Citation Nr: 21024182 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-19 206 DATE: April 22, 2021 ORDER Service connection for traumatic brain injury (TBI) is denied. Service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. A rating higher than 20 percent prior to October 5, 2020, and higher than 40 percent thereafter for a lumbar spine disorder is denied. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a diagnosed TBI. 2. The Veteran has a diagnosis of PTSD that is attributable to his active service. 3. Prior to October 5, 2020, the Veteran’s lumbar spine did not show forward flexion to 30 degrees or less; ankylosis was not shown at any time. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 3. The criteria for a rating higher than 20 percent prior to October 5, 2020, and higher than 40 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1993 to October 1993 and from February 1994 to July 1999. In February 2020, the Veteran testified at a hearing before the undersigned Veterans’ Law Judge. A copy of the transcript is associated with the record. In April 2020, the Board remanded these matters. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. TBI Based on the evidence of record, the Board concludes that the Veteran does not have a current diagnosis of TBI and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records (STRs) show that he sustained a concussion while in-service. See December 1995 STR. There is no indication that the Veteran received follow-up care or that his concussion symptoms continued – he has no further in-service treatment for the concussion or concussive symptoms. His January 1999 separation examination noted no history of TBI, and he denied a head injury in his January 1999 report of medical history. The Veteran’s VA medical records do show that he previously complained of and notes a past history of TBI. He also testified to a head injury in his February 2020 hearing. However, a December 2010 VA record showed the Veteran denied any history of head injury. Thus, the indication of a TBI in the Veteran’s VA medical records appears to be the Veteran’s reported history of having a TBI and not an independent diagnosis of a TBI by a qualified medical professional. A VA examination in October 2020 did not find that the Veteran had a TBI. The examiner noted the Veteran’s in-service concussion, but also noted that the Veteran’s concussion resolved. Thus, there is no evidence of record which showed that the Veteran has a diagnosed TBI or that the Veteran’s reported history of a TBI is a disability which amounts to an independent functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). While the Board acknowledges the Veteran’s statements regarding in-service head injury, including his February 2020 hearing testimony and his belief that he suffered a TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377, n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence which includes medical records and VA examination reports which do not show independent diagnosis of a TBI. Additionally, neither the Veteran nor his representative have identified any evidence of record which indicates that the Veteran has been clinically diagnosed with a TBI at any time. Therefore, the preponderance of the evidence is against the granting of service connection for a TBI. There is no doubt or reasonable doubt to resolve to the Veteran's benefit or in his favor. Thus, the claim for service connection for a TBI is denied. PTSD Service connection for an acquired psychiatric disorder, including PTSD, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304. A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. § 4.125. 38 C.F.R. § 3.304(3) specifically states that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). In this matter, the Veteran's VA medical center (VAMC) care indicated he has been diagnosed with PTSD, has been on medication, and also received in-patient treatment for PTSD. See May and June 2014, October 2015, and February and March 2017 VAMC mental health treatment notes. Additionally, the Veteran's claims file contains years of mental health treatment records which show his diagnosis of and treatment for PTSD at VA medical centers. Of specific importance to the Board is the findings that the Veteran’s claimed in-service stressors were sufficient to support a diagnosis of PTSD. See June 2014 VA examination. Based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that the records supports a finding that that the Veteran has diagnosis of and treatment by a VA psychiatrist or psychologist of PTSD due to a stressor which was adequate to support a diagnosis of PTSD. Therefore, based on this evidentiary posture, the Board finds that the evidence supports a finding that the Veteran has PTSD that is at least as likely as not related to his active service. §3.304(f)(3). Though the Board notes that the Veteran's VA examinations indicated that he does not have a PTSD diagnosis which meets the DSM-5 criteria, the Board affords the Veteran's VA medical center PTSD treatment and prescribed medication greater weight. The Board notes that the Veteran had previously asserted claims for other acquired psychiatric disorders. However, to the extent that the Veteran has asserted claims for other psychiatric disorders, including anxiety or a depressive disorder, the Board finds that symptoms of any other disorders are part of the PTSD claim granted herein. 38 C.F.R. § 4.130. Accordingly, and resolving all doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Lumbar Spine The Veteran’s lumbar spine is assigned a 20 percent rating prior to October 5, 2020, and a 40 percent rating thereafter pursuant to DC 5242. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021; however, DC 5242 was not subject to the 2021 revisions. DC 5242 assigns a 40 percent rating 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 rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. At the outset, the Board notes that there are no records of evidence which indicate that the Veteran’s lumbar spine had ankylosis of any degree, therefore, a rating higher than 40 percent is inapplicable at any time. A rating higher than 20 percent requires evidence of forward flexion limited to 30 degrees or less. After review of the record, the Board finds that the evidence does not support a rating higher than 20 percent prior to October 5, 2020. There are no records which evidence that the Veteran’s lumbar spine had forward flexion limited to 30 degrees or less prior to his October 2020 VA examination. VA examinations prior to the Veteran’s October 2020 examination showed that his forward flexion was, at worst, to 50 degrees. See June 2014 VA examination. Though the examinations document the Veteran’s complaints of pain and note his report of flare-ups, there is no indication that the Veteran’s range of motion was further limited to an approximation of 30 degrees or less of forward flexion. The Board has considered the lay statements of evidence, including the Veteran’s February 2020 hearing testimony, regarding the Veteran’s lumbar spine disability and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. Even considering the Veteran’s credible reports of pain and flare-ups, medical records of evidence do not show that his lumbar spine flexion more closely approximated a limitation to 30 degrees or less and neither the Veteran nor his representative have identified any such evidence in the record. There is no doubt or reasonable doubt to resolve to the Veteran's benefit or in his favor as the evidence of record does not support a higher rating. Thus, the claim for a rating higher than 20 percent prior to October 5, 2020, and higher than 40 percent thereafter for a lumbar spine disability is denied. REASONS FOR REMAND TDIU The Veteran has a 50 percent rating for plantar fasciitis and 30 percent rating for headaches as well as multiple other service connected disabilities, including his lumbar spine disability, cervical strain, bilateral lower extremity radiculopathy, and TMJ. Hence, the Veteran meets the criteria for a schedular TDIU rating per 38 C.F.R. § 4.16(a). After review of the record, the Board finds it likely the Veteran’s service connected disabilities have prohibited and continue to prohibit the Veteran from maintaining substantially gainful employment. However, as the Board has granted service connection for PTSD, above, the TDIU issue may be affected by the assignment of the disability rating and effective date for that grant of service connection. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: After the RO has assigned a disability rating and effective date for the grant of service connection for PTSD and completing any other development necessary, readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.