Citation Nr: 21007727 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-01 858 DATE: February 10, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent from February 27, 2014, through August 4, 2019, and in excess of 20 percent from August 5, 2019, for degenerative joint disease (DJD) of the lumbar spine and bilateral sacroiliac joints is denied. Entitlement to a disability evaluation of 50 percent for post-traumatic stress disorder (PTSD) is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. FINDINGS OF FACT 1. From February 27, 2014, through August 4, 2019, the Veteran’s DJD lumbar spine is manifest by forward flexion limited to 80 degrees, and a combined range of motion limited to 190 degrees. From August 5, 2019, the Veteran’s DJD lumbar spine is manifest by forward flexion limited to 60 degrees, and a combined range of motion limited to 155 degrees. 2. Resolving reasonable doubt in favor of the Veteran, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. 3. Resolving reasonable doubt in favor of the Veteran, his GERD began during active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent from February 27, 2014, through August 4, 2019, and in excess of 20 percent from August 5, 2019, for DJD of the lumbar spine and bilateral sacroiliac joints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a disability rating in excess of 50 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for service connection for GERD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to April 2007. He served in the Southwest Asia Theater during the Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 (PTSD, gastrointestinal problems) and November 2014 (spine) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The claims were previously remanded by the Board in December 2019. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to a disability evaluation in excess of 10 percent from February 27, 2014, through August 4, 2019, and in excess of 20 percent from August 5, 2019, for DJD of the lumbar spine and bilateral sacroiliac joints On February 27, 2014, the Veteran filed an increased rating claim for his service-connected lumbar spine disability. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board notes that as of August 5, 2019, the Veteran was granted service connection for radiculopathy of the bilateral lower extremities, rated as 10 percent disabling. The evidence of record fails to show his radiculopathy has worsened to warrant higher ratings, or that he is entitled to an additional separate rating for a neurological abnormality. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). February 27, 2014, - August 4, 2019 The Board finds that the preponderance of the evidence is against a rating in excess of 0 percent for DJD of the lumbar spine and bilateral sacroiliac joints from February 27, 2014, through August 4, 2019. During the relevant period, the Veteran was afforded three VA examinations to assess his lumbar spine disability. The examinations occurred in September 2014, November 2014, and August 2016. At worst, rang of motion testing revealed his lumbar spine forward flexion was limited to 80 degrees, and his total combined range of motion was limited to 190 degrees. He did not report having any lumbar spine flare-ups until the August 2016 examination. The Veteran reported that he has a flare episode every month that requires him to remain at home for one to two days due to pain and stiffness. The examiner noted that the Veteran’s pain and lack of endurance significantly limit his functional ability during flares. The Board acknowledges the Veteran’s lay reports of symptoms and that there was additional functional loss due to flare-ups. However, the degree of additional limitation reflected by the Veteran’s lay statements, including having one flare-up episode per month, would not result in limitation of motion more nearly approximating 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 during the relevant period. A review of the Veteran’s treatment notes do not indicate that his lumbar spine disability is more severe than what is noted in the VA examination reports. Additionally, the medical records and VA examination reports fail to show that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, each VA examiner noted that the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a lumbar spine disability from February 27, 2014, through August 4, 2019. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. August 5, 2019 - Present The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s lumbar spine disability since August 5, 2019. The Veteran testified at a Board hearing on August 5, 2019. He stated that his back pain had worsened. He was afforded a VA examination in January 2020. During the examination, the Veteran stated that physical activity causes increased pain. The Veteran also reported having lumbar spine flares that at times cause him to not want to get off the couch due to pain. He did not state how often such flares occur or how long they last. During range of motion testing, the Veteran demonstrated lumbar spine forward flexion to 60 degrees, and had a combined range of motion of 155 degrees. He did not have an additional loss of function or range of motion following repetitive use testing, nor was he determined to have ankylosis of the lumbar spine. The VA examiner stated the Veteran’s functional ability would not be significantly limited during flare-ups. The Board acknowledges the Veteran’s lay reports of pain and flare-ups. However, when considering the evidence as a whole, the degree of limitation caused by the Veteran’s lumbar spine disability would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Treatment notes fail to show the severity of the Veteran’s lumbar spine disability warrants a rating in excess of 20 percent since August 5, 2019. Further, the Veteran was not determined to have IVDS in order to warrant a higher rating under Diagnostic Code 5243. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a lumbar spine disability from August 5, 2019. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability evaluation in excess of 30 percent for PTSD The Veteran asserts that he is entitled to an increased disability rating for his service-connected PTSD, currently rated as 30 percent disabling under Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. Resolving reasonable doubt in favor of the Veteran, the Board concludes the severity of his PTSD symptoms more closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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 was afforded VA PTSD examinations in September 2014 and August 2016. The examiners determined that the Veteran’s PTSD manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment), and symptoms associated with a 50 percent rating (disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships). Each VA examiner determined that the Veteran’s PTSD symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication, which is consistent with a 10 percent rating. In July 2015, the Veteran submitted a PTSD Disability Benefits Questionnaire (DBQ) and mental status examination report completed by a private psychologist. The private physician indicated the Veteran’s PTSD manifested by symptoms associated with a 30 percent rating (depressed mood, mild memory loss, and chronic sleep impairment) as well as symptoms associated with a 50 percent rating (disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships). The private psychologist concluded that the Veteran’s PTSD resulted in 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. Such an assessment is consistent with the 30 percent disability rating. Additionally, the private physician described the Veteran’s symptoms as moderate, noting that beneath his superficial adequate functioning he remains significantly depressed and despondent. At the August 2019 Board hearing, the Veteran’s representative explained that medical records show the Veteran’s symptoms include sleep impairment, anger, irritability, and social withdrawal. The Veteran reported that due to his PTSD, there are moments when his family members are afraid to speak to him because of his anger. He stated that he interacts with a limited amount of people because he has difficulty handling social situations. Additionally, the Veteran described having episodes that interfere with his ability to focus and concentrate at work, which then causes him to fear that he may endanger others by failing to pay attention. At the January 2020 VA examination, in addition to symptoms listed in his prior VA examinations, it was determined the Veteran’s PTSD also manifested as a symptom that is associated with a 70 percent rating (impaired impulse control (such as unprovoked irritability with periods of violence)), as well as symptoms that are not associated with a particular rating (nightmares, intrusive thoughts). The January 2020 VA examiner also determined that the resulting occupational and social impairment from the Veteran’s PTSD symptoms are consistent with a 10 percent rating. Resolving reasonable doubt in favor of the Veteran, the Board finds that for the entire period on appeal, the severity of the Veteran’s PTSD more closely approximates a 50 percent rating. The medical evidence discussed above shows the Veteran had a range of PTSD symptoms that were predominately associated with the 30 percent and 50 percent ratings. Further, based on the Veteran’s Board hearing testimony, as well as the January 2020 VA examination which listed symptoms that are not associated with a specific rating under the schedular rating criteria, we find the Veteran’s PTSD symptoms warrant a 50 percent rating, and no higher. We acknowledge that the Veteran was noted to have one symptom associated with a 70 percent rating. However, when considering the full disability picture for the entire period on appeal, the Board finds the preponderance of the evidence is against a finding for a rating in excess of 50 percent. A review of the medical records show the Veteran has consistently denied having any suicidal ideation. There are no reports of record of other symptoms associated with the 70 or 100 percent ratings, such as engaging obsessional rituals, neglect of personal hygiene, or persistent delusions or hallucinations. We also note that during the Board hearing, the Veterans’ representative specifically stated that the evidence supports a 50 percent rating. Accordingly, the Veteran’s PTSD warrants a 50 percent rating, and no higher, for the entire period on appeal. 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). 3. Entitlement to service connection for GERD The Veteran contends that he has a current gastrointestinal condition that is related to his military service. The Board concludes that the Veteran has a current gastrointestinal disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records from 2016 show the Veteran has a current diagnosis of GERD. During service, the Veteran was seen for complaints of vomiting and abdominal pain in June 2001 and May 2002, which appear to be associated with the consumption of certain foods. It is unclear from the service treatment records if these two instances were signs and symptoms of GERD. Thus, the question becomes whether the current disability is related to service. On this question there is evidence in favor of and against the claim. The evidence in favor of the claim includes the Veteran’s lay statements. During a Decision Review Officer (DRO) hearing in February 2016, the Veteran reported that his gastrointestinal symptoms began in 2007 or 2008, and have been near-constant since service separation. At the January 2020 VA examination, the Veteran stated that he experienced indigestion and heartburn during service, but did not seek medical attention. Instead, he self-treated with over-the-counter medications. The Board finds the Veteran’s reports of gastrointestinal problems during service and since service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372, 492 F.3d at 1372 (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The evidence against the claim includes a January 2020 VA esophageal conditions examination. The examiner noted the Veterans 2016 GERD diagnosis. However, she opined that it was less likely than not that the claimed condition was incurred in or caused by military service. As rationale, the VA examiner noted that during service the Veteran did not complain of any gastrointestinal problems, and on his service discharge medical report he denied having frequent indigestion. The VA examiner also stated that post-service medical treatment records are silent for any gastrointestinal complaints until 2016. The Board can only assign limited probative value to the VA examiner’s opinion because it did not account for the Veteran’s reported in-service symptoms, and the continuation of those symptoms since service. Rather, the VA examiner relied on a lack of medical evidence in support her opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current GERD is related to his military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.