Citation Nr: 22013908 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-21 948 DATE: March 10, 2022 ORDER Entitlement to an earlier effective date for a 70 percent rating for post-traumatic stress disorder (PTSD) prior to April 26, 2019, is denied. Entitlement to an earlier effective date for a 30 percent rating for degenerative disc disease (DDD) of the cervical spine, C5-6 effective April 26, 2019, is denied. FINDINGS OF FACT 1. The Veteran's occupational and social impairment due to PTSD prior to April 26, 2019, is best summarized as occupation and social impairment with reduced reliability and productivity. 2. Prior to April 26, 2019, the Veteran's DDD of the cervical spine did not manifest forward flexion of 15 degrees or less nor favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective for a 70 percent rating for PTSD prior to April 26, 2019, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 2. The criteria for entitlement to an earlier effective for a 30 percent rating for DDD of the cervical spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army October 2002 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2019 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2021 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Earlier Effective Date An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). "[A]n increase in a veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This is the so-called one-year "look-back" period. If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28 (2000). 1. Entitlement to an earlier effective date for a 70 percent rating for PTSD prior to April 26, 2019. The Veteran contends that she should be awarded an earlier effective date for her 70 percent rating of her service-connected PTSD. A May 2019 rating decision increased the rating to 70 percent rating effective April 26, 2019. The Veteran contends that she should be awarded an effective date at least as early as March 11, 2016, which was the date she filed her claim for an increase. See March 2016 Application for Disability Compensation. During the September 2021 hearing, the Veteran testified that she experienced increased symptoms prior to filing for increased compensation in March 2016. Her current symptoms were ongoing for a couple years. The Veteran was previously awarded a 50 percent rating for her service-connected PTSD in a March 2013 rating decision. The effective date and rating of this award was not appealed. The Veteran filed for an increase on March 11, 2016. Pursuant to 38 U.S.C. § 5110, the earliest possible date of an increase is one year prior to the filing of her application which would be March 11, 2015. Therefore, the Board will consider evidence from this date forward. On March 13, 2015, the Veteran visited the Dallas VAMC for reasons not related to PTSD. However, the history and physical portion of the medical record indicated the Veteran was alert and oriented to person, place, time and situation. Hygiene was recorded as full self-care. The record lacks notations about complaint of symptoms or treatment of the disability between March 2015 to March 2016. An April 29, 2016 VA Mental Health Note recorded that the Veteran had a history of PTSD and unspecified bipolar disorder. She was last seen in October 2014. She reported depressed mood lately, low energy, sleep varied between too little or too much, alertness was best in the evening, and she naturally fell asleep towards 3 or 4 am. She felt more irritated, missed work due to low energy, felt more apathetic, had more anhedonia, and appetite fluctuated. She denied suicidal or homicidal ideation. At this time, she lived with her son and had a strained relationship with her ex-husband who was on probation and had supervised visits with the son. She worked as a home health nurse. The physician noted her appearance as normal, fair hygiene, no ataxia, no psychomotor abnormalities, alert and oriented to name, date, location, and situation. He further described her to have normal speech rate, linear thought process, depressed mood, mildly restricted affect, fair judgement, no psychosis or delusions, and cooperative. He noted that her moods were ongoing, her anxiety had increased, and her sleep problems worsened. The Veteran underwent a VA examination in April 2016. During the examination, the Veteran reported her father was deceased. Her mother shot him. Her mother is now out of prison. She has a great relationship with her mother. Some of her siblings are deceased and the rest she isn't close to. She is close to her mother's father. She has children. She is close to her daughter. Her older son tried to commit suicide by swallowing pills. She got into an altercation with him and caused marks on his neck to keep him from swallowing the pills. She had not talked to him in length since summer 2015. She was married and divorced twice. She had a couple friends from the Army that she stayed in contact with but had not made any new friends since service. She stayed at home because she didn't like being around people. She worked as a home health pediatric nurse for over five years. She described her work as "my best place...I feel very much a part of those families, they treat me very well, the kids are delightful. It's something I wanted to do ever since I was 10 years old... it's nice to have that autonomy and I don't have anyone hovering over me and it suits the fact that I don't have to be around other people." She also stated that her emotions had gotten more difficult to control over the past year. She was unmotivated, angry, and she does the bare minimum for all daily activities. She sometime burst into tears and had to sit facing the door in restaurants. She had difficulty sleeping and sometime had nightmares about combat. She avoidance others, had long periods of depressed mood not related to hormones, and increased irritability. She did not use drugs or drink alcohol regularly. The examiner noted the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner described her PTSD as occupational and social impairment with reduced reliability and productivity. During a June 2016 Primary Care visit, the Veteran reported that she had chronic insomnia, low energy, disturbed sleep, and tried several different mental health medications with adverse effects. Her nine-year-old son and ex-husband was in her life at that time but no other family or friends. She went to work but did not have any outside activities. Assessment noted the Veteran to have PTSD with depression and chronic sleep disorder. See also July 2016 Primary Care Note; September 2016 Mental Health Note (ongoing mood and sleep problems); December 2016 Mental Health Note (PTSD, MDD with ongoing depressive symptoms); March 2017 Mental Health Note (elevated irritability, poor motivation, fair relationship with son); April 2017 Addendum (poor concentration, normal speech rate, tone, and volume, fair eye contact, linear thought; doesn't care if she wakes up or not); December 2017 Primary Care Note (ongoing chronic sleep disorder). The Board acknowledges the Veteran's contention that the symptoms of her disability became severe earlier and equivalent to a 70 percent rating prior to April 26, 2019. A layperson is competent to report observable symptomatology which comes to her via her senses. See Barr v. Nicholson, 21 Vet. App. 303, 308 (U.S. 2007). However, the evidence of record does not support an earlier effective for the 70 percent rating assigned for her PTSD. Considering the period on appeal from March 2015 to April 2019, the evidence of record indicated the Veteran had ongoing issues with sleep disturbance and depressive mood. She was unmotivated, had low energy, increased irritability, and apathy about daily activities. Evidence also showed the Veteran did not have many relationships with friends and family. On the other hand, the record did not show impaired memory loss, illogical speech rate, tone, or volume, poor hygiene, issue with impulse control, irritability leading to violence, or panic attacks. The Veteran's relationship with her ex-husband and children were strained, but she had positive comments about her relationships at work. She missed some days at work due to low energy, but she was able to continue working for more than five years as a home health nurse. Although she did the bare minimum, she was able to care for herself, her young son, and be responsible for daily requirements for an adult life. Evidence did not show obsessional rituals, impaired speech, or disorientation prior to April 26, 2019. The Veteran's occupational and social impairment prior to April 26, 2019, is best summarized as occupation and social impairment with reduced reliability and productivity. Accordingly, the criteria for entitlement to an earlier effective date for a 70 percent rating for PTSD prior to April 26, 2019, have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight the evidence is persuasively against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an earlier effective date for a 30 percent rating for DDD of the cervical spine. The Veteran contends that she should be awarded an earlier effective date for her 30 percent rating for her service-connected cervical strain. During September 2021 hearing, the Veteran testified that she experienced increased symptoms prior to her filing for increased compensation in March 2016. She stated that she received Botox in her neck for years for her symptoms. Her neck symptoms got worse and her neck locked up. Without Botox, her symptoms were completely incapacitating her for days where she couldn't lift her arm, because the symptoms would be so tense. She said she was saw a neurology in Dallas for 9 to 10 years although her symptoms On March 13, 2015, the Veteran visited the Dallas VAMC for reasons not related to DDD of the cervical spine. However, the history and physical portion of the medical record indicated there was no changes in muscle pain, soreness, or joints. In an April 2015 ENT clinic note, the record showed the neck had no masses, lesions, or palpable lymph nodes. In a June 2015 Neurology Outpatient note, it was recorded that the Veteran chronic neck pain. A March 23, 2016, Emergency Room Note described the neck as supple, no adenopathy with full range of motion. The Veteran was re-evaluated for her DDD of the cervical spine in April 2016. The examination report indicated her disability was cervical strain with trapezius muscle spasm. The Veteran reported that she continued to have muscle spasms and pain. For the past several years, she received Botox injections from the Dallas VAMC neurology that helped with her neck and trapezius muscle. She described flare-ups as increased pain, spams, and stiffness. The examiner noted the February 2010 x-ray of the cervical spine was normal. The September 2010 MRI showed tiny broad based posterior disc protrusions at C3-4, C5-6 and C6-7. Physical examination revealed abnormal range of motion with forward flexion to 40 degrees, extension to 30 degrees, right lateral flexion to 40 degrees, left lateral flexion to 40 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 40 degrees. Combined range of motion was 240 degrees. Abnormal range of motion contributed to functional loss due to decreased flexibility. There was bilateral paracervical and medial trapezius muscle spasm noted during examination. There was no evidence on weight bearing, no additional loss of function or range motion after three repetitions. The examiner was unable to say without speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Guarding, localized tenderness, and muscle spasms were present but did not result in abnormal gait. There was no evidence of radiculopathy, ankylosis, or IVDS. A May 2016 Urgent Care Note recorded that the neck had no swelling bilaterally. During a June 2016 Primary Care visit, the Veteran complained of neck pain. Her last treatment with an injection was in May. Initially it helped her, but lately it was not as effective. Torticollis was bothering her on the right die and then she started having pain on the left side as well. She reported that she always had some tension but didn't get severe lock ups. See also April 2017 Addendum (increased neck pain); December 2017 Preventive Medicine Note (neck pain increased by movement). The Board acknowledges the Veteran's contention that the symptoms of her DDD of the cervical spine became severe earlier and equivalent to a 30 percent rating prior to April 26, 2019. A layperson is competent to report observable symptomatology which comes to her via her senses. See Barr v. Nicholson, 21 Vet. App. 303, 308 (U.S. 2007). However, the evidence of record does not support a finding that the Veteran's DDD of the cervical spine manifested forward flexion of the cervical spine 15 degrees or less or, favorable ankylosis of the entire cervical spine. The Veteran reported ongoing pain in her neck from time to time. However, evidence of record indicated that she maintained full range of motion and no ankylosis of the entire lumbar spine prior to April 26, 2019. Recently, the Court found in Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021), that ankylosis of the spine can be demonstrated by its functional equivalent. When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the Veteran's symptoms do not show the functional equivalent of ankylosis. Although she experienced pain and discomfort, she was able to flex and rotate her neck. At no point during the appeal period the evidence showed that her neck was in a fixed or locked position, favorable or unfavorable. Accordingly, the criteria for entitlement to an earlier effective date for a 30 percent rating for DDD of the cervical spine prior to April 26, 2019, have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.