Citation Nr: 21011256 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-31 501A DATE: March 1, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for PTSD is denied. Entitlement to an evaluation in excess of 20 percent for a lumbar back disability (previously rated as a lumbar strain and now rated as interval disc syndrome) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD is manifested with symptoms resulting in occupational and social impairment with occasional decreases 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 symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often) chronic sleep impairment, and mild memory loss. 2. For the entire period on appeal, the Veteran’s lumbar spine disability has not been manifested by unfavorable ankylosis of the thoracolumbar spine, unfavorable ankylosis of the entire spine, favorable ankylosis of the entire spine, forward flexion of the thoracolumbar spine to 30 degrees or less, incapacitating episodes requiring bedrest prescribed by a physician for a total duration of 4 weeks or greater. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD), since January 24, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 20 percent since January 24, 2011 for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a; DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from October 2001 to November 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018 the Board remanded these claims for development including a new VA examination. The Veteran was afforded VA examinations in November 2019. Then in September 2020 a rating decision was issued that increased the Veteran’s rating for his lumbar back disability to 20 percent effective January 24, 2011. The rating decision also granted the Veteran a 10 percent rating for left lower extremity radiculopathy effective January 14, 2011. See Rating Decision-Narrative dated September 2020. In September 2020, a Supplemental Statement of the Case (SSOC) was also issued and the claims were both returned to the Board. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased rating for PTSD is denied The Veteran’s PTSD is currently rated at 30 percent under Diagnostic Code 9411, 38 C.F.R. § 4.130. The Veteran contends that he is entitled to an increased rating for PTSD. In August 2012, the Veteran reported that he had ongoing difficulty with sleep. He stated that he woke up every three to four hours during the night. He had trouble in his marriage. He reported feeling no emotions, at times, unless he was angry. He also reported waking up in the morning and feeling upset or depressed. He was uncomfortable in crowds and he reported that he had panic attacks. The Veteran reported that he had issues with his work. He explained that he had started to take medications for sleep and depression so he could function on a daily basis. He reported missed work for medical treatments and due to depression, lack of sleep, fatigue, and nervousness. See VA 21-4138 received August 2012. In January 2015, the Veteran felt his rating decision for PTSD at 30 percent was unfair. He explained that while he worked steadily, his employer was understanding and had prior military service. The Veteran reported that he avoided people so he would not get upset. He also reported being afraid at times to leave his family to go to work. See Form 9 received January 2015. A 10 percent rating is warranted when there is 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. 38 C.F.R. § 4.130. 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). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 rating is warranted when 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 an inability to establish and maintain effective relationships. Id. 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; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). While the Veteran contends that he should be granted a rating higher than 30 percent for his symptoms of PTSD, the Veteran’s symptoms are generally consistent with the current rating of 30 percent. For example, in November 2019, the Veteran had a VA examination for PTSD. See C&P Exam received November 2019. The Veteran reported that he avoided crowds and was bothered by loud noises. He reported that he was divorced in 2013, and then he remarried in December 2013. Despite a divorce and trouble in crowds, the Veteran reported he had a very supportive wife. He also had positive relationships with his mother and sister, and he was in contact with all his children. Id. The Veteran also reported having some friendships or other relations. He had friends from the military and had spent time with some of his cousins recently at a UNC football game. Id. As for his occupation, the Veteran explained that for the last year he had worked for a company building submarines. Before that he worked for Universal Hospital Services for nine years. Id. The November 2019 VA examiner stated that the Veteran still met the criteria for PTSD. The Veteran’s symptoms primarily included depressed moods, anxiety, chronic sleep impairment, recurrent memories, recurrent dreams, hypervigilance, and exaggerated startle reflexes. See C&P Exam received November 2019. During the examination, the Veteran was cooperative, logical, oriented in all spheres, and appropriately groomed. The Veteran denied suicidal or homicidal intentions. Id. The VA examiner opined that the Veteran’s symptoms were generally consistent with decreases in work efficiency and intermittent periods of inability to perform occupational tasks, consistent with a 30 percent rating for PTSD. Id. The Board takes note that in February 2017, the Veteran had involvement with the justice system and was detained at the County Jail. The Veteran reported being triggered by an officer who arrested him and that he openly confronted the officer. See CAPRI received February 2019. Records suggested that the Veteran was experiencing worsening symptoms of PTSD around this time. The Veteran also had some passive suicidal ideation amid his legal challenges and lost his job in September 2017 as a result of the legal issues involved. Id. However, the Board also noted that the Veteran was started on the medications Sertraline and therapy at this time. He engaged more with his treatment. His provider expressed some concern for the Veteran having an elevated suicidal risk during this time period. However, the records and the recent VA examination show that the Veteran was able to obtain a new job. The Veteran also generally reported no intent of self-harm apart from one incident of passive suicidal ideation. See CAPRI received February 2019 and September 2020. The Veteran has been prescribed some different medications over time and has accessed other services like therapy, at times. For example, in May 2015, the Veteran discontinued psychotropic medications. See CAPRI received February 2019. However, in February 2017, the Veteran began new psychotropic medications and engaged with therapy. Id. And more recently, in January 2020, the Veteran reported his medication being beneficial. The Veteran’s mood was reported to be good and he was being transitioned back to primary care for his mental health treatment. See CAPRI received September 2020. While the records suggested that the Veteran had some intermittent periods of increased symptoms of PTSD, the Veteran was generally able to maintain his social relationships. He was married and had relationships with friends and family. See C&P Exam received November 2019. The Veteran reported losing his job due to involvement with the justice system in February 2017. However, he regained employment. The Veteran noted at the November 2019 VA examination, that he had worked for a year for a company building submarines and he worked for nine years at Universal Hospital Services. Id. Considering the overall evidence, the Veteran does not meet the criteria for a 50 percent level of impairment for PTSD. Generally, he does not have notable difficulty in establishing and maintaining effective work and social relationships. The Veteran does not have occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; and disturbances of motivation and mood. The evidence of record shows that the Veteran’s PTSD caused symptoms such as chronic sleep impairment, anxiety, depression, hypervigilance, and exaggerated startle reflexes. The Veteran also reported that he had panic attacks and did not like crowds. However, the Veteran’s treatment records do not support that he had panic attacks occurring often. The Veteran’s symptoms generally do not rise to the level of those contemplated in the 50 percent evaluation or higher. The Board acknowledges the Veteran believes that his PTSD is entitled to a higher evaluation than 30 percent. Although the Veteran is competent to provide lay statements to establish the occurrence of medical symptoms, he is not medically qualified to prove a matter requiring medical expertise. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The severity of this condition is a medical, not lay, determination, and outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The more reliable, competent medical evidence of record indicates that the Veteran’s PTSD manifests with decreases in work efficiency and intermittent periods of inability to perform occupational tasks, consistent with a 30 percent rating for PTSD. Although the Veteran may believe his PTSD is more severe than the 30 percent evaluation assigned, the medical evidence of record does not support this assertion. As such, the probative evidence of record fails to show that the Veteran’s PTSD warranted a rating in excess of 30 percent. With the preponderance of the probative evidence of record weighing against the claim, the benefit of the doubt rule need not be applied. See 38 U.S.C. § 5107(b). Although grateful for the Veteran’s service, the claim of entitlement to an increased evaluation for PTSD must be denied. 2. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability is denied The Veteran has contended that he is entitled to an increased evaluation for his lumbar spine disability. He reported that he had pain stiffness, tingling, weakness, and muscle spasms. He reported that he sometimes limps due to pain. He also reported that he had to change positions due to pain with prolonged standing, walking, or lying down. See VA 21-4138, Statement in Support of Claim, received January 2020. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula), under DCs 5235 to 5243. 38 C.F.R. § 4.71a. Both the DC for Invertebral Disc Syndrome and the General Rating Formula are to be considered by the Board, and the DC that results in the higher evaluation for the Veteran is to be used. See 38 C.F.R. § 4.71(a); DCs 5235 to 5243, Note (6). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See Note (2) for General Rating Formula, 38 C.F.R. § 4.71a. Additionally, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. See Note (3) for General Rating Formula, 38 C.F.R. § 4.71a. In this case, the Veteran’s lumbar spine disability (Lumbosacral strain with disc extrusion at L5 to S1) is rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5243 since January 24, 2011. The Board noted that the Veteran’s rating was increased from 10 percent to 20 percent, as noted above, by a rating decision which was issued in September 2020. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 40 percent rating for the thoracolumbar spine 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 evaluation 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. These ratings apply to diseases and injuries of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The Board has reviewed all of the evidence of record, including the VA examination reports, treatment records, and the Veteran’s lay statements. After a thorough review of the evidence of record in this matter, the Board finds that an evaluation in excess of 20 percent disabling since January 24, 2011 is not warranted. In March 2011, the Veteran had a VA examination. The Veteran was receiving physical therapy. He reported trouble walking upstairs, and trouble getting in and out of his truck. He also had difficulty sitting down and standing. See VA Examination received March 2011. The March 2011 VA examiner reported that the Veteran’s initial range of motion of his thoracolumbar spine was zero to 90 degrees forward flexion, zero to 30 degrees extension, zero to 45 degrees right lateral flexion, zero to 45 degrees left lateral flexion, zero to 30 degrees right lateral rotation, and zero to 30 degrees left lateral flexion. Id. The Veteran had no ankylosis, no muscle spasms, and no muscle atrophy noted. Id. The Veteran had full strength, normal sensation, and normal reflexes. Id. Imaging of the Veteran’s spine documented mild retrolisthesis of L5 to S1, as well as mild central disc extrusion at L5 to S1 with mild caudal migration. The Veteran had no canal stenosis and no foraminal stenosis. See VA Examination received March 2011. In November 2019, the Veteran had a VA examination. The Veteran reported constant lower back pain, and intermittent left leg pain with numbness. He reported that he had difficulty bending, pulling, pushing, lifting, and sitting. See C&P Exam received November 2019. On examination, the Veteran’s initial range of motion of his thoracolumbar spine was zero to 50 degrees forward flexion, zero to 10 degrees extension, zero to 15 degrees right lateral flexion, zero to 15 degrees left lateral flexion, zero to 15 degrees right lateral rotation, and zero to 15 degrees left lateral flexion. The Veteran had pain on weight bearing and with range of motion in the thoracolumbar spine. Id. However, the Veteran was able to perform three repetitive motions with no additional loss of function. Id. The November 2019 VA examiner stated that for the Veteran’s flare-ups did not cause the Veteran to have further functional limitations to the range of motion in his thoracolumbar spine. See C&P Exam received November 2019. The Veteran was reported to have muscle spasms in his spine, but normal strength. The Veteran had no muscle atrophy, normal reflexes in the lower extremities, and normal sensation in the lower extremities. Id. The VA examiner found that the Veteran had mild radiculopathy of the left lower extremity based on moderate intermittent pain and numbness in the left lower extremity. Id. In January 2020, the Veteran submitted an independent expert rating evaluation regarding his lumbar spine. The nurse practitioner opined that the Veteran should be eligible for a 20 percent rating due to muscle spasms severe enough to cause abnormal gait, or abnormal spinal contour. The nurse practitioner referenced VA treatment records from December 2014, included some records with his report, and discussed lay statements. See VA Examination received January 2020. The Board notes that the Veteran has already been granted an increase to 20 percent for lumbar spine, consistent with the independent expert rating evaluation submitted by the Veteran. See Rating Decision – Narrative received September 2020. In August 2020, a VA examiner noted that the Veteran had MRI imaging from August 2007 that showed disc degeneration. The Veteran’s condition was originally rated as a lumbar strain; however, the condition should have been noted as degenerative disc disease. The examiner explained that the Veteran’s radiculopathy or degenerative arthritis was a progression of the Veteran’s disc extrusion and lumbar strain. See C&P Exam received August 2020. Considering all the evidence, the Board finds that the Veteran has been given the highest possible rating for the lumbar spine disability from the date of claim. The evidence does not support that the Veteran was limited to less than 30 degrees of forward flexion of the thoracolumbar spine at any time. See VA Examination received March 2011 and January 2020; See C&P Exam received November 2019 and August 2020. The Veteran’s lumbar spine disability did not manifest in favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes requiring bedrest prescribed by a physician due to the back for a total duration of four weeks or greater as contemplated by DC 5243. To the extent lay statements were provided, the Board did thoroughly consider the statements of the Veteran, including the statements he provided about pain with prolonged standing or walking. However, the Board notes that the examinations discussed above did not report the Veteran required any assistive devices for ambulation. Even so, the criteria for a rating at 20 percent takes into account abnormal gait and abnormal spinal contour. Furthermore, in the September 2020 rating decision, a separate rating of 10 percent was granted for radiculopathy in the left lower extremity under DC 8520. See Rating Decision-Narrative received September 2020. The Board does not find any other relevant Diagnostic Codes, which would be applicable to the Veteran’s lumbar spine disability at this time. As a preponderance of the probative, credible evidence of record weighs against a finding of a rating in excess of 20 percent for the Veteran’s back disability under DC 5243, the benefit of the doubt doctrine does not apply, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.