Citation Nr: 21013980
Decision Date: 03/11/21	Archive Date: 03/11/21

DOCKET NO. 10-10 408
DATE: March 11, 2021

ORDER

Entitlement to an initial rating in excess of 20 percent disabling for service-connected degenerative joint disease of the lumbar spine, with intervertebral disc syndrome (IVDS) (claimed as degenerative disc, vertebrae) is denied.

Entitlement to an initial rating in excess of 50 percent disabling prior to January 15, 2015, for service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder, is denied. 

Entitlement to an initial rating of 70 percent disabling, but no higher, beginning January 15, 2015 to February 17, 2020, for service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder, is granted.

Entitlement to an initial rating in excess of 20 percent disabling for service-connected radiculopathy of the right lower extremity is denied. 

Entitlement to an initial rating in excess of 20 percent disabling for service-connected radiculopathy of the left lower extremity is denied. 

Entitlement to an effective date prior to October 9, 2008, for the award of service connection for degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae) is denied. 

Entitlement to an effective date prior to October 9, 2008, for the award of service connection for radiculopathy of the right lower extremity is denied.

Entitlement to an effective date prior to October 9, 2008, for the award of service connection for radiculopathy of the left lower extremity is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. 

FINDINGS OF FACT

1. The Veteran’s degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae) has manifested with painful motion and corresponding functional impairment, and more nearly approximate limitation of flexion of greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; without more severe manifestations; there is no evidence of ankylosis or incapacitating episodes having a total duration of 4 weeks or more during the past 12 months.. 

2.  For the period prior to January 15, 2015, the Veteran’s service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder was manifested by occupational and social impairment with reduced reliability and productivity as a result of psychiatric symptomatology, to include difficulty sleeping, depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting; however, the frequency, duration, and severity of such symptomatology have not produced more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.

3.  For the period January 15, 2015 to February 17, 2020, the Veteran’s service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder was manifested by occupational and social impairment with deficiencies in most areas as a result of psychiatric symptomatology to include suicidal and homicidal ideation, depression, isolation, avoidance of crowds, impaired impulse control, irritability and sleep disturbance; however, the frequency, duration, and severity of such symptomatology have not produced more severe manifestations that more nearly approximate total occupational and social impairment.

4.  The Veteran’s right lower extremity radiculopathy was characterized by moderate incomplete paralysis of the sciatic nerve; moderately severe and severe incomplete paralysis were not shown. 

5.  The Veteran’s left lower extremity radiculopathy was characterized by moderate incomplete paralysis of the sciatic nerve; moderately severe and severe incomplete paralysis were not shown.

6.  In October 2008 the Veteran filed a claim for service-connection, in pertinent part, for a low back disability (claimed as degenerative disk, vertebrae).  

7.  In an April 2018 Board decision, the Veteran was granted service connection for a back disability. 

8. In an August 2018 rating decision, the RO implemented the Board decision and granted service connection for degenerative joint disease, lumbar spine with intervertebral disc syndrome (claimed as degenerative disc, vertebrae), as well as bilateral lower extremity radiculopathy all effective October 9, 2008. 

9.  The Veteran did not file a claim for entitlement to service connection for a low back disability or radiculopathy, or a claim that can be reasonably construed as a claim for service connection for such, prior to October 9, 2008.

10.  Resolving all doubt in the Veteran’s favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation

CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 20 percent disabling for service-connected degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

2.  The criteria for an initial rating in excess of 50 percent disabling prior to January 15, 2015, for service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Codes 9434-9413.

3.  The criteria for an initial 70 percent rating, but no higher, for the period January 15, 2015 to February 17, 2020, for service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Codes 9434-9413.

4.  The criteria for an initial rating in excess of 20 percent disabling for right lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8520.

5.  The criteria for an initial rating in excess of 20 percent disabling for left lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8520.

6.  The criteria for an effective date prior to October 9, 2008 for the award of service connection for degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae) have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

7.  The criteria for an effective date prior to October 9, 2008 for the award of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

8.  The criteria for an effective date prior to October 9, 2008 for the award of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

9.  The criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1977 to December 19777 and from February 1981 to July 1982. 

In November 2020 the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing.  A transcript of the hearing is of record. 

The Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record.  In statements in September 2018 as well as at the Veteran’s Board hearing, the Veteran’s unemployability was raised.  In light of the Court’s holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claims and has accordingly listed the raised TDIU claim as an issue on appeal.  Furthermore, the Board notes that the RO has deferred adjudication of the Veteran’s claim for a TDIU in an August 2018 rating decision, however as previously noted the Board has considered such claim as part of the Veteran’s pending claims for increased ratings and therefore the Board has jurisdiction over it and it is on appeal.

The Board notes that in an April 2020 rating decision, the RO granted the Veteran a 100 percent rating for his service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder, effective February 17, 2020.  While the prior periods remain on appeal as higher ratings are still possible, the period beginning February 17, 2020 is no longer on appeal as the Veteran is in receipt of the statutory maximum rating and neither he nor his representative have indicated that extraschedular consideration is warranted.  

Furthermore, the Board notes that in addition to the claims listed on the front page of this decision, the Veteran also appealed the effective date of the award of service connection for his service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder.  However, in July 2020 the Veteran submitted a VA Form 10182 notice of disagreement.  The Veteran disagreed with, in pertinent part, the effective date of his service-connected mental health disability, and elected to pursue a hearing through the Appeals Modernization Act (AMA).  As such, the Veteran’s claim will be covered in a separate decision.  

Finally, the Veteran has also been pursuing claims for service connection for hearing loss and bronchitis. The Board notes that such were covered at not only the November 2020 hearing but during a prior hearing in May 2017 before a different Veterans Law Judge.  Therefore, such will also be covered in a separate decision. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3. 

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances.  38 C.F.R. § 4.21.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability.  38 C.F.R. § 4.14.  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.”  Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.”  Id., quoting 38 C.F.R. § 4.40. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  If the preponderance of the evidence is against the claim, the claim is to be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Entitlement to an initial rating of 20 percent disabling for service-connected degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae) is denied.

The Veteran contends that the severity of his degenerative joint disease of the lumbar spine, with IVDS warrants a higher rating.  As the Veteran’s claim was an appeal of the initial grant of service connection and assignment of the initial rating, the Veteran’s entire history is under consideration. 

The Veteran’s service-connected degenerative joint disease of the lumbar spine, with IVDS is rated as 20 percent disabling under Diagnostic Code 5242 for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, which is evaluated under the General Rating Formula for Rating Diseases and Injuries of the Spine.  

Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine was greater than 235 degrees or that muscle spasms or guarding not resulting in an abnormal gait or abnormal spinal contour.  A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees or that muscle spasms or guarding were 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 if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

The criteria also include the following provisions: 

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  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.  The 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note (3): 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. 

Note (4): Round each range of motion measurement to the nearest five degrees. 

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician.  An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.

The Veteran’s post-service treatment records reflect the Veteran’s reports of back pain and bilateral lower leg numbness and weakness.  Xray and MRI evidence noted degenerative changes as well as disc space narrowing and bulging/herniated discs.  However, the Veteran routinely denied any acute bowel or bladder dysfunction. 

In July 2014 the Veteran underwent a VA Back Conditions examination with an accompanying disability benefits questionnaire (DBQ).  The examiner noted that the Veteran suffered from degenerative arthritis of the spine and IVDS. The examiner noted that no bedrest had ever been prescribed as a treatment by a physician.  Upon examination, the examiner noted that the Veteran’s range of motion was flexion 0 to 45 degrees, extension 0 to 20 degrees, right and left lateral flexion 0 to 15 degrees, right and left rotation 0 to 30 degrees.  The examiner noted that flare-ups impacted the function of the Veteran’s spine, however there was no change in the Veteran’s range of motion with flare-ups.  In addition, the examiner noted that the Veteran was able to complete repetitive use testing and again there was no change in the Veteran’s range of motion.  The examiner did note functional loss and or functional impairment due to less movement than normal, weakened movement, excess fatiguability, incoordination, pain on movement, disturbance of locomotion, interference with sitting, standing and/or weight bearing and lack of endurance.  The examiner noted localized tenderness or pain to palpation, but no muscle spasms resulting in abnormal gait or abnormal spinal contour and no guarding.  Muscle strength and sensory testing was mostly normal and reflex testing was hypoactive.  The examiner noted radicular pain or other signs of radiculopathy, specifically severe numbness in the right lower extremity.  However, the examiner also noted that the Veteran’s bilateral lower extremities were not affected by radiculopathy.  The examiner found no evidence of ankylosis or other neurological abnormalities.  Finally, the examiner did note that the Veteran had IVDS and the Veteran reported incapacitating episodes, specifically having a total duration of at least six weeks during the past 12 months. 

In June 2017 the Veteran underwent a private evaluation. The examiner noted a review of the Veteran’s service and post-service treatment records, and opined that the Veteran’s back disability was causally related to his military service. Furthermore, the examiner stated that the Veteran met the 60 percent rating criteria under Diagnostic Code 5243.  However, there is no evidence that the examiner actually performed any range of motion or other physical tests on the Veteran or that he actually interviewed the Veteran.  Furthermore, there is no evidence in his review of the Veteran’s records of any prescribed bedrest. Therefore, the Board notes that it appears as though the examiner merely based their determination on the July 2014 VA examination findings, but failed to note the July 2014 examiner’s notation of no bedrest.  Therefore, as the June 2017 private evaluation appears to be based on inaccurate or incomplete information, the Board affords it little, if any, probative weight. 

In February 2020 the Veteran underwent another VA Back Conditions examination with an accompanying DBQ.  The examiner noted that the Veteran suffered from degenerative arthritis of the spine and IVDS as well as bilateral lower extremity radiculopathy.  The Veteran reported back pain, stiffness, locking and lower extremity numbness. Furthermore, the Veteran reported that when his back is “bad,” he could not “get up from the floor.”  Upon examination, range of motion testing revealed forward flexion 0 to 75 degrees, extension 0 to 25 degrees, right and left lateral flexion 0 to 20 degrees, and right and left lateral rotation 0 to 30 degrees.  The examiner noted pain on examination but that such did not result in or cause functional loss.  The examiner further noted that the Veteran was able to perform repetitive use testing and that such did not result in additional loss of function or range of motion.  In addition, the examiner noted that while the examination was not being completed immediately after repetitive use over time, such was medically consistent with the Veteran’s statements describing such.  The examiner noted that pain would limit functional ability and reported forward flexion 0 to 60 degrees, extension 0 to 15 degrees, right and lateral flexion 0 to 20 degrees, and right and lateral rotation 0 to 20 degrees.  Again, the examiner noted that while the examination was not being completed during a flare-up, such was medically consistent with the Veteran’s statements describing such.  The examiner noted that pain would limit functional ability and reported forward flexion 0 to 60 degrees, extension 0 to 10 degrees, right and left lateral flexion 0 to 20 degrees, and right and left lateral rotation 0 to 20 degrees. The examiner found no objective evidence of guarding, muscle spasm or ankylosis.  Muscle strength testing was normal, reflex testing was mostly normal with hypoactive results, and sensory testing revealed decreased sensation.  The examiner noted that the Veteran did have bilateral lower extremity radiculopathy but found that such was moderate in severity.  The examiner noted that the Veteran did suffer from IVDS but that the Veteran did not have any episodes of incapacitation that required bedrest within the prior 12 months.  Finally, the examiner noted that the Veteran’s back condition did impact his ability work in that the Veteran had difficulty bending, lifting, pushing, walking and even standing.  

In September 2020 the Veteran submitted another private evaluation. The examiner found after reviewing the Veteran’s records that he had significant lumbar disc disease.  Furthermore, he noted that the Veteran’s forward flexion was less than 30 degrees and therefore warranted a 40 percent rating.  However, it is unclear where the examiner got his forward flexion measurement from as it does not appear that the examiner actually performed any physical testing on the Veteran.  Furthermore, there is no indication in the Veteran’s treatment records that his forward flexion was limited to 30 degrees or less.  In addition, the examiner noted that the Veteran had bilateral lower extremity radiculopathy and that such had progressed to at least a “moderate” phase, which entitled him to a 40 percent rating as well.  Again, the Board notes that the examiner does not appear to have physically examined the Veteran. Therefore, as it is unclear as to where the examiner is getting their measurements, the Board affords the September 2020 private evaluation little, if any, probative weight. 

Throughout the appeal the Veteran has submitted statements indicating his belief that his low back disability is worse than is reflected by his assigned rating.  In November 2020 he testified at a Board hearing and noted that his back pain had gotten progressively worse over the years but had stayed about the same as it was at his February 2020 VA examination.  He noted that it hurt all the time and that he could not take pain medication due to his kidney condition, but that the pain was so bad it interfered with his sleep.  He stated that his back pain made it so he couldn’t sit, stand or lay down for long periods; he said he was in constant motion. He testified that his legs would go numb.  He said that as a result of his back and legs he could no longer do the physical work that he was used to.  

Following a review of the relevant evidence of record, the Board concludes that, when applying the General Rating Formula to the Veteran’s degenerative joint disease of the lumbar spine, with IVDS, the evidence does not warrant a rating in excess of 20 percent disabling.  There have been no objective findings of forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent rating.  The most restrictive range of motion found was 45 degrees of forward flexion documented on the July 2014 VA examination.  The Board notes that the private September 2020 examiner noted forward flexion limited to less than 30 degrees, however as previously noted, there is no indication that the examiner actually performed any physical examination of the Veteran and it is unclear where the examiner got such a measurement as there is no documentation of such in the Veteran’s treatment records.  Therefore, as the Board has found the September 2020 private evaluation nonprobative, there is no objective evidence of limited motion that would warrant a 40 percent rating. 

The Veteran has reported chronic low back pain, and, thus, the Board recognizes the application of 38 C.F.R. §§ 4.40, 4.45, and Deluca.  However, a higher evaluation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of 20 percent.  In the range of motion testing of record, pain was elicited at the limits of forward flexion, however it was noted that the pain itself did not result in or cause functional loss.  The examiners further noted that the Veteran could do repetitive motion testing and there was no additional loss of function or range of motion after repetition.  In sum, there is no objective evidence that flare-ups result in loss of range of motion meeting the criteria for a rating in excess of 20 percent.  Again, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss.  See Mitchell, supra.  In this case, no additional functional loss has been caused by pain.  Therefore, a rating in excess of 20 percent is not warranted based on limitation of motion. 

The Board has also considered whether it may be appropriate to rate the Veteran’s degenerative joint disease of the lumbar spine, with IVDS under other diagnostic codes but finds that no higher ratings are warranted.

A rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4,81a, Diagnostic Code 5243.  The Board notes that at the July 2014 VA examination, the examiner noted that the Veteran had IVDS and that he experienced incapacitating episodes of at least 6 weeks during the prior 12 months.  However, the examiner also found that no bedrest had been prescribed by a physician.  Therefore, it appears that the examiner’s finding of incapacitating episodes of a duration of at least 6 weeks was based on lay statements rather than medical records and/or doctor prescribed bedrest.  Furthermore, the Board notes that the July 2017 private examiner also found that the Veteran met the 60 percent rating criteria under Diagnostic Code 5243, however as previously noted, it seems that such was based on the July 2014 examination findings, without noting the July 2014 examiner’s notation of no bedrest. Therefore, as the Board has found fault with the July 2014 VA examination findings as well as the July 2017 private examination, there is simply no objective evidence showing that the Veteran has suffered incapacitating episodes lasting a total of at least four weeks during the prior 12 months to warrant a 40 percent rating for IVDS.  In this regard, the Board finds a higher rating based on IVDS with incapacitating episodes is not warranted. 

The Board finds that a higher rating is not assignable under any other potentially applicable rating criteria.

With respect to neurological abnormalities pursuant to Note (1) of the General Rating Formula for Disease and Injuries of the Spine, the Board notes that other than bilateral radiculopathy, which will be discussed further below, there have been no objective findings of neurological abnormalities associated with the Veteran’s degenerative joint disease of the lumbar spine, with IVDS.  There is no evidence of bowel or bladder dysfunction, and the Veteran has expressly denied such problems during his examinations. Significantly, all the VA examinations of record have found no associated neurological abnormalities, other than the Veteran’s already service-connected bilateral radiculopathy.  Thus, additional separate compensable ratings are not warranted for any neurological symptoms, and the Veteran’s symptoms are adequately contemplated under the assigned disability ratings discussed above.

Therefore, the preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 20 percent disabling or separate ratings for his degenerative joint disease of the lumbar spine, with IVDS.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

Entitlement to an initial rating in excess of 50 percent disabling prior to January 15, 2015, for service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder, is denied; however, a 70 percent rating, but no higher, from January 15, 2015 to February 17, 2020, is granted. 

The Veteran contends that the severity of his trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder warrants higher ratings.  As the Veteran’s claim was an appeal of the initial grant of service connection and assignment of the initial rating, the Veteran’s entire history is under consideration. 

The Veteran is currently in receipt of a 50 percent disability rating prior to February 17, 2020, and 100 percent disability rating thereafter for service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder under Diagnostic Codes 9434-9413.  Hyphenated codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code.  38 C.F.R. § 4.27.  The hyphenated diagnostic code in this case indicates that major depressive disorder under Diagnostic Code 9434 is the service-connected disorder and that unspecified anxiety disorder under Diagnostic Code 9413 is the residual condition. 

The Veteran’s service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder is evaluated under the criteria of Diagnostic Code 9413, which provides evaluations pursuant to VA’s General Rating Formula for Mental Disorders.  Under the formula, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 

A 50 percent rating is warranted when there is 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 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. 

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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 

A 100 percent rating is warranted when there is 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. 

As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013).  The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’”  Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. 

Furthermore, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.”  38 C.F.R. § 4.126 (a). 

In addition to evidence regarding the Veteran’s symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning (GAF) score is another component considered to determine the entire disability picture for the Veteran.  The GAF score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness” from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms.  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). 

The Board notes that VA recently updated references in its regulations to the Fifth Edition of the DSM (DSM-5), which has removed the use of GAF scores due to their inconsistency and subjective nature.  The changes only apply to claims that were certified for appeal to the Board after August 4, 2014.  See 80 Fed. Reg. 14,308 (March 19, 2015) (Applicability Date).  Inasmuch as the Veteran’s appeal was certified to the Board in May 2020, the amendments are applicable.  Therefore, while the Board will note any GAF scores assigned to the Veteran and consider such in light of the other evidence of record, they are not definitive.

Post-service treatment records reflect the Veteran’s reports of depression, anxiety and insomnia. Treatment records also note that the Veteran had social anxiety and withdrawal, loss of interest and feelings of worthlessness.  Upon examination, the Veteran was found to be routinely alert, oriented, calm and cooperative.  He made eye contact and established a rapport and answered questions.  His speech was normal in quality and rate, psychomotor activity was normal and his mood was depressed and anxious.  His affect was restricted, but his perception was clear. His thought associations were intact and his thinking was organized and goal-directed with normal rate and flow.  There was no evidence of delusional thought content.  No evidence of suicidal or homicidal ideation, and his intelligence was estimated to be normal and his memory and other cognitive functions were intact. GAF scores were assigned to include 40, 44, 48, and 50.

In August 2014 the Veteran underwent a VA Mental Disorders examination with an accompanying DBQ.  The examiner noted that the Veteran suffered from posttraumatic stress disorder (PTSD) with depressed mood, other specified personality disorder with antisocial and borderline symptoms, and alcohol use disorder.  The examiner found that the Veteran’s mental health disabilities caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner also noted that the Veteran’s mental health conditions were too intertwined to distinguish which caused more or less occupational and social impairment.  The Veteran reported that he had been married and divorced twice and had good relationships with his adult children and grandchildren.  Upon examination, the examiner noted depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner further noted that the Veteran was pleasant and overtly cooperative. He was well groomed and dressed in casual clothing with no motor or gait problems.  His speech was goal directed and logical.  His affect was restricted and his mood was ok.  His memory was within normal limits and he denied suicidal and homicidal ideation. 

In January 2015 the Veteran underwent a private evaluation.  The private examiner, Dr. O. A-S, after a thorough review of the Veteran’s records as well as an interview of the Veteran, found that the Veteran suffered from PTSD, major depression, and alcohol abuse.  The Veteran reported that he married his first wife between his active duty tours and his second wife after, both marriages ended in divorce.  The Veteran reported a particularly contentious second divorce but noted good relationships with his grown children and grandchildren.  Upon examination, the examiner noted that the Veteran was alert and oriented.  Furthermore, the Veteran was irritable but superficially friendly.  His speech rate and prosody were within normal limits.  His mood was “ok” and his affect was irritable. The Veteran reported a constricted range of daily emotional experiences.  The Veteran reported isolation, avoidance of crowds, and emotionally reactive, especially regarding anger. The Veteran reported that his anger often caused him to resort to physical aggression.  The Veteran reported that he continued to harbor intense anger toward the sergeant that he blamed for his dismissal from the military and that he often indulged in revenge fantasies of killing him.  In addition, the Veteran reported chronic passive suicidal thoughts.  However, the Veteran denied frank suicidal and homicidal ideation, and auditory and visual hallucinations.  The examiner found the Veteran’s intelligence to be in the low average range, his memory was intact, but his judgement and insight were poor.  The examiner found that the Veteran’s mental health disabilities were 50 percent disabling. 

In February 2020 the Veteran underwent an additional VA Mental Disorders examination with an accompanying DBQ.  The examiner noted that the Veteran suffered from other trauma and stressor related disorders, major depressive disorder, unspecified anxiety disorder and alcohol use disorder.  The examiner also noted that the Veteran suffered from personality disorder with cluster B traits. The examiner found the Veteran’s conditions to be overlapping, chronic and interdependent and due to the chronicity, it was not possible to differentiate symptoms attributable to each diagnosis.  The examiner found that the Veteran’s conditions caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The Veteran reported that his children were his support and that he continued to have good relationships with his grown children.  Upon examination, the examiner noted depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, direction or recent events, speech intermittently illogical, obscure, or irrelevant, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, 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 worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and neglect of personal appearance and hygiene. The examiner noted that the Veteran’s hygiene and grooming were poor, he perseverated and had to be redirected numerous times.  He was highly agitated and depressed and tearful.  His recent memory was impaired, but his long-term memory was intact.  He reported suicidal ideation but without intent.  The Veteran’s speech was pressured due to anxiety and did not follow with ebb and flow of evaluation.  His insight was impaired but there was no evidence of mania or thought disorder.  The examiner found that the new diagnosis was a correction of the previous diagnosis and supported by an increase in symptoms. 

In September 2020 the Veteran underwent an additional private evaluation by Dr. O. A-S.  Dr. O. A-S. noted that he again reviewed the Veteran’s records and conducted an additional interview with the Veteran. Upon examination, the Veteran was alert and oriented and he presented with rapid and angry speech. The Veteran reported “a lot of cloudy days.”  The Veteran was highly reactive in affect and his mood ranged from anxious to angry to sad.  The Veteran endorsed considerable hopelessness and pessimism. His attention and focus were extremely poor.  His sleep was poor and broken and his appetite was also poor.  He denied any active suicidal ideation but noted ongoing passive suicidal ideation.  He denied homicidal ideation.  The examiner found that the Veteran’s mental health disabilities caused 70 percent disability.  Furthermore, the examiner found that the Veteran’s conditions caused persistent and marked deficits in his work, interpersonal and social function and had caused the Veteran to be 70 percent disabled since January 15, 2015.  The examiner found that the information previously provided to the examiner was not as complete, but after reviewing the more thorough records, the examiner stated that the Veteran’s conditions were far worse than previously noted and that the Veteran minimized the severity of his symptoms and their impact during his prior evaluation.  The examiner revised his prior determination and found that the Veteran could not work as a result of his mental health disabilities and that he warranted a 70 percent disability rating beginning in 2015. 

Throughout the appeal, the Veteran submitted statements indicating his belief that his mental health disabilities were worse than is reflected by his assigned ratings.  Furthermore, in November 2020 the Veteran testified at a Board hearing and noted that he had two failed marriages and no social life outside of his children and grandchildren.  In addition, he noted that he felt he was always under a cloud or in a haze and that such rarely lifted.  

Period prior to January 15, 2015

Following a review of the relevant evidence of record, the Board concludes that for the period prior to January 15, 2015, the Veteran is not entitled to a rating in excess of 50 percent disabling for his service-connected trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder.  In this regard, the Board finds that such disability is manifested by occupational and social impairment with reduced reliability and productivity as a result of psychiatric symptomatology, to include difficulty sleeping, depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.

In this regard, the Board finds that such symptomatology, to specifically include the Veteran’s depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, as well as the frequency, severity, and duration of his psychiatric symptoms are contemplated in his current 50 percent rating. 

As indicated previously, 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); inability to establish and maintain effective relationships.

Based on the evidence of record, the Board finds that the Veteran’s trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder does not result in occupational and social impairment with deficiencies in most areas for the period prior to January 15, 2015.  With respect to the symptoms noted to be indicative of a 70 percent rating, the Board notes that the record includes a notation that the Veteran had difficulty in adapting to stressful circumstances.  Specifically, the August 2014 VA examiner noted that amongst the Veteran’s other psychiatric symptoms, he would have difficulty adapting to stressful circumstances, however the examiner also found that the Veteran’s symptoms caused only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner specifically found that the Veteran would occasionally experience a decrease in work efficiency or intermittent inability to perform, however the Veteran was generally functioning satisfactorily. Therefore, the Board finds that the Veteran’s difficulty in adapting to stressful circumstances does not meet the frequency, severity, and duration contemplated by a 70 percent rating. 

Furthermore, there is no evidence that for the period prior to July 15, 2015, that the Veteran endorsed any suicidal ideation or had obsessional rituals that interfered with his routine activities. Pertaining to the Veteran’s speech, it was never described as illogical, obscure, or irrelevant. Specifically, during the August 2014 VA examination, and throughout the numerous mental status evaluations conducted in the Veteran’s treatment records, it was described as normal in rate and tone and was goal directed, normal and linear.   In addition, there is no evidence that the Veteran suffered from panic attacks let alone near-continuous panic attacks.  And while the Veteran endorsed depressed mood, there is no indication that such affected his ability to function independently, appropriately and effectively. 

Additionally, for the period prior to January 15, 2015, there is no evidence that the Veteran suffered from impaired impulse control.  Rather, the Veteran’s impulse control was found to be appropriate during the August 2014 VA examination and no problems with impulse control or violence were noted throughout his treatment records.  Furthermore, the Veteran has never been noted to have spatial disorientation.  In this regard, the Veteran has been found to be consistently alert and oriented during the course of the appeal. 

The Board further finds that for the period prior to January 15, 2015, the evidence fails to demonstrate that the Veteran neglected his personal appearance and hygiene.  In this regard, VA treatment records and examination reports dated during the appeal period consistently showed that he has been clean and casually dressed and neatly groomed. 

Pertaining to whether the Veteran was unable to establish and maintain effective work and social relationships, the Board finds that while the Veteran had difficulty, he was not shown unable.  The Veteran reported that while he had two failed marriages and virtually no social life, he did maintain relationships with his grown children and grandchildren. Therefore, while the Board finds that the Veteran does have difficulty in establishing and maintaining effective work and social relationships, his difficulty has not kept him from maintaining relationships with his children and grandchildren throughout the appeal period. 

The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating criteria, to include difficulty sleeping.  See Mauerhan, supra; Vazquez-Claudio, supra.  However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 50 percent under the General Rating Formula as they are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 

Therefore, for the period prior to January 15, 2015, as the Veteran’s trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder symptoms, as detailed previously, are contemplated by his 50 percent rating and, absent more severe symptoms, a higher rating is not warranted. 

Moreover, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met.  In this regard, the evidence does not show that the Veteran has 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. 

In this regard, there was no evidence of delusions, grossly inappropriate behavior, danger to himself or others, or significant cognitive impairment found on mental status examination.  The VA examination conducted in August 2014 as well as the mental status examinations conducted throughout the appeal found the Veteran’s thought process and content to be unremarkable, or without impairment or delusions.  VA treatment records showed no perceptual disturbance such as delusions or hallucinations, mania or psychosis. Furthermore, neither the Veteran nor the record indicates that the Veteran suffered from an inability to perform activities of daily living, or memory loss for names of close relatives, occupation or own name.  Rather, the evidence reflects that he maintained relationships with his grown children and grandchildren.  Furthermore, for the period, the record routinely showed that the Veteran was fully oriented.  

Finally, as will be discussed further below, the evidence reflects that, while the Veteran was unemployed throughout the appeal, such is not solely due to his mental health disabilities.  Therefore, the Veteran is not entitled to a 100 percent rating under the General Rating Formula for the period prior to January 15, 2015. 

Therefore, the preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 50 percent disabling for the period prior to January 15, 2015, for his trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

Period from January 15, 2015 to February 17, 2020

Following a review of the relevant evidence of record, the Board concludes that for the period from January 15, 2015, to February 17, 2020, the Veteran’s trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder resulted in occupational and social impairment with deficiencies in most areas as a result of psychiatric symptomatology, to include suicidal and homicidal ideation, depression, isolation, avoidance of crowds, impaired impulse control, irritability and sleep disturbance, without more severe manifestations that more nearly approximate total occupational and social impairment.  Therefore, a 70 percent disability rating, but no higher, is warranted. 

With respect to the symptomatology considered in the assignment of a 70 percent rating, the probative evidence of record reveals that the Veteran endorsed a history of suicidal ideation on both of his private evaluations as well as the February 2020 VA examination.  Furthermore, the Veteran reported some homicidal ideation during the January 2015 examination.  The Veteran also noted that he was generally depressed and avoided crowds and isolated himself.  Additionally, the Veteran had extremely limited social relationships as indicated by his reports of isolation and noting that he only interacted with his family.  Notably, the evidence suggests that while he maintained relationships with his children and grandchildren, he had been married and divorced twice and ultimately lived with his grown son.  Furthermore, the Veteran’s psychiatric disability resulted in impaired impulse control and anger, which caused him to resort to physical aggression. 

Furthermore, while acknowledging that VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected psychiatric disability, the Court recently indicated that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas.  See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas).  Here, the Veteran not only reported suicidal ideation, he also exhibited limited social relationships, impaired impulse control, and serious depression.  Moreover, he was repeatedly assigned GAF scores in the 40s and 50s, which are indicative of moderate to moderately severe symptoms.  Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that for the period from January 15, 2015 to February 17, 2020, the criteria for a 70 percent rating for trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder have been met.

However, the Board finds that the criteria for a 100 percent rating under the General Rating Formula have not been met.  In this regard, the evidence does not show that the Veteran has total social and occupational 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. Indeed, for the period from January 15, 2015 to February 17, 2020, the record does not reflect that the Veteran’s trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder symptoms have resulted in total social and occupational impairment. 

The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating schedule, including irritability and sleep disturbance.  See Mauerhan, supra.  However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula as they are not of such a duration, severity, or frequency to result in total occupational and social impairment.  Ultimately, the Board finds that the Veteran’s trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder does not warrant a rating in excess of 70 percent.

Ultimately, the Board finds that a 70 percent rating, but no higher, for trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder is warranted for the period January 15, 2015 to February 17, 2020; however, the preponderance of the evidence is against a rating in excess of 70 percent.  Therefore, the benefit of the doubt doctrine is not applicable except as has been applied to the rating assigned herein, and the Veteran’s claim for an increased rating is otherwise denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Entitlement to initial ratings in excess of 20 percent disabling for service-connected radiculopathy of the right and left lower extremity are denied. 

The Veteran contends that the severity of his bilateral lower extremity radiculopathy warrants higher ratings.  As the Veteran’s claim was an appeal of the initial grant of service connection and assignment of the initial rating, the Veteran’s entire history is under consideration. 

The Veteran’s radiculopathy is rated under Diagnostic Code 8520, which evaluates paralysis of the sciatic nerve.  Under this Diagnostic Code, moderate incomplete paralysis of the affected nerve is rated 20 percent disabling, moderately severe incomplete paralysis of the affective nerve is rated 40 percent disabling, severe incomplete paralysis with marked muscle atrophy is rated 60 percent disabling, and complete paralysis of the affected nerve is rated 80 percent disabling.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

The words “moderate,” “moderately severe,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. 

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves.

The Veteran’s post-service treatment records reflect the Veteran’s reports of back pain and bilateral lower leg numbness and weakness.  Xray and MRI evidence noted degenerative changes as well as disc space narrowing and bulging/herniated discs.  

In July 2014 the Veteran underwent a VA Back Conditions examination with an accompanying DBQ.  The examiner noted that the Veteran suffered from degenerative arthritis of the spine and IVDS. The examiner noted that no bedrest had ever been prescribed as a treatment by a physician.  Muscle strength and sensory testing was mostly normal and reflex testing was hypoactive.  The examiner noted radicular pain or other signs of radiculopathy, specifically severe numbness in the right lower extremity.  However, the examiner also noted that the Veteran’s bilateral lower extremities were not affected by radiculopathy.  

In June 2017 the Veteran underwent a private evaluation. The examiner noted a review of the Veteran’s service and post-service treatment records, and opined that the Veteran’s back disability and nerve root displacement were causally related to his military service.  However, there is no evidence that the examiner actually performed any range of motion or other physical tests on the Veteran or that he actually interviewed the Veteran.  Furthermore, other than noting the Veteran’s reports of bilateral lower extremity pain and numbness, the examiner did not specifically address the severity of the Veteran’s bilateral lower extremity radiculopathy. 

In February 2020 the Veteran underwent another VA Back Conditions examination with an accompanying DBQ.  The examiner noted that the Veteran suffered from degenerative arthritis of the spine and IVDS as well as bilateral lower extremity radiculopathy.  Muscle strength testing was normal, reflex testing was mostly normal with hypoactive results, and sensory testing revealed decreased sensation.  The examiner noted that the Veteran did have bilateral lower extremity radiculopathy, but found that such was moderate in severity.  Finally, the examiner noted that the Veteran’s back condition did impact his ability work in that the Veteran had difficulty bending, lifting, pushing, walking and even standing.  

In September 2020 the Veteran submitted another private evaluation. The examiner found after reviewing the Veteran’s records that he had significant lumbar disc disease.  In addition, the examiner noted that the Veteran had bilateral lower extremity radiculopathy and that such had progressed to at least a “moderate” phase.  

Throughout the appeal the Veteran has submitted statements indicating his belief that his bilateral lower extremity disability is worse than is reflected by his assigned ratings.  In November 2020 he testified at a Board hearing and noted that his back pain had gotten progressively worse over the years but had stayed about the same as it was at his February 2020 VA examination.  He noted that it hurt all the time and that he could not take pain medication due to his kidney condition, but that the pain was so bad it interfered with his sleep.  He stated that his back pain made it so he couldn’t sit, stand or lay down for long periods; he said he was in constant motion. He testified that his legs would go numb.  He said that as a result of his back and legs he could no longer do the physical work that he was used to.  

Following a review of the relevant evidence of record, the Board concludes that the criteria for disability ratings in excess of 20 percent are not met for the Veteran’s bilateral lower extremity radiculopathy.  The evidence of record simply does not support a 40 percent rating under Diagnostic Code 8520, which would be warranted if moderately severe incomplete paralysis of the affected nerve were shown.  While the July 2014 VA examination noted severe numbness, the examiner also found that the Veteran’s bilateral lower extremities were not affected by radiculopathy.  In addition, both the February 2020 VA and the September 2020 private examiners noted that the Veteran’s bilateral lower extremity radiculopathy resulted in no more than moderate incomplete paralysis. None of the examiners of record found symptomatology consistent with moderately-severe incomplete paralysis.  Therefore, the Board finds that the criteria for disability ratings in excess of 20 percent are not met for the Veteran’s bilateral lower extremity radiculopathy under Diagnostic Code 8520.  

The Board has considered all other potentially applicable Diagnostic Codes, but has found that no other Diagnostic Codes would result in more favorable findings.

Therefore, the preponderance of the evidence shows that the Veteran is not entitled to ratings in excess of 20 percent disabling, for his bilateral lower extremity radiculopathy.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

Other Considerations 

The Board has considered whether staged and further staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected disabilities; however, the Board finds that his symptomatology has been stable for each disability throughout the appeal period.  Therefore, assigning staged or further staged ratings for such disabilities is not warranted.

In assessing the severity of the disabilities under consideration, the Board has considered the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide.  See, e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134 (1994).  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher ratings pursuant to any applicable criteria at any point pertinent to this appeal.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However the preponderance of the evidence is against the claims, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Effective Date Claims

Entitlement to an effective date prior to October 9, 2008, for the awards of service connection for degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae), and for radiculopathy of the right and left lower extremities is denied.

The Veteran generally contends that an effective date prior to October 9, 2008, is warranted for the award of service connection for degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae), and for radiculopathy of the right and left lower extremities.  He has not provided any specific allegations or arguments as to why he believes this is so.

As previously noted, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later.  38 U.S.C. § 5110 (b)(1); 38 C.F.R.§ 3.400 (b)(2)(i).  A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought.  38 U.S.C. § 5101; 38 C.F.R. §§ 3.1 (p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed.Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999).  Treatment records do not constitute informal claims when service connection has not yet been established for the condition. 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002).  While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised.  Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

A review of the record reveals the first claim, formal or informal, seeking service connection for a back disability was the Veteran’s October 2008 claim received by the RO on October 9, 2008.  The Board notes that it was not within one year of the Veteran’s discharge from service, which was in July 1982.

By Board decision in April 2018, the Board granted service connection for, in pertinent part, a back disability.  By rating decision in April 2018, the RO implemented the Board’s grant and assigned a rating of 20 percent disabling.  Furthermore, the RO granted service connection for radiculopathy of the bilateral lower extremities as secondary to the Veteran’s service-connected back disability.  In awarding service connection, the RO assigned an effective date based on the date of receipt of the initial claim for service connection, i.e., October 9, 2008.

While the Veteran may have experienced back and leg symptomatology prior to October 9, 2008, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service because the effective date is constrained by procedural limitations (i.e., no earlier date of claim exists).  Crucially, the Veteran has provided no evidence or argument suggesting an alternative date of claim, and while the Board notes that service and VA treatment records reflect possible back problems related to the Veteran’s military service, treatment records do not constitute informal claims when service connection has not yet been established for the condition.  38 C.F.R. § 3.157; Sears, 16 Vet. App. at 244.  Therefore, such records cannot be used to establish a claim for service connection.  As such, the earliest possible effective date in this instance is October 9, 2008, the date upon which the original claim for service connection was received. 

The Board finds there is no legal basis upon which to assign an effective date prior to October 9, 2008, for the grant of service connection for degenerative joint disease of the lumbar spine, with IVDS (claimed as degenerative disc, vertebrae), and for radiculopathy of the right and left lower extremities.  Accordingly, the preponderance of the evidence is against the Veteran’s earlier effective date claims.  As such, the benefit-of-the-doubt doctrine does not apply, and the Veteran’s claims must be denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57.

TDIU

Entitlement to a TDIU due to service-connected disabilities is granted. 

The Veteran asserts that he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. 

When a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when the disabled person is unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). 

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.”  Rice, 22 Vet. App. at 452.  Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor).

The Veteran is service connected for other trauma and stressor related disorder with major depressive disorder, unspecified anxiety disorder and alcohol use disorder (previously rated as PTSD) rated as 50 percent disabling from October 9, 2008, as 70 percent disabling from January 15, 2015, and 100 percent disabling from February 17, 2020; for degenerative joint disease lumbar spine with IVDS rated as 20 percent disabling from October 9, 2008; for radiculopathy of the right and left lower extremities associated with degenerative joint disease, with IVDS rated as 20 percent disabling from October 9, 2008.  As such, he meets the schedular threshold criteria for consideration of a TDIU.  38 C.F.R. § 4.16 (a).  Additionally, upon review of the evidence, the Board finds that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. 

Turning to his educational and work experience, the evidence of record indicates that the Veteran has a high school education, but no subsequent training.  Regarding his work history, his testimony at the November 2020 hearing and the record suggest that he previously worked as a carpenter, locomotive engineer and a long-haul trucker.  He credibly testified that all of these positions required a level of interpersonal interaction which he could not maintain due to his mental health disability and a level of physical exertion that he could not maintain due to his back and radiculopathy symptoms. 

The Veteran underwent VA examinations in July and August 2014, and February 2020.  Furthermore, the Veteran submitted private evaluations in January and June 2017 and September 2020. 

In July 2014 the Veteran underwent a VA Back Conditions examination and in August 2014 he underwent a VA Mental Conditions examination.  The back examiner found that the Veteran’s low back disability would impact his ability to work in that it would limit his ability to sit, drive, reach, stand, walk, and other repetitive motions such as kneeling, lifting, squatting, climbing, pushing/pulling, and bending. The mental health examiner found that the Veteran’s mental health disabilities caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The Veteran reported that he was not working and that while he could not work because of his depression and mood, he left his job due to his physical limitations and disabilities.   

In January 2015 the Veteran underwent a private mental health evaluation.  The Veteran reported that he left work in 2006 due to his back disability.  The examiner found that the Veteran’s mental health disabilities caused the Veteran to be 50 percent permanently disabled in his social, occupational and interpersonal functioning. 

In June 2017 the Veteran underwent a private evaluation of his low back disability.  The examiner noted that the Veteran suffered from lumbosacral and lower extremity pain and disc herniation with nerve root displacement and that such were due to his active duty service.  Furthermore, the examiner found that the Veteran should be considered “100% disabled with no earing capacity.”  However, the examiner was also taking into consideration other disabilities, hearing loss and bronchitis, which are not currently service connected.  Therefore, it is unclear what extent of the 100 percent disabled the examiner attributed to the Veteran’s low back disability. 

In February 2020 the Veteran underwent VA PTSD and Back Conditions examinations.  The mental health examiner found that the Veterans mental health disabilities resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The back examiner found that the Veteran’s low back disability impacted his ability to work as the Veteran had difficulty bending, lifting, pushing, walking, and even standing for prolonged periods of time.  

In September 2020 the Veteran underwent private evaluations for his mental health and back disabilities.  In addition, a vocational assessment was submitted.  The mental health examiner found that the Veteran’s mental health disabilities were worse than was previously indicated and that the Veteran had minimized his symptoms.  The examiner found that the Veteran was unemployable due to his mental health disabilities.  The back examiner noted that the Veteran suffered from significant lumbar disc disease as well as moderate bilateral radiculopathy.  However, he did not discuss how such disabilities would impact the Veteran’s ability to work. The vocational expert reviewed the Veterans records and conducted an interview with the Veteran.  The vocational expert opined that it was at least as likely as not that the Veteran had been unable to secure and follow substantially gainful employment since at least October 2008 due to his service-connected mental health, low back and bilateral lower extremity radiculopathy.  The vocational expert noted that the Veteran’s conditions rendered him unable to perform all employment, even sedentary unskilled work to include his past occupations, which were medium to heavy in physical demands. Due to the Veteran’s low back and bilateral leg pain, as well as anxiety, fatigue and panic, the Veteran would be unable to maintain adequate concentration or retain information for extended periods to remain on task and productive. Additionally, due to his physical inability to maintain any position for prolonged periods of time, and subsequent inability to maintain concentration, he would be unable to maintain adequate pace and productivity.  Furthermore, the Veteran would have difficulty performing sedentary work due to his inability to interact with others due to isolation and avoidance. Therefore, as a result of the combined effects of the Veteran’s service-connected disabilities, the Veteran did not possess the necessary skills or physical abilities to secure or follow any sedentary, physical or solitary occupation.  

Throughout the appeal, the Veteran has submitted statements indicating his belief that he could not work as a result of his service-connected disabilities. Furthermore, during the November 2020 Board hearing, the Veteran testified that his last job was in 2006 as a carpenter, but that he had previously worked as a locomotive engineer and long-haul trucker.  The Veteran reported that due to his physical disabilities, he could no longer do the type of work to which he was accustomed.  Furthermore, the Veteran reported that he also had trouble sleeping, always felt as if he was in a fog or cloud and that he did not socialize with anyone other than his children. 

While the VA examiners indicated the Veteran could perform work, specifically solitary work, testimony from the November 2020 hearing as well as evidence from the various mental health examinations of record, establishes that the Veteran could not and did not have the capacity to interact with supervisors and coworkers and was unable to maintain that employment.  Furthermore, he does not have the skills or expertise to perform other types of solitary employment.  In this regard, he has no additional training and has never held a position in an office setting.  Furthermore, the VA examinations of record as well as the September 2020 vocational expert indicated that the Veteran’s physical disabilities would keep him from being able to perform the physical labor and employment that he was experienced in.  In addition, his physical disabilities would also prohibit sedentary work, as he would have to be constantly changing positions and his mental health disabilities limited his ability to concentrate and absorb new information. 

Notably, the question of employability is ultimately a legal one, not a medical one.  The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment he is experienced in nor engage in a new type of employment due solely to his service-connected disabilities.  In this regard, the Board finds the opinions of the VA and private examiners to be highly probative as all the examiners considered the full evidence of record, including lay statements, and clearly articulated how the Veteran’s disabilities would hinder physical as well as sedentary and solitary employment.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  Furthermore, the Board also finds the Veteran’s hearing testimony to be highly probative, therefore in light of the totality of the evidence, the Board finds that a TDIU is warranted. 

Based on the analysis above and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment.  See 38 U.S.C. § 5107; 

 

38 C.F.R. §§ 3.102, 4.3, Gilbert, supra.  Therefore, entitlement to a TDIU is warranted. 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Unger, 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.