Citation Nr: 21015054 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-03 030 DATE: March 16, 2021 ORDER Entitlement to an initial rating higher than 70 percent for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is denied. Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy also is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD and MDD symptoms do not result in total occupational and social impairment. 2. Throughout the appeal period, so since July 29, 2009, the radiculopathy of the Veteran’s left lower extremity has manifested in symptoms – including pain and numbness, but that do not, in turn, result in moderately severe incomplete paralysis of the affected nerve (sciatic nerve).   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating higher than 70 percent for the PTSD with MDD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126-4.130, Diagnostic Code (DC) 9499-9411. 2. The criteria also are not met for a rating higher than 20 percent for the radiculopathy of the left lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, DC 8599-8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1984 and from May 1987 to December 1995. This appeal to the Board of Veterans’ Appeals (Board) is from October 2011 and July 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development – including to obtain all outstanding treatment records relevant to these claims, whether from VA or private medical providers, and then to have the Veteran reexamined to reassess the severity of these service-connected disabilities. There since has been the required compliance – certainly acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (clarifying that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. "Staged" ratings are appropriate when the evidence establishes the disability manifested symptoms that would warrant different ratings for distinct time periods, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 1. Entitlement to an initial disability evaluation in excess of 70 percent for the PTSD with MMD This mental disorder is rated under hyphenated DC 9499-9411. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. The hyphenated DC indicates an unlisted disorder under DC 9499 that is rated, by analogy, under the criteria for PTSD under DC 9411. According to the General Rating Formula for Mental Disorders (General Formula), a 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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 worklike setting); inability to establish and maintain effective relationships. An even higher (and maximum possible) 100 percent evaluation is warranted 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. See 38 C.F.R. § 4.130, DC 9411. The symptoms listed in the General Rating Formula, so inclusive of DC 9411, are not intended to constitute an exhaustive list, but rather serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Furthermore, as the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) 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). 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, DC 9411. The Veteran initially underwent a VA PTSD examination in September 2011. She reported depressed mood, binge eating, difficulty falling and staying asleep, reduced energy level, feelings of worthlessness at times, irritability at times, and anxiety at times. She also disclosed that she had suicidal thoughts for a month while in service but did not seek psychiatric care. The VA examiner noted that the Veteran demonstrated hypervigilance and an exaggerated startle response. The Veteran underwent another VA PTSD examination in June 2015. The VA examiner noted that the Veteran’s PTSD with MDD symptoms were manifested with associated memories of trauma during service, nightmares, flashbacks, emotionally upset when reminded of her trauma, accompanied by strong physical reactions and avoidance symptoms. She also had trouble remembering parts of her trauma, as well as strong negative beliefs about herself and others, including blaming herself for the trauma. The Veteran exhibited strong negative feelings, feeling emotionally disconnected, trouble experiencing positive feelings, irritability, hypervigilance, and easily startled. She reported that her relationship with her husband has been relatively good; however, the Veteran explained that she has not had much contact with her daughter and her relationship with her son is hit or miss. She stated that she is active with her congregation and has a lot of friends with whom she communicates via text, but she does not feel connected to them. She does, however, feels close to her mother-in-law and talks to her. Regarding her occupational history, rhe Veteran reported that she quit her last job due to anxiety. The Board’s September 2018 remand partly was to again reassess the severity of this service-connected mental disability. During the additional VA PTSD examination the Veteran consequently underwent in August 2019, the VA examiner indicated the Veteran PTSD with MDD symptoms include depressed mood, anxiety, near-continuous panic or depression affecting her ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. She reported having nightmares but denied suicidal ideation. She reported being currently married to a "very loving man", and she indicated they have been together for 25 years. She also said they are planning to buy a home in Puerto Rico. She still described her relationship with her children as distant. In a February 2020 VA treatment note, the Veteran discussed having social distance swim visits due to the COVID-19 pandemic. The examiner noted that the Veteran’s mood was pleasant, and that her affect was congruent with the conversation. She maintained appropriate eye contact and was open and cooperative. She also was dressed casually with good hygiene. Based on the results of the several VA compensation examinations during the review period, as well as the treatment notes and other relevant records, including the Veteran’s lay statements, the Board finds that the preponderance of the evidence is against granting a higher 100 percent schedular rating for her PTSD with MDD because it is not shown she has the required total occupational and social impairment. The medical evidence of record does not support the conclusion that her overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for this greater 100 percent disability evaluation since there must be total occupational and social impairment, not, instead, deficiencies in most areas because that level of impairment is contemplated by her existing 70 percent rating. 38 C.F.R. §§ 4.7, 4.130, DC 9411. As examples, the competent evidence of record does not show that she has: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting herself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. There admittedly is some overlap in the Veteran's reported constellation of symptoms and those commensurate with a higher 100 percent rating. This includes, for example, her reports of memory loss, suicidal ideation, and ability to obtain and maintain consistent employment. She also had symptoms that are not listed with a specific rating, such as an exaggerated startle response. Nevertheless, her PTSD with MDD has not resulted in symptoms more nearly approximating the total social impairment contemplated by a 100 percent rating. Notably, despite experiencing total occupational impairment (or something akin to it, even if slightly less, as evidenced by her award of a total disability rating based on individual unemployability (TDIU) effectively as of July 29, 2010), she maintains at least some relationships with several friends and family members. Furthermore, her report of suicidal ideation is not persistent as she has often denied having suicidal ideation. And, in any event, suicidal ideation, to the extent she has had it, is contemplated in her existing 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve all reasonable doubt regarding the level of the Veteran's disability in her favor. But the Board finds that her overall disability picture more nearly approximates that of a 70 percent disability rating, that is, her symptoms do not more nearly reflect the frequency, severity, and duration of symptoms commensurate instead with a higher 100 percent rating. Therefore, as the preponderance of the evidence is against the claim for this greater rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy The Veteran’s left lower extremity radiculopathy is currently rated as 20-percent disabling under hyphenated DC 8599-8520. As previously explained, hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. According to DC 8520, a 40 percent rating is warranted for moderately-severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost).   These terms "mild," "moderate," "moderately severe", and "severe" are not defined in the Rating Schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to 38 C.F.R. § 4.124a, when the involvement is wholly sensory, the evaluation should be for the mild, or at the most, the moderate degree. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), the Board finds that a rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment, or muscle and/or reflex impairment that has been noted by the examiner to be moderate in nature. Having reviewed all the relevant evidence of record, lay and medical, the Board finds that, for the entire rating period on appeal (so since one year prior to receipt of this increased-rating claim), the service-connected left lower extremity radiculopathy has more nearly approximated moderate incomplete paralysis of the affected nerve (sciatic nerve), which is commensurate with the existing 20 percent rating under DC 8520. During a September 2011 VA examination, the Veteran complained of chronic episodic progressive sharp radiating pain, numbness, tingling, and burning sensation that goes down her left lower extremity to her toes. These symptoms occur 1 to 2 times a week. The Veteran reported flare-ups that last up to 2 hours.   On objective physical examination, the VA examiner noted that the Veteran’s left lower extremity muscle strength was normal. There were no edema or muscle atrophy. The Veteran had a VA peripheral nerves examination in July 2015. She continued to report having pain in her left leg that radiates down this leg into her toes. She reported seeking treatment with a chiropractor and, when considering it, her pain rated as a 4 out of 10; however, without treatment, the pain can be as high as a 10. Upon examination, she was found to have mild constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and no numbness. At the conclusion of the examination, the VA examiner described the severity of the left lower extremity radiculopathy as moderate. In a February 2017 VA treatment note, the Veteran reported there was no change in the pain, just worsened pain intensity. In a July 2017 VA treatment note, the Veteran reported that, since her back surgery, so status post L5-S1 hemilaminectomy and discectomy done in April 2017, she is significantly better; however, she does still have some residual occasional pain in her left foot. It was noted that there was no radicular pain in her legs, and she was neurologically intact with full strength in her upper and lower extremities. She said her left leg felt like the "nerves are coming back to life”; she described a burning sensation and muscle cramps. Following the Board’s September 2018 remand of this claim, the Veteran underwent another VA spinal examination in August 2019. It was indicated she had just relatively mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in her left lower extremity. No constant pain was reported, and she was not noted to have any additional signs or symptoms of radiculopathy. At the conclusion of this most recent examination, the VA examiner opined that the severity of the Veteran’s left lower extremity radiculopathy was mild, overall. There again was no muscular atrophy found on examination.   Having reviewed all the relevant evidence of record, lay and medical, the Board finds that a rating greater than 20 percent is not warranted as the Veteran's left lower extremity symptoms and consequent impairment since it is at most moderate and even more recently just relatively mild, as opposed to moderately severe or severe. She has what amounts to mild constant pain, moderate intermittent pain, mild paresthesias, and mild numbness according to her most recent August 2019 VA examination. In order to warrant the next higher rating, there must be evidence of moderately severe incomplete paralysis of the affected nerve, and there simply is not this required indication. Although her constant pain and intermittent pain has ranged from mild to severe, no clinician has characterized the radiculopathy of the Veteran's left lower extremity, overall, as "moderately severe" or worse. While an examiner's characterization of the level of impairment is not binding on the Board, 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present."), here, those characterizations were consistent with the evidence of record. For example, muscle strength testing was consistently normal. Consequently, a higher rating for the service-connected left lower extremity radiculopathy is not warranted. As such, for the entire disability rating period on appeal, meaning at all times since July 29, 2009 (one year prior to receipt of this increased rating claim), the Board finds the radiculopathy of the Veteran’s left lower extremity is best characterized as moderate; therefore, a disability rating under DC 8599-8520 in excess of 20 percent at any point during the rating period on appeal for the left lower extremity radiculopathy is not warranted. 38 C.F.R. § 4.124a.   Moreover, since, for the reasons and bases discussed, the preponderance of the evidence is against the claim for a disability rating grater than 20 percent for this radiculopathy of the left lower extremity, there is no reasonable doubt concerning this to resolve in the Veteran’s favor. 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8599-8520. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.