Citation Nr: 21026644 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-22 925 DATE: May 3, 2021 ORDER A rating in excess of 20 percent for a lumbar spine disability from August 26, 2015 is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for pulmonary disability is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. Service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding the Veteran's lumbar spine disability produced forward flexion to 30 degrees or less, favorable ankylosis, or incapacitating episodes requiring physician prescribed bed rest for at least 4 weeks during a 12-month period. 2. The preponderance of the evidence supports finding the Veteran's service-connected PTSD precluded him securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to October 1974. 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability from August 26, 2015 The Veteran is assigned a 20 percent rating for lumbar spine disability from August 26, 2015. The Veteran contends entitlement to an increased rating. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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."). The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note 1 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. At an August 2015 VA examination, the Veteran reported flare-ups of the thoracolumbar spine with prolonged sitting or standing. Initial range of motion testing showed forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The clinician stated pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or with flare-ups. At a December 2016 VA examination, the Veteran described flare-ups as sharp pain in the middle of the low back. He described functional loss with lifting or standing in one space too long. Initial range of motion testing showed forward flexion to 75 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The clinician stated pain, weakness, fatigability, or incoordination would limit functional ability with repeated use over time or flare-ups, but stated he was unable to opine on the degree of functional loss without resorting to mere speculation. The clinician stated the Veteran's thoracolumbar spine impacted his ability to work because he would have difficulty with repetitive back motion. At a May 2019 VA examination, the Veteran described flare-ups of the thoracolumbar spine as intermittent radiation of pain to both legs. Initial range of motion testing showed normal range of motion. The clinician opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. The clinician opined pain would significantly limit functional ability with flare-ups, but stated he was unable to opine on the degree of functional loss without resorting to mere speculation. The clinician opined driving, lifting or carrying over 25lbs, or prolonged standing or sitting would cause additional stiffness and pain. At a March 2020 VA examination, the Veteran described flare-ups of the thoracolumbar spine as tightness in his lower back, with relief from laying or sitting. Initial range of motion testing showed forward flexion to 75 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The clinician opined pain and weakness would significantly limit functional ability with repeated use over time. He described additional range of motion loss of forward flexion to 65 degrees. The clinician opined pain and weakness would significantly limit functional ability with flare-ups. However, the clinician described no reduction in range of motion from initial range of motion testing. The clinician stated the Veteran had IVDS, not requiring bedrest prescribed by a physician. A March 2021 addendum opinion stated it was not possible to report functional impairment in terms of additional degree of limitation of motion during a flare-up without resorting to speculation. The clinician discussed the Veteran's description of functional loss during flare-ups, to include limitations of endurance for lifting, standing, pushing, and an inability to sit or stand for long periods of time due to pain and weakness. The clinician noted the March 2020 examination showed loss of range of motion to 65 degrees with repetitive motion, but those results cannot be extrapolated to a flare-up without speculation. The clinician explained the Veteran's inability to sit or stand for long periods of time during flare-ups does not necessarily involve repetitive use over time. The clinician noted those general limitations would be expected to interfere with any prolonged physical activity involving weightbearing or any sedentary activity requiring prolonged sitting. The Board finds the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine disability. To warrant a rating in excess of 20 percent, the evidence must show lumbar spine disability produced forward flexion to 30 degrees or less, favorable ankylosis, or IVDS with incapacitating episodes requiring physician prescribed bed rest for a total duration of at least 4 weeks during a 12 month period. The evidence does not support, nor has the Veteran contended, favorable ankylosis of the thoracolumbar spine or IVDS with incapacitating episodes requiring physician prescribed bed rest for a total duration of at least 4 weeks during a 12-month period. Looking to forward flexion, the preponderance of the evidence is against finding forward flexion to 30 degrees. The evidence in the claims file shows forward flexion on examination at worst to 60 degrees. See August 2015 VA examination. The Board gives probative weight to the March 2020 VA opinion that found the Veteran's forward flexion would be limited by an additional 10 degrees (to 65 degrees) after repeated use over time. The Board gives probative weight to the March 2021 addendum opinion that discussed the Veteran's description of functional limitations with a flare-up, but found it was not possible to report functional impairment in terms of additional degree of limitation of motion. The examiner considered all procurable and assembled data and explained the basis for her conclusion that a non-speculative opinion could not be offered. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). Based on the foregoing, the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine disability from August 26, 2015. 2. Entitlement to a TDIU The Veteran contends entitlement to a TDIU based on PTSD. See April 8, 2011 Application for Increased Compensation Based on Unemployability. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall 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. Id. The Veteran is service connected for posttraumatic stress disorder, rated at 70 percent. As such, he meets the schedular criteria under 38 C.F.R. § 4.16(a). Therefore, the central inquiry is whether the Veteran's service-connected PTSD alone is of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Attention should be given to whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). For the reasons that follow, the Board finds a TDIU is warranted. The Veteran's April 2011 Application for Increased Compensation Based on Unemployability stated the Veteran last worked in November 2009 as a delivery driver for Pepsi. He reported completing high school. A May 2011 Request for Employment Information from Pepsi confirmed the Veteran last worked in November 2009. Social Security Administration (SSA) disability records confirm the Veteran last worked in November 2009 and his prior work was also as a delivery driver. A June 2011 VA examination for PTSD reported symptoms of depression, low mood, minimal socialization, sleep impairment, distressing dreams, avoidance, and trouble with crowds. A February 2012 private treatment letter from a psychologist, M.C., noted the PTSD symptoms of insomnia, avoidance, severely low self-esteem, loss of concentration, low motivation, nightmares, flashbacks, panic attacks, and anxiety. The clinician noted the Veteran was preoccupied with the difficulties he experienced in Vietnam. The clinician observed moderately severe difficulty with concentration. He stated the Veteran could not be around people, to include church. He stated the Veteran had a severe inability to deal with emotions, even under ordinary stress. The clinician stated the Veteran no longer attends to personal routines or daily habits. The clinician opined the Veteran's PTSD interferes significantly with his ability to perform vocational activities and for all practical purposes is unemployable. A May 2013 private treatment letter from the same psychologist, M.C., observed increased depressive and anxiety symptoms since his evaluation in February 2012. The clinician stated the Veteran exhibits severe symptoms of PTSD including insomnia, problems with attentiveness, difficulties with concentration, severe problems with preoccupation, an unwillingness or inability to reveal softer loving feelings, problems with attempting social relationships, complete loss of libido, sense of non-belonging, and problems with social adaptation and ability to render appropriate judgments. The clinician stated based on these symptoms and his observations during the examination, he unequivocally opined the Veteran could not perform any type of gainful employment. Specifically, the examiner stated his low concentration and attentiveness would make it difficult to complete a project. He stated his ability to govern his emotions, even under ordinary stress, is severely impaired. He opined the Veteran's ability to relate to others was severely diminished and he was not capable of even a minimal amount of emotional bonding with others. An August 2015 VA examination for PTSD noted the symptoms of recurrent flashbacks, avoidance, persistent negative expectations, markedly diminished interest in activities, feelings of detachment from others, irritable behavior, hypervigilance, exaggerated startled response, problems with concentration, sleep disturbance, anxiety, flattened affect, disturbances in motivation and mood, and difficulty establishing and maintaining effective work and social relationships. A July 2020 VA examination for PTSD noted the symptoms of irritable behavior and angry outbursts with little or no provocation, hypervigilance, exaggerated startled response, problems with concentration, sleep disturbance, depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function, impairment of memory, flattened affect, disturbances of motivation and mood, inability to establish and maintain effective relationships, impaired impulse control, and neglect of personal appearance and hygiene. A July 2020 VA individual unemployability statement found that due to the Veteran's PTSD, he would have difficulty attending to or is easily distracted at the task at hand, difficulty maintaining concentration and focus on work over a period of time, intrusive thoughts which interfere with the ability to stay focused on the task at hand, significant difficulty accepting supervision or receiving instructions without becoming angry, significant difficulty remembering instructions and details of work assignments, significant difficulty functioning around other people, difficulty functioning as a team member, feeling uncomfortable around others, and being so depressed that he has difficulty sustaining energy and motivation to complete assignments at work. The clinician noted other mental health problems or symptoms that interfere significantly with the ability to work, to include panic attacks daily, irritability with anger outbursts, highly suspicious of others, and does not tolerate other opinions, often resulting in verbal outbursts then avoidance. The Board finds the Veteran's ability to secure and follow a substantially gainful occupation is greatly impacted by the mental effects of his PTSD. The Board gives probative weight to the Veteran's lay statements describing the nature, frequency, and severity of his psychological symptoms. The Board gives probative weight to the February 2012 and May 2013 private treatment opinions that the Veteran's PTSD renders him unemployable. The Board gives probative weight to the July 2020 VA individual unemployability statement that discussed specific mental effects of the Veteran's PTSD would impact his ability to work. Considering the above-mentioned probative evidence, the Board finds the Veteran's service-connected PTSD would preclude him securing or following a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. Service connection for a pulmonary disability The Veteran contends his pulmonary disability is secondary to smoking, which is secondary to PTSD. See November 2020 attorney brief. When secondary service connection for disability due to smoking is at issue, VA must determine (1) whether the service-connected disability caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would have occurred but for the use of tobacco products caused by the service-connected disability. A medical opinion is needed to address this issue. 2. Service connection for OSA The Veteran contends his OSA is secondary to obesity/weight gain, which is secondary to his service-connected disabilities. Specifically, the Veteran contends his PTSD and lumbar spine disability affect his ability to exercise and eat properly, which caused him to gain weight. See November 2020 attorney brief. With respect to claims for obesity-related disabilities, obesity cannot be service connected on a direct basis, but may serve as an intermediate step between a service-connected disability and a condition claimed on a secondary basis. VAOPGCPREC 1-2017. To decide such claims, the analysis involves addressing: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether obesity, as a result of the service-connected disability, was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. Id. A March 2021 VA medical opinion but did not address the Veteran's contention that his PTSD and lumbar spine disability affect his ability to exercise and eat properly, which caused him to gain weight. An addendum opinion is needed to address the Veteran's contention. 3. Service connection for GERD A December 2020 Board remand requested an opinion as to whether the Veteran's GERD was caused or aggravated by his service-connected PTSD, to include whether the Veteran's history of alcohol abuse is related to his PTSD. See Allen v. Principi, 237 F. 3d 1368, 1381 (Fed. Cir. 2001). A March 2021 VA medical opinion found it was at least as likely as not the Veteran's GERD was at least partly due to his longstanding history of alcohol abuse. However, the opinion failed to address whether the Veteran's history of alcohol abuse was secondary to his service-connected PTSD. A medical opinion is needed to address this issue. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding the Veteran's pulmonary disability. The questions may need to be answered by different clinicians. (a.) Is it at least as likely as not the Veteran's PTSD caused or aggravated his use of tobacco products after service? (b.) If so, is it at least as likely as not his use of tobacco products after service was a substantial factor in causing his pulmonary disability? (c.) If so, is it at least as likely as not his pulmonary disability would not have occurred but for his use of tobacco products after service? The clinician should consider the article cited in the November 2020 attorney brief, "Smoking and mental illness: results from population surveys in Australia and the United States." 2. Obtain a medical opinion from an appropriate clinician regarding the Veteran's OSA. The questions may need to be answered by different clinicians. (a.) Is it at least as likely as not the Veteran's service-connected disabilities caused or aggravated his obesity? The clinician must consider the Veteran's contention that his PTSD and lumbar spine disability affect his ability to exercise and eat properly, which caused him to gain weight. (b.) If so, is it at least as likely as not such obesity or aggravation of obesity was a substantial factor in causing his OSA? (c.) If so, is it at least as likely as not OSA would not have occurred but for such obesity? The clinician should consider the articles cited to in the November 2020 attorney brief, "Sleep Disorders and Associated Medical Comorbidities in Active Duty Military Personnel" and "Trauma and Sleep Disorders" and the article cited to in the August 2020 attorney brief, "PTSD Predicts Future Weight Change in the Millennium Cohort Study." 3. Obtain a medical opinion from an appropriate clinician regarding whether the Veteran's history of alcohol abuse was (i) caused or (ii) aggravated by his service-connected PTSD? The clinician should consider the articles cited to in the February 2016 attorney brief, "PTSD and Problems with Alcohol Use," "Stress and Substance Abuse," "Trauma and the Vietnam War Generation," and "Substance Use Disorders in Patients with PTSD." KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.