Citation Nr: 21024034 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-06 547 DATE: April 21, 2021 ORDER An initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) with dysthymic disorder is denied. For the period of the claim prior to January 15, 2020, an initial rating higher than 10 percent for the thoracolumbar spine disability is denied. A 40 percent rating for the thoracolumbar spine disability is granted effective January 15, 2020. FINDINGS OF FACT 1. The Veteran’s PTSD with dysthymic disorder was not manifested by total social impairment at any time during the appeal period. 2. For the period of the claim prior to January 15, 2020, the Veteran’s thoraco-lumbar spine disability was not manifested by flexion of 60 degrees or less; or, a combined range of motion 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; or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 3. The Veteran was only able to achieve 10 degrees of flexion and was unable to extend, laterally flex, or laterally bend during the VA examination conducted on January 15, 2020; the examiner reported that weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 70 percent for PTSD with dysthymic disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. For the period of the claim prior to January 15, 2020, the criteria for an initial rating higher than 10 percent for the thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for a 40 percent rating, and no higher, have been met for the thoracolumbar spine disability effective January 15, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in November 2009. The Veteran and his wife testified at a personal hearing before the undersigned Veterans Law Judge in April 2017. A transcript is of record. The claims were remanded by the Board in July 2017 and September 2019. The Veteran died in September 2020 and the appellant, who is the Veteran’s surviving spouse, was granted substitution as the claimant in this appeal due to the death of the Veteran. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. An initial rating higher than 70 percent for PTSD with dysthymic disorder Service connection was established for PTSD with dysthymic disorder in the November 2009 rating decision that is the subject of this appeal. A 30 percent rating was assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective September 28, 2007. The rating was increased to 70 percent with the same effective date in an August 2018 rating decision. 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). The issue in this appeal is whether prior to his death, the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. 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. 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. 38 C.F.R. § 4.130. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Id. The non-medical evidence in this case, to include the testimony provided at the April 2017 Board hearing, only addresses the issue of whether an initial rating higher than 30 percent was warranted for the PTSD with dysthymic disorder. The Veteran continued the appeal after an initial 70 percent rating was assigned in the August 2018 rating decision, but he did not submit any statements in support of his claim prior to his death and the brief submitted by his representative in July 2019 does not provide specific argument as to why he was entitled to an initial rating higher than 70 percent for his PTSD with dysthymic disorder. The medical evidence in this case consists of several VA examination reports and VA treatment records. The Board notes that a November 2018 VA record indicates that the Veteran had not had any contact in Mental Health Services within the past 24 months or more and that his last contact with his mental health provider was May 31, 2016. It was also noted that since it appeared, he had been doing well with regards to his mental health, he was being discharged from the Mental Health Clinic to his primary care provider, who would manage/monitor his mental health needs. The medical evidence does not support the assignment of an initial rating higher than 70 percent for PTSD with dysthymic disorder at any time during the appeal period. More specifically, while the Veteran did not work at any time during the appeal period and was in receipt of a total disability rating based on individual unemployability (TDIU) during the entire appeal period, the evidence does not support a finding that he was totally impaired in the social sense. The Board acknowledges that the Veteran and his wife had marital troubles and that he had a strained relationship with his son, who, with his daughter, was living with the Veteran and his wife for the period of the appeal when the Veteran was not living in the VA Community Living Center/nursing home. It was also noted during the 2009 VA examination that his psychiatric symptoms negatively affected his relationships with his wife and son. During that examination, however, it was reported that the Veteran was able to get along fairly well with others, had maintained good relationships with members of the Eagles fraternity, an organization he had been involved with since retirement that provided him work and social activities, and that he had some long-term friendships. In addition, although his relationship with his wife appears to have been rocky and she frequently reported that he was verbally abusive, the fact remains that they had been married since January 1969 and that his wife regularly visited the Veteran on his VA facility unit and contributed to his well-being by washing clothes and taking him on weekend passes with their son. Additionally, the medical evidence indicates that the Veteran was not estranged from his children, grandchildren, or siblings; that he was able to go on several vacations during the period on appeal; and that he participated in PTSD group therapy for several years (from 2008-2013), though it was ultimately decided that group therapy was not appropriate for him due to his disruptions. The Veteran also attended an adult day health care program at times during the appeal and was a very active participant in VA recreational therapy on his residential unit, which included games (bingo, dominoes, hidden objects games, brain games, boccia, trivia, table top games, Wii games, a family feud game show activity, and card games); movie showings; pumpkin decorating and a Halloween celebration; cognitive social group; unit cookouts; creative arts group; morning socials; and a history presentation. The Board acknowledges that the Veteran was admitted to the VA Community Living Center/nursing home on September 27, 2016, for what was to be a short term stay while his wife recuperated from a wrist fracture, but that they decided it was best for the Veteran to remain for long term care because he had been living at home with his wife and adult son with help from VA Home Health Aide services and attending Adult Day Health Care (ADHC) sporadically prior to admission, but had often not been compliant with attending ADHC where he needed to go for showering and was not compliant with his medical regimen or hygiene at home. While this fits the criteria for intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), the medical evidence of record indicates it was factors other than the Veteran’s PTSD, to include his morbid obesity, that resulted in impairment of his ability to perform such activities. In addition to the evidence that shows that the Veteran’s social connections were problematic and limited, but not nonexistent, there is no evidence the Veteran had gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; disorientation to time or place; or memory loss for names of close relatives, own occupation or name. Rather, the November 2009 VA examiner reported that the Veteran was fairly groomed; alert and oriented; had grossly intact memory; had good concentration, abstract thinking, insight and judgment; and had coherent, linear, and goal-directed thought process. While he was initially suspicious and mildly irritable, he warmed throughout the interview; while his affect was restricted and nonlabile, it was appropriate. The Veteran also denied suicidal and homicidal ideation and there was no evidence of obsessions or psychotic symptoms. The April 2016 VA examiner reported that the Veteran arrived on time and exhibited sparse speech, though it was normal in rate, tone, and volume and was logical and coherent in content; slowed thought processes, though it was linear and organized; and dysphoric mood and restricted affect, though mood was calm and affect was congruent to mood. There was also no overt indication of serious thought dysfunction and the Veteran denied suicidal and homicidal ideation, mania/hypomania, and psychotic symptoms. The September 2017 VA examiner reported that the Veteran arrived early for his scheduled examination and presented as morbidly obese bound to a motorized wheelchair. He exhibited poor grooming and hygiene, smelling slightly of urine, which he explained was because he had used the restroom but had difficulty cleaning himself and a nurse was called but had not arrived at the time of the interview. The Veteran’s manner of interaction was pleasant and cooperative. His speech was normal in rate, rhythm, tone, and volume. Thought processes were generally linear and logical and goal-directed, but the Veteran evidenced cognitive deficits. The Veteran denied suicidal and homicidal ideation. A mini mental state examination was conducted and the Veteran was oriented to year, season, and month, but disoriented to day of the month, and day of the week. He was able to correctly identify the state, county, city, hospital, and floor. The Veteran was unable to perform serial sevens nor could he spell world forward. He recalled two of three words after a five-minute delay. He was able to name to simple objects but unable to report people, the phrase “no ifs, and, or buts.” He was able to complete a simple series of instructions, follow a simple instruction, and makeup a sentence. He was unable to copy a diagram accurately. His total score was reflective of mild cognitive impairment. The examiner concluded that the Veteran had likely declined in his ability to function in social and occupational settings, but the change in his functioning from the time of the prior examination was more likely than not due to nonservice connected conditions and that the underlying PTSD symptoms had not changed appreciably. In sum, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximated the symptoms contemplated by a 70 percent rating. The preponderance of the evidence does not show symptomatology which more nearly approximates total social and occupational impairment. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. An initial rating higher than 10 percent for the thoracolumbar spine disability Service connection for the thoracolumbar spine disability was granted in the November 2009 rating decision that is the subject of this appeal, which assigned an initial rating of 10 percent effective September 28, 2007. The Veteran sought a higher initial rating prior to his death, reporting that he had difficulty walking more than a few yards without pain, needed to use a cane, was unable to do yard work, and was limited in his driving. The Veteran and his wife testified that he always had aches and pains and that they had had to try numerous beds because he had trouble lying flat and complained of stiffness and soreness. He had slept in a strange bed the night before the hearing and woke up with pain, though it happened frequently even when the bed was not strange. The Veteran and his wife testified that most of the beds he used most frequently, to include a bed at the house that VA had bought, had air mattresses on them and that his head was lifted. The Veteran testified that when his back started to hurt he could hardly breathe; that he had very limited motion; that he had flareups about once a week, though it had been two to three times a week prior to the hearing; that sitting in cars and his motorized scooter was uncomfortable but he did not qualify for an air mattress for the seat; that his back was fatigued easily; that he could not stand up any more than 10 minutes at the most; that he had spasms when getting up from his scooter to walk; and that his legs will go numb when he uses the bathroom and that it is hard to get him back up and to his feet then because of being wobbly from the numbness. In a July 2019 brief, the Veteran’s representative reported that he had ongoing, worsening symptoms of painful motion; functional loss due to weakness, fatigability, incoordination or pain on movement; and limitation of motion due to pain on use, including use during flare-ups. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings in excess of 10 percent pertinent to the thoracolumbar spine are provided 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 (20 percent); forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Id. at Note (5). Note (2) of the General Rating Formula provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, IVDS can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. Upon consideration of the evidence and resolving all doubt in favor of the Veteran, the Board finds a 40 percent rating is warranted for the thoracolumbar spine disability effective January 15, 2020, the date of the VA examination during which the Veteran was only able to forward flex to 10 degrees and was unable to extend, laterally flex, or laterally bend. The VA examiner also reported that weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time but that repetitive testing was not completed because the Veteran was not physically able to do range of motion and the examiner was concerned for his safety. While the Board acknowledges that the VA examiner specifically noted that the Veteran’s morbid obesity made it hard for him to meet the examination requirements because he was not able to stand independently, was not able to stand longer than 30 seconds with assistance without swaying, and had decreased muscle strength due to his weight rather than his back, the Board concludes that these findings more nearly approximate the criteria for a 40 percent rating under the General Rating Formula effective January 15, 2020. A rating higher than 40 percent is not warranted as of that date in the absence of unfavorable ankylosis of the entire thoracolumbar spine or evidence of the functional equivalent of ankylosis during flare-ups to support a rating higher than 40 percent. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *4 ) (Apr. 16, 2021). The preponderance of the evidence of record does not support the assignment of an initial rating higher than 10 percent for the thoracolumbar spine disability at any time prior to January 15, 2020. To merit the assignment of the next highest (20 percent) rating under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine 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 an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The evidence in this case does not show any of these manifestations. Rather, the Veteran’s thoracolumbar spine exhibited forward flexion limited, at worst, to 75 degrees during the April 2016 VA examination; and the combined range of motion of the thoracolumbar spine was, at worst, 165 degrees, during the same examination, which is 45 degrees more than normal. The Board acknowledges the Veteran’s report of muscle spasm during his Board hearing, as well as the fact that a May 2010 x-ray showed rotoscoliosis of the lower dorsal and upper lumbar spine with a convexity to the left and kyphosis was reported in VA treatment records dated in September 2014, February 2015 and October 2015; however, there is no evidence these findings were the result of the subjectively reported muscle spasm or guarding. See VA treatment records; VA examination reports. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected thoracolumbar spine disability prior to January 15, 2020. The Board acknowledges the Veteran’s subjective complaints made in written statements, during testimony, and during the VA examinations, when he reported functional loss/impairment as a result of his thoracolumbar spine disability because of difficulty walking without pain; and a constant, dull ache that worsens if he sat or stood in one place for long or bent over. The Board also acknowledges the objective evidence during the May 2010 VA examination of painful motion and tenderness overlying the mid lumbar region. In this case, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating. The Veteran has described functional limitations which are contemplated in the rating criteria, and the Veteran himself has not described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (20 percent) rating. Moreover, the Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after repetition during the May 2010 and April 2016 VA examinations, with the May 2016 examiner reporting that movements were restricted by the Veteran being overweight (414 pounds). Nor is the assignment of an initial rating higher than 10 percent for the Veteran’s thoracolumbar spine disability warranted under the IVDS Formula prior to January 15, 2020. This is so because there is no evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In fact, the April 2016 VA examiner indicated that the Veteran does not have IVDS involving the thoracolumbar spine. The Board has also considered whether the Veteran’s service-connected thoracolumbar spine disability manifested any associated objective neurologic abnormalities at any time during the appeal period. The Veteran was service-connected for peripheral neuropathy of both lower extremities secondary to his service-connected type II diabetes mellitus. The April 2016 VA examiner concluded that the Veteran did not have any complaints to suggest radiculopathy, noting that he was already service connected for diabetes induced peripheral neuropathy such that muscle strength, nerve and reflex testing was not done. While the Veteran exhibited abnormal muscle strength, reflexes and sensation during the January 2020 VA examination, the examiner concluded that abnormal muscle strength and sensory exam findings were not related to his claimed back condition and that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. References to urinary incontinence made in VA treatment records were noted in September 2017 and December 2017, with the latter record indicating that the Veteran had been continent of bladder and bowel functions but could not make it to the bathroom in time due to body size and mobility impairment such that he had a history of urinating on the floor in his room and had been wearing bariatric size adult briefs, which did not eliminate the episodes of urinary incontinence. In other words, urinary incontinence was not a neurological problem due to the Veteran’s thoracolumbar spine disability, but rather a problem resulting from the Veteran’s morbid obesity and restricted movement due to that obesity. Based on the foregoing, the Board finds that the record does not reflect any neurological disabilities associated with the thoracolumbar spine disability to warrant a separate rating. In sum, the evidence supports the assignment of a 40 percent rating for the thoraco-lumbar spine disability as of January 15, 2020, but is against the assignment of an initial rating higher than 10 percent during the period of the claim prior to January 15, 2020. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.