Citation Nr: 21074818 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-55 449 DATE: December 16, 2021 ORDER Entitlement to service connection for multi-level L4-S1 spinal fusion for degenerative disc disease with degenerative joint disease of the lumbar spine (previously addressed as spondylolisthesis and degenerative arthritis of the spine) is granted. Entitlement to an initial evaluation in excess of 30 percent prior to November 13, 2017, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran's multi-level L4-S1 spinal fusion for degenerative disc disease with degenerative joint disease of the lumbar spine (previously addressed as spondylolisthesis and degenerative arthritis of the spine) was aggravated by his in-service motor vehicle accident. 2. Prior to November 13, 2017, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity 3. From November 13, 2017, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for multi-level L4-S1 spinal fusion for degenerative disc disease with degenerative joint disease of the lumbar spine (previously addressed as spondylolisthesis and degenerative arthritis of the spine) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial evaluation in excess of 30 percent prior to November 13, 2017, and in excess of 70 percent thereafter for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from July 11, 2006 to February 10, 2007 and from December 3, 2007 to December 15, 2008. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Entitlement to service connection for multi-level L4-S1 spinal fusion for degenerative disc disease with degenerative joint disease of the lumbar spine (previously addressed as spondylolisthesis and degenerative arthritis of the spine) The Veteran contends that his lumbar spine condition that preexisted service was permanently worsened as a result of service. Reserve service treatment records note the Veteran injured his back on October 16, 2009, during an accident when he was on his way to weekend Reserve duty drill that was subsequently found to be in the line of duty. In October 2017, the Veteran attended a VA Back Conditions examination. The examiner diagnosed multilevel L4-S1 spinal fusion for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine. Further, he opined, in pertinent part, "It is my medical opinion that the motor vehicle accident that veteran experienced in October 2009 aggravated the pre-existing low back condition that was present after the motor vehicle accident of July 2009." The remaining evidence of record is silent for a medical opinion stating otherwise. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar disability was aggravated by the October 2009 motor vehicle accident found to be during the line of duty. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for multi-level L4-S1 spinal fusion for degenerative disc disease with degenerative joint disease of the lumbar spine (previously addressed as spondylolisthesis and degenerative arthritis of the spine) is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the disability at issue. Schafrath v. Derwinski,1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119(1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Entitlement to an initial evaluation in excess of 30 percent prior to November 13, 2017, and in excess of 70 percent thereafter for PTSD. In a December 2014 rating decision, the Veteran was awarded service connection for PTSD was an initial evaluation of 30 percent, effective August 17, 2011, the date he filed his claim. He disagreed with this evaluation and a subsequent November 2017 rating decision increase his evaluation to 70 percent, effective November 13, 2017. The Veteran continues to disagree with the evaluations awarded so the issue before the Board is whether the Veteran is entitled to an initial evaluation in excess of 30 percent prior to November 13, 2017, and in excess of 70 percent thereafter for PTSD. The Veteran 's PTSD is evaluated under the General Formula for Mental Disorders (General Formula). See 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, a 30 percent rating is warranted 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Veteran attended a VA PTSD examination in March 2012. During the time of the exam, the Veteran was enrolled at college and working full time at a casino. He endorsed the symptom of hypervigilance. The examiner reported there were no obvious deficiencies noted in his occupational productivity or capacity. The Veteran reported intrusive memories, sleep impairment, lowered productivity, avoidance, mood swings, anger and irritability without provocation. He stated he blamed the breakup of his relationship of 3 years on his mood swings and irritability. The examiner reported his symptoms were not severe, but they appeared to have a mild impact on both social and occupational capacity. The examiner reported the Veteran was alert and groomed appropriately. Mood and affect were appropriate to content of material discussed but mildly restricted. Speech was normal. There was no evidence of perceptual impairment or any evidence of thought disorder. There was no evidence of either suicidal or homicidal ideation and he was oriented to time place and person. Memory, concentration, abstract reasoning, judgment and impulse control were all intact. Insight was intact as well. The Veteran reported memories of experiences overseas that impacted his daily functioning. The examiner noted he remained fully independent with regard to all activities of daily living. The examiner summarized the Veteran manifested mild symptoms of chronic posttraumatic stress disorder. He experienced symptoms of hypervigilance, intrusive memories, heightened awareness of immediate surroundings with mood swings, including anger and irritability. He avoided cues and triggers that evoke memories of his experiences. The examiner stated his level of impairment is relatively mild. The Veteran demonstrated occupational and social impairment with mild or transient symptoms that only appear to affect both social and occupational functioning during periods of heightened stress. Wilmington VAMC records indicate the initial mental health assessment appointment was January 14, 2014. The Veteran presented with anger management problems, increased stress and possible PTSD. He denied suicidal or homicidal ideation and was attending school at that time. The examiner reported he was cooperative. The Veteran's memory appeared intact for short- and long-term recall and thought process was goal oriented and organized. He had good insight but judgment was impaired when drinking or angry. He noted sleep disturbance due to back pain. Record from February 2014 shows treatment for anger management. Record from March 2014 shows he denied suicidal or homicidal thoughts, plans or ideations. Thought process was goal oriented with no evidence of thought disorder noted. He also denied auditory or visual hallucinations, unusual experiences and special powers, etc. The Veteran was oriented to person, place and time. Memory appeared intact for both long term and short-term memory recall. No cognitive impairment noted. He demonstrated fair insight and judgment. Record dated May 2014 shows the Veteran reported an argument with a stranger that almost escalated to violence prior to someone intervening. The examiner reported motor activity was unremarkable. Speech was of normal rate and pattern. Thought process were goal oriented with no evidence of thought disorder noted. Record dated August 2014 indicate the Veteran continued to receive anger management treatment. Record from October 2014 shows reported concerns of losing his job due to back pain and missing work. Record from January 2015 shows the Veteran presented as euthymic but experienced periods of anxiety and depression. The examiner reported memory and judgment were within normal limits. The Veteran denied suicidal or homicidal ideation. The record indicates the Veteran has shown improvement with anger management. He attends group therapy depending on school and work schedule. He also attends individual therapy once or twice per month. Record from February 2015 indicates the Veteran denied suicidal thoughts, plans, or ideations and presented euthymic. His general appearance was clean and well kempt. Gait and motor activity were unremarkable. Speech was of normal rate and pattern. Thought process was goal oriented with no evidence of thought disorder noted. The Veteran denied auditory or visual hallucinations, unusual experiences and special powers, etc. No contrary evidence was elicited during this interview. Orientation was times 3. Memory appeared intact for both long term and short-term memory recall. No cognitive impairment noted. The Veteran demonstrated good insight and judgment. The examiner's impression was that his prognosis was good. Record from July 2015 shows the Veteran reported concerns of losing his job because the therapy was not working for his back and his physician would not approve more time. He was anxious and frustrated. He denied suicidal ideation or homicidal ideation and was oriented to person, place and time. His memory appeared intact and he demonstrated fair insight and judgement. Record from January 2016 shows the Veteran continued to experience anger problems. He also spoke about financial difficulties and being unemployed. The record shows despite this, the Veteran reported he continued to gamble and that, "I usually come out on top." He also noted the difficulty recovering from back surgery and that he was planning a couple of vacations to help. The examiner reported similar objective findings with memory intact with fair insight and judgment Record from April 2017 shows the Veteran denied suicidal or homicidal ideation. No cognitive impairment was noted. He demonstrated good insight and judgment. Record from July 2016 indicates the Veteran reported financial troubles and frustration finding work he was able to do that did not agitate his back. He noted he was working part-time in a funeral home but they have not been calling. He was also landscaping but often felt back pain. The examiner reported similar objective findings as prior appointments. His speech was of normal rate and pattern. Thought process were goal oriented with no evidence of thought disorder noted. He denied auditory or visual hallucinations, unusual experiences and special powers, etc. No contrary evidence was elicited during this interview. Orientation was times 3. Memory appeared intact for both long term and short-term memory recall. No cognitive impairment noted. He demonstrated good insight and judgment. Record from August 2017 shows the Veteran presented as irritable. He reported an argument with a family member. He denied suicidal or homicidal ideation. He denied visual or auditory hallucinations. He was oriented to person, place and time. His memory appeared intact for both long and short-term recall. There was no cognitive impairment noted. He demonstrated fair insight and judgment. Record from October 2017 shows the Veteran denied suicidal thoughts, plans, or ideations as well as denied homicidal thoughts, plans or ideations. He presented as dysphoric. General appearance was clean and well kempt. His gait and motor activity were unremarkable. His speech was of normal rate and pattern. Thought process was goal oriented with no evidence of thought disorder noted. He denied auditory or visual hallucinations, unusual experiences, special powers, etc. No contrary evidence was elicited during the interview. Orientation was times three. Memory appeared intact for both long term and short-term memory recall. No cognitive impairment noted. The Veteran demonstrated fair insight and judgment. The Veteran attended a VA PTSD exam in November 2017. The examiner added an additional diagnosis of major depressive disorder, recurrent, without psychotic features and reported the diagnoses are not independent of each other and result from the same etiology. However, the symptoms that comprise each disorder are severe enough that they require independent attention. The Veteran reported that 2 years ago he lost his job as a casino dealer in Atlantic City due to back surgery. He stated he was rushed back to work before he was physically healthy and was unable to complete work. He has not been unable to find work since that time. He had unemployment benefits for a while, but they have run out. He also reported that he was declaring bankruptcy today and will be moving back home with his mother as a result of his limited finances. He reported that he obtained his associates degree in general studies last year. The Veteran also sees a psychiatrist through the VA and attends group therapy, "as often as possible," but this is generally only every other month. He denied any history of psychiatric hospitalizations or suicide attempts. He reported that he thinks about suicide, "a lot lately." He denied having a plan or intent. He reported that he would never act on these urges because of how badly it would hurt his mother. The examiner reported the Veteran was engaged in the evaluation. He alternated between tearful and agitated. He was casually, appropriately dressed for the weather and occasion. No immediate safety concerns were noted when a suicide assessment was completed. He stated that he was not currently feeling suicidal and was oriented to person, place and time. He noted that his PTSD has caused him to be, "irritable, short tempered and verbally abusive to my now ex-girlfriend." He stated that he had never been physically violent towards her. He stated that he would like to be in regular therapy. In August 2021, the Veteran attended a Board hearing. In pertinent part, he testified to memory issues in 2014 during college to the point where he attests that his college tested him "to see if he had something wrong with his memory physically." He also testified to multiple short-term relationships starting in 2009 that all ended because of anger and distrust. In September 2021, several buddy statements from the Veteran's former college classmates collectively indicated the Veteran suffered from memory issues. Based on the foregoing evidence of record, the Board finds that a higher evaluation is not warranted for either appeal period. Prior to November 13, 2017, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. VA and private treatment records, along with the VA Mental examination of record during this appeal period, indicate that the Veteran's PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). While the Veteran did experience symptoms contemplated by a 50 percent rating, namely, difficulty in establishing and maintaining effective work and social relationships, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. From November 13, 2017, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. VA and private treatment records, along with the VA Mental examination of record during this appeal period, indicate that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (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); 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). In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 50 percent rating prior to November 13, 2017, and in excess of 70 percent thereafter. The criteria for a higher evaluation for each appeal period are not met and the appeal must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.