Citation Nr: 22015445 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 11-09 282 DATE: March 17, 2022 ORDER A 20 percent rating, but no higher, for degenerative disc and joint disease of the lumbar spine with lumbar sprain (hereinafter, lumbar spine disability) prior to March 23, 2017 is granted. A 70 percent rating, but no higher, for dysthymic disorder prior to November 18, 2021 is granted. FINDINGS OF FACT 1. Throughout the course of the Veteran's appeal, his lumbar spine disability more closely approximated flexion greater than 30 degrees, but not greater than 60 degrees or muscle spasm or guarding severe enough to result in an abnormal gait; flexion limited to 30 degrees or less or ankylosis was not shown. 2. Throughout the course of the Veteran's appeal, his dysthymic disorder more closely approximated occupational and social impairment, with deficiencies in most areas; total occupational and social impairment have not been shown. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for lumbar spine disability prior to March 23, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237-5243. 2. The criteria for a 70 percent rating for dysthymic disorder prior to November 18, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2007 to June 2009. This case has a long procedural history which includes a prior Board Decision, an Order of the United States Court of Appeals for Veterans Claims (Court) which vacated the Board's Decision, in part, pursuant to a Joint Motion for Partial Remand, and multiple Board Remands, the most recent occurring in September 2021. Increased Rating 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 Disability The Veteran's lumbar spine was assigned a 10 percent rating as of his June 2009 grant of service connection and a 20 percent rating as of a March 2017 VA examination, pursuant to the General Rating Formula for the Spine, DCs 5237-5243. Under that formula, a 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 where there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is available for unfavorable ankylosis of the entire spine. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. However, under either rating criteria, any rating assigned due to IVDS is predicated upon an incapacitating episode, which is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. As there are no indication in the Veteran's claims file that he has had any incapacitating episodes, his lumbar spine disability will be evaluated General Rating Formula for Diseases and Injuries of the Spine, DC 5237. After review of the record, the Board finds that a 20 percent rating, but no higher, throughout the appeal period is warranted. The Veteran's range of motion for his lumbar spine was not found to meet the criteria for a 20 percent rating prior to March 2017. However, the Board finds that the functional impact of the Veteran's lumbar spine pain warrants a 20 percent rating throughout. An August 2009 private medical record showed that the Veteran had lumbar spine pain which resulted in trigger point injections. In his July 2010 VA examination, the Veteran discussed flare-ups which occurred every day and impacted his ability for prolonged walking and sitting. He was found to have decreased motion, stiffness, weakness, spasm, and moderate daily spine pain. The Veteran stated that his back pain impacted his ability to perform daily tasks, exercise, walk, sit, or stand, and prohibited him from doing sports. VA medical records from 2014 reported an increase in the Veteran's lumbar spine pain and a difficulty with a tandem gait. The Board find that these functional limitations are comparable with that of a limitation of flexion from 60 to 30 degrees or muscle spasm or guarding severe enough to result in an abnormal gait, supporting a 20 percent rating. However, there is no evidence of record which supports a rating higher than 20 percent. The rating criteria contemplate a limitation of flexion to 30 degrees or less to warrant a rating higher than 20 percent. The Veteran's records show that his at worst forward flexion was to 40 degrees, which contemplated his limitations during a flare-up. Even taking the Veteran's lay statements into consideration, the Board is unable to find that a limitation of flexion to 30 degrees or less is more closely approximated by the Veteran's lumbar spine. His 2021 VA examination reported his functional loss as an inability to drive a truck or sit for a long period of time. The Veteran did not report further limitations due to pain or flare-ups which approximate a reduction in flexion to 30 degrees or less. Additionally, ankylosis has not been shown or reported at any time during the course of the Veteran's appeal. Thus, the record does not support a rating higher than 20 percent for the Veteran's lumbar spine disability. The Board has considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. Furthermore, the Board notes that the Veteran has been service connected for the neurological abnormalities associated with his lumbar spine disability. In sum, a 20 percent rating, but no higher, for his lumbar spine disability throughout the course of the Veteran's appeal is warranted. Dysthymic Disorder The Veteran's dysthymic disorder was assigned a 10 percent rating as of his June 2009 grant of service connection and a 70 percent rating as of a November 2021 VA examination pursuant to the General Rating Formula for Mental Disorders, DC 9440. That rating criteria provides that 30 percent evaluation is warranted when there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms 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 for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated where there is 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; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the Board notes that if the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this matter, after review of the record and in consideration of the lay statements regarding the Veteran's mental health symptomology, the Board finds that a 70 percent rating throughout the Veteran's appeal is warranted for his dysthymic disorder. In so finding the Board notes that records in 2010 reported the Veteran's homelessness, married but separated status, unemployed status, depressed mood, sleep disturbance, low energy, lack of motivation, and self-isolative behaviors. A December 2011 private examination endorsed symptoms of depression, emotional instability, which reduced the Veteran's reliability, productivity, contributed to an isolated lifestyle, and cause an inability to develop social relationships, make irrational life decisions, and maintain gainful employment. A February 2013 VA examination noted the Veteran's difficulty in establishing effective work and social relationships, persistent delusions or hallucinations, and neglect of personal hygiene. The Veteran also reported suicidal ideation. A July 2016 VA examination noted irritable and violent outbursts including the Veteran bringing a weapon to treatment sessions and attempting to intimidate health care providers. VA medical records show the Veteran went through periods of incarceration, lack of orientation to situation, and poor insight and judgment. The Veteran has submitted lay statements which report on his continued suicidal ideation and the impact his diagnosed mental health disability has had upon is occupational and social functioning. Thus, looking at the Veteran's disability picture as a whole and in consideration of the overall impact his dysthymic disorder has had upon his functional ability, the Board finds that 70 percent rating, but no higher, for the Veteran's dysthymic disorder is warranted for the entire period on appeal. The evidence does not show, and the Veteran has not endorsed, persistent and continued symptomology which meets the occupational and social limitations such that a 100 percent rating is warranted. Though the Veteran endorsed persistent hallucinations and delusions in his 2013 examination and disorientation to time or place in his November 2021 VA examination, there is no evidence, including the Veteran's own endorsement of his symptoms, which shows that such symptoms were continuously present for any period of time such to render the Veteran totally occupationally and socially impaired. Specifically, the Board notes that a November 2021 VA examination did not find that such severity of symptoms to render the Veteran totally occupationally and socially impaired. Thus, the criteria for a 100 percent rating for dysthymic disorder have not been met. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.