Citation Nr: 21008713 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-20 924 DATE: February 17, 2021 ORDER For the period prior to August 12, 2020, entitlement to an increased, 70 percent disability rating for PTSD, is granted. For the period beginning August 12, 2020, an increased rating, in excess of 70 percent, for PTSD, is denied. An increased, 40 percent rating for lumbar spine, status post lumbar fusion (lumbar spine disability) is granted. Entitlement to a TDIU is granted. FINDINGS OF FACT 1. The severity of the Veteran PTSD more closely approximates an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. 2. The severity of the Veteran’s PTSD is not approximated by a total occupational and social impairment. 3. The Veteran’s lumbar spine disability more closely approximates a limitation of flexion of 30 degrees, with pain, weakness, fatigability or incoordination significantly limiting functional ability with repeated use over time and with flare-ups, due to factors including pain and weakness, which cause this functional loss. 4. The Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. For the period prior to August 12, 2020, the criteria for an increased, 70 percent disability rating for PTSD have been met. 38 U.S.C. § 1155; 38C.F.R. 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. For the period beginning August 12, 2020, the criteria for an increased rating, in excess of 70 percent for PTSD, have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for an increased, 40 percent rating for lumbar spine, status post lumbar fusion, but not higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DCs 5242, 5243. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to April 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2019, the Veteran and his mother, S.B., testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In December 2019, the Board remanded the case to the RO for further evidentiary development. In September 2020, the RO increased the disability rating for PTSD, from 50 percent to 70 percent, effective August 12, 2020. However, since this increase is not representative of a total grant of the benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. PTSD The Veteran is currently assigned a 50 percent disability rating for PTSD, for the period prior to August 12, 2020, and a 70 percent disability rating, for the period beginning August 12, 2020. 38 C.F.R. § 4.130, DC 9411. Specifically, the Veteran asserts that VA “committed reversible error under the [benefit of the doubt] doctrine, in denying an earlier effective date for the increased rating for the Veteran’s service-connected post-traumatic stress disorder (“PTSD”), as well as denying an even higher increased rating for the Veteran’s PTSD.” See October 2020 Appellate Brief. In this regard, the Board reiterates that while this case was on appeal, and after the December 2019 Board remand, the RO increased the Veteran’s service-connected PTSD disability rating from 50 percent to 70 percent, effective August 12, 2020. However, the Veteran did not file a notice of disagreement to this September 2020 rating decision. Nonetheless, as noted above, this rating increase did not constitute as a full grant of benefits sought, and thus, this issue has remained on appeal, before the Board. See AB, 6 Vet. App. at 35. Accordingly, the Board informs that the issues that the Veteran raises, are inaccurately characterized as an entitlement to “an earlier effective date for increased rating for the Veteran’s service-connected . . . PTSD, as well as . . . an even higher increased rating for the Veteran’s PTSD.” Rather, his assertions, and particularly, the issues for this PTSD claim, are more appropriately reflected as an entitlement to an increased rating for PTSD, in excess of 50 percent, for the period prior to August 12, 2020, and in excess of 70 percent, for the period beginning August 12, 2020. The criteria for evaluating PTSD are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). At his videoconference hearing, the Veteran testified that his PTSD is much worse than reflected by his 50 and 70 percent ratings. Some of the symptoms he reported, include and are not limited to, memory impairment, including difficulty with remembering family member names, forgetting to bathe and brush his teeth, forgetting that there is something in the refrigerator, and/or forgetting appointments. He even reported that there have been occasions where he wakes up and does not know where he is. He also stated that other than his wife and mother, he does not really have a relationship with his family. See June 2019 Videoconference Hearing Transcript. Upon review of the Veteran’s claims file, the Board finds that the Veteran’s testimony about the symptoms and manifestations of his PTSD are consistent with the medical evidence from both periods of the appeal, and specifically, prior to and beginning August 12, 2020. A. Period Prior to August 12, 2020 As noted above, the Veteran has been assigned a 50 percent disability rating for PTSD, for the period prior to August 12, 2020. The Veteran also asserts that VA “acknowledges that Dr. Ewing, the Veteran’s treating VA physician in 2014, stated that after reviewing the General Rating formula for mental disorders, he believes the Veteran’s PTSD is rated as 100% level. The Veteran further contends that this “statement clearly shows that the Veteran should be rated at 100%, as far back as 2014, yet the VA chooses to ignore the medical opinion of its own physician.” However, reliance on Dr. Ewing’s medical opinion was not proper, as this opinion had no probative value in the determination of the Veteran’s increased rating claim for PTSD. Specifically, in this November 2014 opinion in question, Dr. Ewing solely opined, as stated above, that based on his treatment of the Veteran, as well as a review of the General Rating Formula for mental disorders, he believes “his Post Traumatic Stress Disorder is rated at the 100% level.” He failed to provide a rationale and/or explain why the Veteran’s PTSD is approximated by a 100 percent disability rating. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that an inadequate medical evaluation includes evaluations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, and/or provide unsupported conclusions.). Nonetheless, while the Board has not relied on this opinion, in its determination of this PTSD claim, the Board finds that there are other pieces of evidence in the claims file, which provide more probative value, in the assessment of the severity of the Veteran’s PTSD. Collectively, the Board has considered the Veteran’s statements, a buddy statement, and other medical evidence, to include medical treatment records and a VA examination report. Specifically, in an August 2009 buddy statement, the Veteran’s mother, S.B., testified, in pertinent part, that since his separation from service, the Veteran moved into her home, and his life has been a struggle due to factors, including and not limited to depression and anxiety. She also explained that his trip to a VA facility only led to more medication that worsened his already fragile state, and that on some days, “he manages ok.” Describing the impact of his PTSD disability himself, the Veteran explained that he never gets a good night sleep; he always thinks someone is in his house; he cannot be in crowds or around other people he doesn’t know; and that while living with his mother and girlfriend, they help him when he gets into “attack mode”, yelling and screaming. See March 2015 Statement in Support of Claim. In September 2009, the Veteran was afforded a VA examination for an assessment of the severity of his PTSD. This VA examination report reflects that the Veteran is diagnosed with PTSD. The psychiatric summary in this VA examination report described the level of functional impairment of the Veteran’s PTSD as an occupational and social impairment with signs and symptoms that results in thinking, family relations, work, and mood. For each of these factors, the VA examiner provided an example. Specifically, she noted that the Veteran tended to focus on depressive thoughts (thinking); he hardly talks to his family, and his mother cries a lot because she does not know what is wrong with him (family relations); he reported that he is nervous around people, he may not pay attention to his work, he would be tired during the day, and that he cannot sleep at night (work); and that he feels sad and depressed (mood). He also stated that he does not go out to eat; he cannot go shopping; and that “because of people[, his] life persists of watching over [his] house” and he is always on guard. He further stated that he has horrible road rage and he is sometimes scared to drive because of flashbacks, and that he is not getting better. See March 2015 Statement in Support of Claim. With respect to family and social relationships, the VA examination report notes that the Veteran had divorced his wife, 2 months prior to this VA examination, and that he has a “good” relationship with his mother and sisters, although they are not close. However, he reported that he does not have any social relationships, and he described himself as “withdrawn.” In his leisure time, he indicated that he enjoys fishing. No history of suicide attempts, violence/assaultive behavior, and/or any issues associated with alcohol and/or substance abuse were noted. Additionally, the VA examination report notes that the Veteran does not have any history of hospitalizations. On mental examination, the VA examiner observed and noted that the Veteran was casually dressed; psychomotor activity was mildly restless; speech was clear and coherent; attitude towards the examiner was cooperative; affect was constricted; and the Veteran stated that his mood was depressed, down, and nervous. Further, the VA examiner noted that the Veteran’s attention was intact; he was oriented to person, time, and place; his thought process and thought content were unremarkable; there were no signs of delusion; and he understood the outcome of his behavior. Although sleep impairment was noted, the VA examination report indicates that the Veteran did not have hallucinations; he did not manifest inappropriate behavior; he did not have obsessive/ritualistic behavior; and that he did not have panic attacks. Further, there was no presence of homicidal and/or suicidal thoughts, and no episodes of violence. The VA examiner determined that the extent of the Veteran’s impulse control was fair, he did not have any problems with activities of daily living, and that remote, recent, and immediate memory were normal. On psychological evaluation, the VA examiner remarked that after the Veteran was administered the Beck Anxiety Inventory, he received a score that indicated that he had a “moderate” degree of anxiety. Further, the VA examiner noted that the Veteran reported having extreme problems with an inability to relax, and feeling nervous and scared. Additionally, the Veteran reported having moderate problems with feeling hot, having wobbliness in the legs, a fear of the worst happening, his heart pounding, feeling terrified, his hands trembling, difficulty breathing, having a fear of dying, and sweating. The Veteran additionally reported that his in-service combat, traumatic events are persistently re-experienced daily, in the form of intrusive thoughts, images, and nightmares, as well as intense physiological distress, when reminded of the event, as well as physiological reactivity to triggers of these traumatic events. The VA examiner also noted that the Veteran repeatedly attempts to avoid the traumatic memory and associated thoughts of feelings by attempting to not think, talk, or remember the traumatic aspects of it; he has repeatedly attempted to avoid people, places, or activities that might remind him of the event(s); he has significantly decreased participation in activities that he once enjoyed; he feels differently from others and remains isolated and detached; he also reported problems with sleep, irritability, exaggerated startled response, lack of concentration, and hypervigilance. Medical treatment records additionally reflect symptoms and manifestations of the Veteran’s PTSD. For example, a March 2014 speech pathology and consult note reflects that the Veteran reported having increased levels of anger, anxiety, and memory loss resulting in an inability to work and has difficulty with making/keeping friends. He further reported that although he feels like he is falling into a deeper state of depression, the birth of his son helped make him a happier person. He also reported that his memory and attention are poor. As examples of his poor memory, the Veteran clarified that he has trouble remembering appointments; driving to and from places, unless he maps out a route prior to leaving; remembering where he puts things (e.g. wallets, keys, etc.); and medication management. He further explained that he spends most of and many days looking for things he has misplaced, and if things are not written down on a list, he gets nothing accomplished because he cannot remember what he has to do. A June 2015 TBI clinic progress note reflects that the Veteran reported that everything was downhill; he cannot remember things, such as, for example, appointments, and his mother has to help with everything. He further indicated that overall, he is doing worse; his memory is a problem; and additionally, he complained of having problems with anger, road rage, panic attacks, and sleep impairment, to include nightmares. A September 2017 medical treatment note reflects that the Veteran currently suffers from severe anxiety and panic attacks; he fears crowds; he is unable to drive; he has horrible nightmares at night; and he even fears going to sleep until he eventually does when exhausted. An April 2018 social work note, which reflects PTSD symptoms, indicates that the Veteran’s mood was anxious; he was worried, irritable, and frustrated, with affect congruent with mood; he remained hypervigilant of his surroundings, and suspicious of others, feeling other people are looking at him, while out in public; easily startled; and fearful and non-trusting. A January 2020 psychiatry note indicated that the Veteran continued to manifest issues with being around crowds of people; and recurrent nightmares, with intermittent flashbacks from is combat experience. Additionally, and by happenstance, the Veteran’s mother submitted documentation, on behalf of the Veteran, for due process reasons, which is apparently reflective of a symptom that the Veteran was experiencing, thereby serving as the basis of the Veteran’s request. Specifically, in a November 2019 statement in support of claim, the Veteran’s mother, S.B., contacted VA, on behalf of the Veteran, to request that the Veteran’s appointment be re-scheduled because he was having “panic attacks and PTSD issues”, which caused him to react to locking himself in his bedroom for days. She further explained that the Veteran was unable to leave his room for 10 days, due to “horrible anxiety.” Despite these functional impairments, medical treatment records have also consistently noted that, on mental status evaluation, that the Veteran was well groomed; oriented to person, place, time, and situation; speech was normal in rate, volume, and productivity; his judgment was in intact; his thoughts were logical and goal directed, without evidence of thought disorder or delusion; there was no evidence of auditory/visual hallucinations; he was not a danger to himself or others; and no evidence of suicidal and/or homicidal ideation, despite having a prior history of suicidal ideation, prior to, and outside this appellate period. See June 2014 Social Work Note; see also August 2014 Progress Notes; see too, September 2017 Medical Treatment Record; see too, April 2018 Social Work Note; see too, January 2020 Psychiatry Note. Overall, for the period prior to August 20, 2020, the medical evidence of record reflects that the frequency, duration and severity of the Veteran’s psychiatric disabilities more closely approximate an occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking and/or mood, due to symptoms such as depressed mood; severe anxiety and panic attacks; suspiciousness; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment, including nightmares; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; hypervigilance; avoidance; irritability, with increased levels of anger; and significantly decreased participation in activities he once enjoyed. However, an increased rating, in excess of 70 percent, is not justified because the frequency, severity, and duration of the manifestations and symptoms typically associated with a 100 percent rating such as, gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to place or time; or a persistent danger of hurting self or others have not been shown. Although the Veteran reported having a previous history of suicide attempts/suicidal ideation, there was no evidence of suicidal ideation or homicidal ideation, at any time during this period of the appeal. Additionally, even though memory loss was reported at his videoconference hearing, and consistently noted in medical treatment records, which may be a symptom of PTSD, medical treatment records indicate that the Veteran also has traumatic brain injury. However, the medical evidence has not made it clear as to whether his manifestations of memory loss, to include forgetting names, directions, or recent events, is the result of his PTSD disability. As a matter of fact, one medical treatment note suggests that his memory loss may be attributable to his TBI. In this January 2020 psychiatry note suggests that the Veteran’s memory impairment may be related to his TBI, as this treatment note informs that the Veteran “had multiple traumatic brain injuries from Mortar Attacks and has some significant problems with his short-term memory. . .” Further, evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to place or time, and/or a persistent danger of hurting self or others, is not shown. As a matter of fact, and to the contrary, the medical evidence consistently reflected that the Veteran was oriented to person, place, time, and situation; his speech was normal in rate, volume, and productivity; his judgment was in intact; his thoughts were logical and goal directed, without evidence of thought disorder or delusion; medical examiners did not observe any evidence of auditory/visual hallucinations; and he did not pose as a danger to himself or others during this period of the appeal. Therefore, based on the foregoing reasons and bases, an increased, a 70 percent disability rating, but no higher, is warranted for the service-connected PTSD, for the period prior to August 12, 2020. B. Period Beginning August 12, 2020 As noted above, the Veteran has been assigned a 70 percent disability rating for the period beginning August 12, 2020. For this period of the appeal, the pertinent medical evidence only entails a VA examination that was afforded to the Veteran, to determine the current severity of his PTSD disability. This August 2020 VA examination report reflects that the level of occupational and social impairment on the Veteran’s PTSD is best summarized as an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. In this VA examination report, the VA examiner noted that the Veteran’s mother attended the examination and corroborated symptoms reported by the Veteran. The Veteran reported having an “up and downhill battle with his family”; he remarried in 2017, and has two children; his wife assists with everything, including reminding him to brush his teeth, bathe, and help calm him down. He also reported that his children do not live in the household with him due to his anger and unstable behavior, even though there was no abuse. He further stated that he talks to his family often, he has one friend, through his church, who he talks to on Zoom. The VA examination report notes that the Veteran had not had any arrests or legal problems since his last mental health examination, but that the Veteran reported that he is sometimes verbally aggressive and experiences road rage, unless he is listening to Christian music. He also reported that he had not consumed any alcohol in the 8 months prior to this examination, although prior to that time, he drank to the point of blacking out, and was told by others that he became physically aggressive. The VA examiner determined that the symptoms that are applicable to his diagnoses, include and are not limited to, depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short- and long-term memory, for example retention of only highly learned material, while forgetting to complete tasks; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; obsessional rituals which interfere with routine activities; an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place. On behavioral observation, the VA examiner observed and noted that the Veteran was oriented times 4; he was appropriately dressed and groomed; psychomotor behavior was hyperactive and agitated; eye contact was poor; speech was somewhat rapid; and thought processes were blocked at times. The VA examiner also observed that the Veteran had concentration difficulty; some memory impairment; and anxious mood with congruent and full affect. In summary, for the period beginning August 20, 2020, the medical evidence of record reflects that the frequency, duration and severity of the Veteran’s psychiatric disabilities more closely approximate an occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking and/or mood, due to symptoms such as depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; obsessional rituals which interfere with routine activities; an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place. An increased rating, in excess of 70 percent, is not warranted because the frequency, severity, and duration of the manifestations and symptoms typically associated with a 100 percent rating such as, gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to place or time; or a persistent danger of hurting self or others have not been shown. The Board acknowledges that the August 2020 VA examiner noted that the symptoms that are applicable to the Veteran’s diagnoses, include and are not limited to, mild memory loss, such as forgetting names, directions, or recent events; impairment of short- and long-term memory, for example retention of only highly learned material, while forgetting to complete tasks; and disorientation to time or place. However, the August 2020 VA examiner also noted that the Veteran’s medical diagnosis of TBI is relevant to the understanding or management of the mental health disorder; that the Veteran had more than one mental disorder diagnosed; and that it is not possible to differentiate what symptoms are attributable to each diagnosis. In pertinent part, the VA examiner reasoned that symptoms and resulting impairments of PTSD and neurocognitive disorder overlap, and that she could not determine their individual impact. Thus, this August 2020 VA examination report has not provided any further expressed, clarification as to whether the Veteran’s symptoms of mild memory loss, impairment of short-and-long term memory, and disorientation to time or place are attributable to his PTSD symptoms alone. The Veteran is separately service-connected for residuals of a traumatic brain injury. Even assuming the symptoms noted in this examination are attributable to the service-connected PTSD, as discussed herein, the criteria for a 100 percent schedular rating are not met. Moreover, evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, and/or a persistent danger of hurting self or others, is not shown. As a matter of fact, the medical evidence shows that the Veteran was oriented to person, place, time, and situation; and he was appropriately dressed and groom. Additionally, the probative evidence has not shown any arrests or legal problems, despite verbally aggressive behavior and road rage, the VA examiner did not determine that he poses as a danger to himself or others. Additionally, delusions or hallucinations were not noted and/or observed on examination, nor were manifestations of grossly inappropriate behavior. Accordingly, these factors, as examples, do not show that the severity of the Veteran’s PTSD is approximated by a total occupational and social impairment. Therefore, based on the foregoing reasons and bases, an increased rating, in excess of 70 percent, is not warranted for the service-connected PTSD, for the period beginning August 12, 2020. 2. Lumbar Spine Disability The Veteran asserts entitlement to a higher rating for his service-connected lumbar spine disability. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 – 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran has been assigned a 20 percent disability rating for degenerative disc disease, status post lumbar fusion, under DC 5242. 38 C.F.R. § 4.71(a), DC 5242. The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, DCs 5235-5243. The evaluation of IVDS will be discussed below. See 38 C.F.R. § 4.71a, DCs 5235-5243. Under DC 5242, A 40 percent rating is assigned 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 assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. The above criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. In this regard, the criteria “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51, 454, 51, 455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id. at Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under DC 5243, the rating criteria for intervertebral disc syndrome based on incapacitating episodes, a 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). At his videoconference hearing, the Veteran testified that the pain level for his back has worsened. He explained that he is unable to bend forward without being pain; he is unable to lay down for long; and that he is afraid to lay down for too long a period of time when he is in pain. He also indicated that his back is painful at the very top of his back, where he now has a new bulge. He clarified that he underwent an MRI, which indicated that his L-3 “bulged up”, above his lumbar fusion. Additionally, the Veteran indicated that he is unable to stand or sit for long periods of time. See June 209 Videoconference Hearing Transcript. In an August 2009 buddy statement, the Veteran’s mother, S.B., testified, in pertinent part, that when the Veteran attempts to help in the yard, or doing anything that requires up and down movement, it takes him days to recover, and that he uses ice packs and heating pads, and takes hot showers and over the counter medications to treat his pain. In August 2009, the Veteran was afforded a general medical VA examination. This VA examination report reflects that the Veteran “admits to approximately two months of prescribed bed rest or period of incapacitation over the course of [the prior twelve months before this VA examination] for his low back condition.” He also reported that he has had continuing, ongoing, back pain since his lumbar spine fusion surgery in August 2008. Additionally, he reported that he has had continuing, ongoing back pain, since his lumbar fusion surgery in August 2008. He complained having daily back pain, with sitting for 30 to 40 minutes, and standing for two hours; weakness; stiffness; and lack of endurance. Further, the Veteran stated that he is unable to do any significant bending or lifting due to his lower back; he described the pain as 6 out of 10, on a regular basis; and that the pain in the lower back radiates to his right upper thigh. He also reported having flare-ups of worsening pain, which he described as 9 out of 10, with any increased activity. On assessment of the lumbar spine, the VA examiner noted that the Veteran did not have any heat, swelling, or erythema; no muscle spasms; and/or no CVA tenderness or atrophy at the time of this examination. On range of motion testing, forward flexion of the lumbar spine was limited at 50 degrees; extension was at 10 degrees; left lateral flexion was at 15 degrees; right lateral flexion was 20 degrees; and left and right lateral rotation were at 20 degrees. Pain with all motions was noted on examination, although there was no additional limitation of motion. The VA examiner noted that loss of function due to flare ups could not be noted on examination, without resorting to mere speculation. However, a July 2020 VA examination report captures a more through, complete, comprehensive assessment of the current severity of the Veteran’s lumbar spine disability. This VA examination report reflects that the Veteran is diagnosed with intervertebral disc syndrome (IVDS) of the lumbar spine. The VA examination report notes that the Veteran reported having flare-ups of the lumbar spine. Describing the nature of his flare-ups, the Veteran explained that he has excruciating pain at times, which are often rated at a 10, on a scale of one to 10, in severity; if he sits for extended periods of time, he must reposition, using a pillow under his back; he feels like he has to constantly reposition himself, in order to avoid pain; and he has to avoid specific activity. With respect to frequency, he explained that the flare ups are intermittent, daily; he rated the severity of his flare ups at a 10, on a scale of 1 – 10; and he stated that the duration of his flare ups lasted for one to two hours, depending on him stopping the current activity he is engaged in. He also reported having functional loss or functional impairment of the lumbar spine, which he described as impacting various activities of daily living, putting on clothing, shoes, shower, going to the grocery store, and playing with kids. On initial testing for range of motion, forward flexion of the lumbar spine was at 40 degrees; extension of the lumbar spine was at 10 degrees; right and left lateral flexion were both at 10 degrees; and right and left lateral rotation were both at 20 degrees. Pain was noted on examination, as well as objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, specifically located in the lumbar spine. The severity of the pain was rated at a 10 out 10. On examination, the Veteran was unable to perform repetitive-use testing with at least three rotations due to fear of pain. Nonetheless, he was examined immediately after repetitive use over time, and the VA examiner indicated that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, due to factors, such as pain and weakness, which cause this functional loss. Although the VA examination was not being conducted during a flare up, the VA examiner determined that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, and that the factors that cause this functional loss, include pain and weakness. Additionally, despite the Veteran’s diagnosis of IVDS the VA examination report notes that the Veteran does not have any acute signs and symptoms that are due to IVDS that require bed rest, prescribed by a physician and treatment by a physician with the previous 12 months from this August 2020 VA examination. The medical evidence also entails private and VA medical treatment records, which provide additional details about the symptoms, manifestations, and severity of the Veteran’s lumbar disability. Specifically, for example, a September 2014 primary care note reflects manifestations of chronic lumbar pain, as well as decreased lumbar flexion, on assessment of the musculoskeletal system. In a June 2015 Disability Determination Service Evaluation, a private orthopedist, Dr. A.J.F., noted that the Veteran underwent an MRI, and he was told that he had the back of an 80 year-old person and recommended lumbar fusion. Dr. A.J.F. also noted that post lumbar fusion, the pain in his lumbar spine returned, radiating down his right leg, sometimes manifesting weakness; and that the pain is constant and increases with prolonged activities. On physical examination of the lumbar spine, forward flexion was at 30 degrees; extension was at 5 degrees; and left and right lateral flexion were 10 degrees. Additionally, a well-healed scar was also noted. A July 2020 primary care telephone encounter note reflects that the Veteran reported that he was still having pain in his back, which is worse with standing. In summary, and based on an overall review of all pertinent evidence, the Board finds that an increased rating, in excess of 20 percent, is warranted for the service-connected lumbar spine disability. As noted above, medical treatment records reflect that forward flexion of the lumbar spine was at the least, limited to 30 degrees. Further, the medical evidence suggests that the severity of the Veteran’s lumbar spine worsened with time, and that at his most recent examination in August 2020, he reported having flare ups and functional loss/functional impairment of the lumbar spine, rating the severity of pain at a 10, out a scale from 1 – 10, compared to his August 2009 examination, when he rated the severity of his pain at 6, on a scale of 1 - 10. Additionally, this August 2020 VA examination reflects that pain, weakness, fatigability or incoordination significantly limit functional ability with repetitive use and flare-ups, and that a factor that causes this functional loss, other than pain, is weakness. Thus, as the overall evidence suggests that limitation of forward flexion of the Veteran’s lumbar spine is approximated by 30 degrees, an increased rating of 40 percent is warranted, under DC 5242. The Board has considered whether an even higher rating, under DC 5243, for IVDS, based on incapacitating episodes, is warranted for the lumbar spine disability. However, the medical evidence has not shown that the Veteran has had incapacitating episodes of the intervertebral disc syndrome, with a duration of at least six weeks during the past 12 months, and/or specifically, that required bed rest and treatment that has been prescribed by a physician. Thus, an even higher, 60 percent rating disability is not justified for the service-connected lumbar spine disability, under DC 5243. Although the Veteran reported that he had approximately two months of prescribed bed rest or period of incapacitation over the course of the prior 12 months, at his August 2009 VA examination, the evidence has not reflected such, by way of a medical treatment record or physician’s note. Furthermore, in considering whether separate, additional ratings are available for the Veteran’s lumbar spine disability, the General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In this regard, the Veteran has already been service-connected for bilateral radiculopathy, associated with the service-connected lumbar spine disability. Additionally, he has also been service-connected for his associated, status post lumbar fusion scar. However, no other neurologic abnormalities and or/any other associated lumbar spine conditions have been noted. Thus, no separate, additional ratings, due to the Veteran’s service-connected lumbar spine disability, are available. Notwithstanding, and based on the foregoing reasons and bases, an increased, 40 percent disability rating for the service-connected lumbar spine disability is granted. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2018). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2018). TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). The Veteran is service-connected for PTSD, at 70 percent disability rating; traumatic brain injury, at a 40 percent disability rating; degenerative disc disease, status post lumbar fusion, at a 40 percent disability rating; right radiculopathy associated with degenerative disc disease, status post lumbar fusion, at a 20 percent disability rating; left radiculopathy associated with degenerative disc disease, status post lumbar fusion, at a 20 percent disability rating; tinnitus, at a 10 percent disability rating; status post lumbar fusion scar, at a zero percent, non-compensable rating; and headaches with nausea and dizziness, associated with traumatic brain injury, at a zero percent, non-compensable rating. Summarily, and based on his service-connected disabilities, the Veteran has a combined disability rating of 90 percent, inclusive of the bilateral factor, and thus, meets the minimum percentage criteria for a TDIU. 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Nonetheless, the central inquiry is whether the Veteran’s service-connected disabilities alone are of enough severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not sufficient. As a matter of fact, a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, and not whether he or she can find employment. Hoose v. Brown, 4 Vet. App. 361 (1993). The United State Court of Appeals for Veterans Claims (Court) held that “[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to”: (1) The veteran's history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). However, consideration cannot be given to the Veteran’s age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Additionally, “[by] discussing [the] potentially relevant factors, we don’t create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it.” Ray, 31 Vet. App. at 58. The Veteran asserts that he is unable to secure or follow substantially gainful employment as a result of his service-connected PTSD and lumbar spine disabilities. See August 2014 Application for Increased Compensation Based on Unemployability (TDIU Application); see also October 2020 Appellate Brief. At his June 2019 videoconference hearing, he testified that he tried to work in 2011, but that he has not been able to work a full-time job since his separation from service in the Army. The Veteran reported that he became too disabled to work in 2011, although his TDIU application indicates that his last full-time job was with the United States Army in May 2009. He noted that he attempted to obtain employment in 2011 with a car detailer; the highest level of education he completed was four years of high school; and that he did not obtain any other education or training before he became too disabled to work. See August 2014 TDIU Application. In an August 2009 buddy statement, the Veteran’s mother, S.B., testified that when he tries to help in the yard or do anything requiring up and down movement, it takes him days to recover, using ice packs and heating pads, and takes hot showers and over the counter medication to treat his pain medication, which only leads to more depression and despair. She further explained that his sleep is often accompanied by nightmares and night sweats, and that there is no way he can work at this time, due to his condition. The probative evidence appears to provide conflicting dates about the last time the Veteran worked, although the last time he worked full-time is discernable. For example, while a September 2009 preventive medicine note indicates that the Veteran had been employed for less than a year, from that date, a January 2014 mental health nurse practitioner’s note indicates that the Veteran reported that he had lost 12 – 13 jobs from the previous year because he had not been able to sleep or he had too much anxiety from being around people. However, in an August 2014 statement in support of claim, the Veteran further clarified that he “truly tried to get a job and keep it but due to [his] lower back pain and [his] PTSD” he was unable to do it for six years. He further stated that he tried other things, but failed because his lumbar fusion was painful all the time and his PTSD kept him from being able to be around people. A June 2015 disability determination service evaluation report reflects that the last time the Veteran worked was in 2012, in car sales, and that previous employment history/work experience included painting, flooring, and car sales. Nonetheless, the Board notes that these conflicting accounts do not necessarily make the credibility of the Veteran’s reports and statements questionable, as the evidence has repeatedly and consistently shown that the Veteran has memory impairment, including short and long term memory loss. See e.g. June 2019 Videoconference Hearing Transcript; see too August 2020 VA Examination Report for PTSD. Notwithstanding, a July 2014 disability report from the Veteran’s Social Security Administration Records which notes that the Veteran’s last full-time employment was in July 2011, and that he worked in a car dealership/undertaking multiple jobs, is consistent with the June 2015 disability determination service evaluation report, as well as other statements, of record, from the Veteran. Thus, it is most likely that the last time the Veteran worked full-time was in 2011. In an August 2014 treatment note, the Veteran’s treating physician, Dr. Ewing, opined that the Veteran is currently unemployable and “quite unlikely to [tolerate] the interpersonal demands of the workplace.” However, this opinion is inadequate for purposes of assessing the Veteran’s employability, as it is not supported by a rationale. Thus, the Board has not afforded this opinion any probative value, in the determination of this claim. In the June 2015 disability determination service evaluation report, a physician, Dr. A.J.F., noted that the Veteran is physically limited to approximately 20 pounds of lifting; occasional bending; stooping; and pushing; and that kneeling, crawling, climbing and working on unprotected heights is prohibited. While Dr. A.J.F. stated that he feels that the Veteran “is able to walk through a normal day”, he does not expressly opine whether the Veteran’s lumbar spine disability renders him unemployable, nor does his assessment contemplate the Veteran’s PTSD or TBI disability. A July 2020 VA examination report for the lumbar spine notes that the Veteran’s lumbar spine disability impacts his ability to work. Particularly, the VA examiner explained that the Veteran has degenerative disc disease, IVDS, and radiculopathy; and according to the Veteran, these conditions parallel one another in their symptomatology and the impact of the Veteran’s ability to work, including lifting objects that greatly inhibited the Veteran, over time, with various jobs; and standing for long periods of time, which is unobtainable. Although an August 2020 VA examination report for PTSD does not expressly indicate whether the Veteran’s PTSD impacts his ability to work, this VA examination report does note, in pertinent part, that the Veteran made several attempts to work in 2010, to include doing work with car sales, flooring work, and painting; the Veteran reported that he could not be around people; and he had difficulty with remembering his tasks. Additionally, the VA examination report notes that symptoms that are applicable to the Veteran’s mental diagnoses, include and are not limited to, mild memory loss, such as forgetting names directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time or place. In assessing the Veteran’s employability, the Board notes that the Court has defined “substantially gainful employment” as encompassing both an economic and a noneconomic component. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” whereas the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray, 31 Vet. App. at 58. As noted above, the Court set forth a number of factors to consider, with respect to the noneconomic component, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. In this matter, the economic component has not been met for the duration of the appeal period, as the Veteran stopped working full-time around July 2011. With respect to the noneconomic component, the highest level of education, which the Veteran has completed is four years of high school, and his work experience is limited to car sales, flooring work, and painting. However, the severe impairments of his PTSD and lumbar spine disability, make it virtually impossible for him to render any type of employment, given the functional limitations of disabilities, including and not limited to his inability to bend, stoop, and sit and stand for extended periods of time. Crucially, the Veteran’s PTSD symptom, memory loss/memory impairment, for example, makes him incapable of learning and/or retaining information in any job capacity. Therefore, the Board finds that the Veteran is unable to secure and/or maintain substantial gainful employment, as a result of his service-connected disabilities, including his PTSD and lumbar spine disabilities. Therefore, entitlement to a TDIU is granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.