Citation Nr: 21021796 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-08 007 DATE: April 14, 2021 ORDER Entitlement to a disability rating in excess of 50 percent from February 7, 2012, through May 4, 2014, and in excess of 70 percent from May 5, 2014, for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is denied. Entitlement to a disability rating in excess of 10 percent from February 7, 2012, through May 4, 2014, and in excess of 20 percent from May 5, 2014, for degenerative disk disease (DDD) of the thoracic spine with degenerative spurring is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From February 7, 2012, through May 4, 2014, the severity, frequency, and duration of the Veteran’s PTSD and MDD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. Since May 5, 2014, the severity, frequency, and duration of the Veteran’s PTSD and MDD symptoms did not more closely approximate total occupational and social impairment. 3. From February 7, 2012, through May 4, 2014, the Veteran’s spine disability manifested as forward flexion to 90 degrees, at worst, and pain, muscle spasm, localized tenderness, and guarding that did not result in abnormal gait or spinal contour. 4. Since May 5, 2014, the Veteran’s spine disability manifested as pain and forward flexion to 65 degrees, at worst, and a combined range of motion of 165 degrees. 5. The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating excess of 50 percent from February 7, 2012, through May 4, 2014, and in excess of 70 percent from May 5, 2014, for PTSD with MDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes 9434-9411. 2. The criteria for a rating in excess of 10 percent from February 7, 2012, through May 4, 2014, and in excess of 20 percent from May 5, 2014, for DDD of the thoracic spine with degenerative spurring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The requirements for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to May 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to a disability rating in excess of 50 percent from February 7, 2012, through May 4, 2014, and in excess of 70 percent from May 5, 2014, for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) The Veteran contends that his service-connected PTSD with MDD warrants a higher disability rating. He filed a claim for increased ratings on February 7, 2012. From February 7, 2012, the Veteran’s psychiatric disability is rated as 50 percent disabling, and from May 5, 2014, it is rated as 70 percent disabling under Diagnostic Codes 9434-9411. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. Diagnostic Code 9434 relates to MDD, and 9411 relates to PTSD. Both codes are rated the under the General Formula for Mental Disorders. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. February 7, 2012, - May 4, 2014 The Board concludes that from February 7, 2012, through May 4, 2014, the Veteran’s psychiatric disability symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. The Veteran was afforded a VA examination in June 2012, during which he was diagnosed with PTSD and MDD. The examiner noted that it was not possible to differentiate the symptoms between the two disorders. The Veteran’s PTSD with MDD was manifested by all of the symptoms associated with a 30 percent rating, as well as symptoms associated with a 50 percent rating (disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships). He also had symptoms that are not listed with a specific rating, such as anger, racing thoughts, nightmares, and poor concentration. The examiner determined that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. The Board finds the preponderance of the evidence is against finding that the Veteran is entitled to a rating in excess of 50 percent for his psychiatric disability from February 7, 2012, through May 4, 2014. A review of the medical treatment notes during the relevant period fail to show that his symptoms were more severe than what was noted and assessed at the June 2012 VA examination. He did not report having any symptoms associated with or that were more approximate to a 70 percent or higher. Accordingly, a rating in excess of 50 percent prior to May 5, 2014, is denied. May 5, 2014 - Present The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The Veteran was afforded VA examinations in May 2014 and April 2019. In addition to the symptoms listed at the June 2012 VA examination, it was determined that the Veteran’s PTSD with MDD also manifested as a symptom associated with a 50 percent rating (panic attacks more than once a week), as well as symptoms associated with a 70 percent rating (obsessional rituals which interfere with routine activities, difficulty in adapting to stressful circumstances). The May 2014 and April 2019 examiners determined that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. The Board finds the preponderance of the evidence is against finding that the Veteran is entitled to a rating in excess of 70 percent for his psychiatric disability since May 5, 2014. In addition to the VA examinations, the Veteran’s medical treatment records were reviewed. Private medical records show the Veteran sought treatment in 2014 from a private marriage counselor. The counselor noted that during sessions, the Veteran was emotional and had difficulty expressing himself. He also stated that at the time, the Veteran was on three types of medication to manage his psychiatric symptoms. VA treatment notes from January 2019 indicate the Veteran was no longer on medication, and he declined the opportunity to restart medication or attend counseling. The Veteran denied that he had any trouble sleeping or suicidal ideation. VA treatment notes from January 2020 also show the Veteran denied experiencing hallucinations, homicidal thoughts, and suicidal ideation. The Veteran reported that he felt his depression and anxiety were managed well at the moment. At no point during the entire period on appeal has the Veteran reported experiencing symptoms associated with a 100 percent rating. Accordingly, a rating in excess of 70 percent from May 5, 2014, is denied. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 50 percent from February 7, 2012, through May 4, 2014, and in excess of 70 percent from May 5, 2014, for PTSD with MDD. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 10 percent from February 7, 2012, through May 4, 2014, and in excess of 20 percent from May 5, 2014, for DDD of the thoracic spine with degenerative spurring The Veteran contends that he is entitled to higher ratings for his spine disability. Currently, he is in receipt of a 10 percent rating from February 7, 2012, through May 4, 2014, and a 20 percent rating since May 5, 2014. The Veteran’s thoracic spine DDD is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. February 7, 2012, - May 4, 2014 The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for thoracic spine DDD from February 7, 2012, through May 4, 2014. During an April 2012 VA examination, the Veteran reported having persistent daily back pain, and denied having any flare-ups. Upon range of motion testing, the Veteran demonstrated forward flexion to 90 degrees, and had a combined range of motion of 240 degrees. The examiner noted that the Veteran had pain, muscle spasm, localized tenderness, and guarding that did not result in abnormal gait or spinal contour. In a March 2014 lay statement, the Veteran stated that he is in constant pain due to his back disability. VA treatment notes dated within the relevant period show the Veteran complained of back pain and was treated by a chiropractor. The Board acknowledges the Veteran’s lay reports of pain. However, a review of the medical and lay evidence fails to show that the Veteran’s back disability symptoms more nearly approximate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Accordingly, a rating in excess of 10 percent for thoracic spine DDD from February 7, 2012, through May 4, 2014, is denied. May 5, 2014 - Present The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for thoracic spine DDD since May 5, 2014. The Veteran was afforded VA examinations in May 2014 and April 2019. He reported experiencing flare-ups once each week, caused when using his back and prolonged sitting. At worst, he demonstrated forward flexion to 65 degrees during range of motion testing, and had a combined range of motion of 165 degrees. He was able to perform repetitive use testing without an additional loss of function or range of motion. The April 2019 VA examiner noted that during flare-ups, the Veteran experiences increased pain which causes functional loss, but the examiner did not provide an estimate of whether the loss would reduce range of motion. Objective evidence of pain was observed when the Veteran used his back in non-weight bearing, and his range of motion remained the same as active motion when performing passive range of motion. The Veteran did not have ankylosis of the spine. Even when considering the Veteran’s reports of flare-ups at the VA examinations and back pain throughout his VA treatment notes, the Board finds the preponderance of evidence is against finding that his back disability more nearly approximates forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Therefore, a rating in excess of 20 percent for thoracic DDD must be denied. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent from February 7, 2012, through May 4, 2014, and in excess of 20 percent from May 5, 2014 for thoracic DDD. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU Criteria VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). When determining if TDIU is warranted, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. 3. Entitlement to a TDIU The Veteran filed a claim for a TDIU on February 7, 2012. He is service connected for the following disabilities: PTSD with MDD rated at 50 percent from May 13, 2008, and 70 percent from May 5, 2014; thoracic spine DDD rated at 10 percent from May 13, 2008, and 20 percent from May 5, 2014; left knee status post meniscus repair rated as 10 percent from May 13, 2008; and a noncompensable rating for colon polyps. The Veteran’s combined rating for compensation purposes is 60 percent from May 13, 2008, and 80 percent from May 5, 2014. As a result, the Veteran meets the threshold percentage requirement for TDIU schedular criteria from May 5, 2014. The Board finds the preponderance of the evidence is against the assignment of a TDIU rating. The Veteran’s service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation. The record shows the Veteran submitted a VA Form 21-8940 in March 2014 and September 2019. In each form, the Veteran indicated that he was working at the time of submission. He indicated that his current job involved maintenance work, he started in August 2018, and he worked 20 to 40 or more hours each week. At the April 2019 VA mental health examination, the Veteran indicated that his current job as a handy man was helpful for him to bring in money. Thus, the Veteran has demonstrated that he is capable of securing and following substantially gainful employment. Additionally, VA medical opinions were provided in December 2018 regarding the functional impact of the Veteran’s psychiatric and physical disabilities. After a review of the Veteran’s medical records, neither examiner determined that the Veteran is unable to work. A VA psychologist noted that the Veteran experiences concentration issues, anxiety, and intrusive memories. The psychologist determined that the Veteran may benefit from an employment structure allows him to take breaks to decompress if his anxiety gets high, has flexibility with being around people, and allowed for repetition of new information to help with encoding and recall. Regarding the Veteran’s physical disabilities, a VA physician stated that the medical records fail to show that the Veteran would be physically limited due to his colon polyps and knee disabilities. He also stated that the Veteran’s spine disability would cause difficulty with heavy lifting, but that the Veteran should not be impaired by employment requiring light lifting, walking, or standing. Lastly, the physician stated that the Veteran should be able to tolerate sedentary work if given the opportunity to stand or change position at regular intervals. The Board finds that the Veteran is currently working, and the symptoms of his service-connected disabilities do not rise to the level of being unable to secure or follow a substantially gainful occupation. The Board notes that the combined 80 percent rating assigned incorporates the recognition of some occupational impairment, but not total impairment. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38U.S.C. §5107; 38C.F.R. §3.102. As such, entitlement to TDIU is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.