do not show ongoing treatment or counseling for PTSD symptoms. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's PTSD, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that the social and occupational impairment associated with the Veteran's PTSD symptoms is best approximated by the existing 30 percent rating. An increased rating in excess of 30 percent is not warranted at any point during the appeal period. See Vazquez-Claudio, 713 F.3d at 117; Bankhead, 29 Vet. App. at 22. Collectively, the above-described evidence reflects that the Veteran's symptoms have included anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. The Board acknowledges that the examiner who provided the June 2017 VA examination noted additional symptoms of disturbance of motivation or mood, and that the May 2019 VA examiner noted irritable behavior, angry outbursts, and difficulty in establishing and maintaining effective work and social relationships, which are symptoms that are consistent with a 50 percent rating. However, the weight of the evidence shows that the Veteran has generally been able to function satisfactorily with routine behavior, self-care, and conversation. In this regard, at the time of the June 2017 VA examination, the Veteran reported that his marriage is "stable and good," and that he maintains contact with a friend whom he describes as his "best friend." While the Veteran reported that finds himself quitting certain hobbies, he reportedly went to the fitness center three times per week. At the time of the May 2019 VA examination, the Veteran continued to report that his marriage is going well and that there are no significant problems. Additionally, the Veteran continues to go the gym, with his wife, five times per week. He, therefore, remains committed to his wife and maintains some regular social connections and hobbies. Additionally, there are no records reflecting the Veteran has exhibited impaired judgment or a desire to harm himself or others during the period on appeal. Moreover, the examiners who provided the June 2017 and the May 2019 VA examinations determined that the overall severity of the Veteran's disability was mild to moderate. Thus, the totality of the record is most consistent with the level of impairment associated with a 30 percent rating for PTSD. With regards to occupational functioning, while the June 2017 VA examiner indicated that employment could be impacted due to mildly affected concentration due to anxiety and potential panic attacks, should the Veteran be required to drive for employment, the Veteran denied missing time from work due to mental health issues. See May 2019 VA examination report. Additionally, the Veteran is in receipt of a TDIU as a result of the aggregate effect of his service-connected disabilities. The Board finds that at no point during the period on appeal have the Veteran's symptoms and resulting impairment met, or more nearly approximated, the level of impairment contemplated in the next higher, 50 percent rating. As indicated, under the rating formula, such a rating is assigned for occupational and social impairment with reduced reliability and productivity. The evidence has shown no flattened effect, issues with speech, panic attacks more than once per week, difficulty understanding complex commands, or impaired judgment or thinking as listed in the rating criteria as the Veteran's symptoms are less severe, less frequent, and shorter in duration, throughout the period on appeal, than those contemplated by a 50 percent rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of an increased rating in excess of 30 percent for the Veteran's PTSD. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an Increased Rating in Excess of 10 Percent for Thoracolumbar Spine Chronic Strain with Spasm, Right Side, Prior to May 24, 2019; and in Excess of 20 Percent Thereafter is Remanded. Unfortunately, the Board finds that further action on the Veteran's claim for higher staged ratings for his thoracolumbar spine disability is warranted, even though such will, regrettably, further delay an appellate decision on this matter. During a June 2017 VA spine examination, the Veteran reported chronic back pain and flare-ups intensified with bending, lifting, carrying, or static positions. The examiner noted pain on forward flexion, extension, lateral flexion, and lateral rotation, with functional impairment described as decreased motion due to pain. Additionally, the examiner noted objective evidence of pain with weightbearing and non-weightbearing, and tenderness on the right side with no spasms seen. While the examiner noted decreased motion due to pain, the examiner stated that an opinion regarding if, when, and to what extent, in degrees, further repetitive use could significantly limit functional ability could not be rendered without resorting to mere speculation as it did not occur during examination. The examiner reported no passive range of motion testing. The Veteran was then afforded a May 2019 VA spine examination, wherein the Veteran reported soreness and stiffness in his back and flare-ups with lifting, bending, carrying, and twisting activity. The examiner reported the Veteran avoids these activities. The examiner noted pain on forward flexion, extension, lateral flexion, and lateral rotation, with functional impairment described as limited motion due to pain. Additionally, the examiner noted objective evidence of pain with weightbearing and non-weightbearing, and tenderness about the lumbar spine and SI joints which was mild to moderate on palpation. The examiner reported no passive range of motion testing. The June 2017 and May 2019 VA examination reports reflect only a single set of range of motion measurements for the thoracolumbar spine, with no indication as to whether such measurements were for active or passive motion, or in weight bearing or non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Both examiners indicated that there was decreased motion due to pain, but made no specific finding as to the point at which motion limiting pain began. The Court has found similar examination findings to be inadequate because the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Additionally, the Board notes that in his November 2017 Affidavit, the Veteran wrote that his spine condition makes it very difficult for him to sit still or stand for prolonged periods. He stated that he needs to be able to lie down in order to relieve his back pain. Moreover, the May 2019 VA examination report indicates the Veteran avoids activities that spark flare-ups. Such statements suggest a decrease in ROM during flare-ups and after repetitive use over time that appears to have not been taken into consideration by the June 2017 and May 2019 VA examiners when providing an estimate of the Veteran's limitation of motion or severity of his disability particularly during flare-ups, or after repetitive use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, a new VA examination that identifies the limits or points within the Veteran's range of motion that he avoids in order to protect against flare-ups would be helpful in assigning a rating for his service-connected thoracolumbar spine disability. The Board, therefore, finds that the June 2017 and May 2019 VA examination reports are not sufficient to decide the Veteran's claim at this time. As such, the Board finds that a remand is warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA thoracolumbar spine examination to determine the nature and severity of his spine disability and resulting functional impairment. The claims file and a copy of this Remand must be made available to the examiner. The examiner must test the Veteran's active thoracolumbar spine motion, passive thoracolumbar spine motion, and note the presence of pain during weightbearing and non-weight bearing. With regard to flare-ups, the examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a period of flare-up, the examiner is asked to elicit information from the Veteran, medical records, and other available sources, concerning the severity, frequency, and duration of flare-ups, and the degree of functional loss during flare-ups and following repetitive use over time. Efforts to obtain such information must be documented. The examiner is also requested to comment on the following: (a) whether the Veteran's diminished range of motion and associated functional impairment constitutes the functional equivalent of ankylosis; and, (b) if so, whether the Veteran demonstrates the functional equivalent of unfavorable ankylosis of (i) the entire thoracolumbar spine or (ii) the entire spine. Then, based upon a review of the prior VA examinations, to include the June 2017 and May 2019 VA spine examinations, the examiner is also requested to provide retrospective medical findings on the following: (c) Veteran's pain on range of motion testing of the thoracolumbar spine and an estimation of functional loss during flare-ups and following repetitive use over time. (d) whether the Veteran's diminished range of motion and associated functional impairment constitutes the functional equivalent of ankylosis; and, (e) if so, whether the Veteran demonstrates the functional equivalent of unfavorable ankylosis of (i) the entire thoracolumbar spine or (ii) the entire spine. Then, the examiner is requested comment upon the following: (f) whether there is evidence of physician prescribed bedrest at any time during the appeal period; and, (g) if so, the total number of days per week over any 12-month period the Veteran was prescribed bedrest by a physician. If it is not possible to provide a specific measurement or estimate without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale or explanation should be provided for any opinion reached. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.