Citation Nr: 22015683 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 15-27 521 DATE: March 18, 2022 ORDER A disability rating in excess of 70 percent for an acquired psychiatric disorder, diagnosed as major depressive disorder (MDD) is denied. A disability rating of 20 percent for degenerative joint disease (DJD) of the lumbar spine is denied. REMANDED A total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran served on active duty from February 1998 to July 2002, and from November 2004 to December 2006. 2. MDD is manifested by symptoms of anxiety, suspiciousness, depression, suicidal ideations, and sleep impairment; objective findings show occupational and social impairment with deficiencies in most areas. 3. DJD of the lumbar spine has been manifested by subjective complaints of flare-ups of back pain, positional discomfort, and back pain that affected sleep and driving; objective findings included no ankylosis, incapacitating episodes of IVDS, or forward flexion limited to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.310, Diagnostic Code (DC) 9434 (2021). 2. The criteria for a disability rating in excess of 20 percent for DJD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.7, 4.71a, DCs 5242-5243 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was previously remanded by the Board in April 2019. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271. Importantly, at the time of the April 2019 Board decision, the propriety of a reduction of the Veteran's 20 percent rating to 10 percent for the lumbar spine was on appeal. Since that time, his rating has been restored to 20 percent disabling. Thus, the issue on appeal considers only his entitlement to a disability rating in excess of 20 percent for his lumbar spine disability, and the Board has limited its consideration accordingly. Increased Rating Claims Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. MDD In addition to the regulations outlined above, acquired psychiatric disorders, including MDD, are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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, an intermittent inability to perform activities of daily living (including maintaining minimum personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the evidence, at May 2013 VA examination, the Veteran reported symptoms of depression, anxiety, suspiciousness, near continuous panic, flattened affect, impaired judgment, disturbances in motivation and mood, difficulty in establishing relationships or adapting to stressful circumstances, and suicidal ideations. The examiner found that met the criteria for diagnoses of posttraumatic stress disorder (PTSD) and MDD. The examiner noted that he was re-experiencing trauma through intrusive thoughts and nightmares, which caused him to be avoidant of many things. He was also in a low mood for most of the day with chronic feelings of guilt, hopelessness, irritability, anger outbursts, and recurring suicidal ideation without any intent or pain. He was also noted to avoid social interactions and have marked trouble falling and staying asleep. The Veteran reported at that time that he had never been married and did not have children. He noted that his longest relationship lasted one year, and that he currently lived alone. He also stated that he began working various fast food jobs prior to the military, that he did not graduate form high school, and that his last job was in 2009 where he only worked for one month at a candle shop. He reported later obtaining a GED and that he was obtaining an associate's degree, but that he did not believe he would be able to complete it because he had failed classes several times. He reported that some days he could sleep up to sixteen hours and still feel not rested, and others he could sleep no more than one hour per night due to nightmares and intrusive thoughts. He also noted that he experienced anxiety attacks a couple of times per week, with a general low level anxiety which is ever present. He noted that his depression often presented as irritability and that small stressors had a huge impact on him which caused him to shut down and isolate. He stated that he had attempted suicide twice, but that once was a child, and another time when he was in the Navy. He noted that currently, he thought about suicide daily, but denied any intent or plan due to his religious faith. He also reported significant problems with authority which caused many issues with any supervisor. The examiner noted that the Veteran had good personal hygiene, that he was oriented to person, place, and time, and that his speech was normal. His thought processes were logical and coherent without evidence of delusions or obsessions. He was able to manage activities daily living, including cleaning, laundry, cooking, making repairs and running errands, with the exception of the occasional severe depressive episode where he did not leave bed. He was also able to manage his finances, drive, and handle his medication. The examiner found that his psychiatric disorder manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. At a May 2015 VA examination, he was diagnosed with severe, recurrent MDD. The Veteran reported that his living situation had not changed since the prior examination, with the exception of adding a roommate for the preceding four months. He denied being in a romantic relationship and noted that he maintained contact with some of his sisters and his mother. He denied having any close friends or people with whom he spent any significant time. He reported enjoyment in going up to the mountains and cooking but denied any involvement in community activities or having an organized religion. He reported that he was not working and had not been since the last evaluation, and that he also stopped attending classes with no plans to return. He stated that his current stress level was a six out of ten, and that he was feeling nervous or anxious every day, about six panic attacks a week, along with increased sweating and irritability. He noted that he was very suspicious of others, avoidant of large groups, and that he liked to be by himself. He noted that he had some memory problems over the past two years with retaining information he had recently learned. He reported hallucinations which he described as memories of things that happened in the military and before, as well as visions of dreams that seemed very realistic. He said that his current mood was sad and depressed, and that he had a lot of anger. He endorsed thoughts of suicide frequently, stating that he also thought about plans or methods, but denied intent or likelihood that he would follow through with an attempt. He also denied any homicidal intent, or self-harm in the preceding two years. He reported that he slept anywhere between three to five hours per night, depending on his nightmares and back pain. He also noted that he got arrested at a bar in California in 2014 for engaging in a fight, but that he was not formally charged. He reported symptoms of depression, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining relationships, and suicidal ideation. The examiner noted that the Veteran had good personal hygiene, that he was oriented to person, place, and time, with slower speech. His thought processes were logical and coherent without evidence of preoccupations, delusions, or obsessions. His impulse control and judgment were intact, and his self-care was adequate. The examiner opined that his most prominent feature at that time was depression, which appears to be significantly impairing in a range of domains. However, the examiner noted that his endorsed "hallucinations" appeared to be better attributed to daydreams, or something similar to re-experiencing during periods of high stress or anxiety. He was found competent of managing his financial affairs. The examiner found that his psychiatric disorder manifested as severe occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. At a January 2020 VA examination, the Veteran's diagnoses for MDD and PTSD were continued. He reported that since the last examination, he had a significant other of two years and a child. He noted that the relationship was stable, although struggling at times, noting physical and mental abuse. He also reported a friend whom he associated with intermittently, engaging in hunting together, and that he enjoyed board games, and watching television and movies. He also noted that he went out occasionally, but that his family was on the west coast and that he did not see or associate with them much. He noted struggling with social settings and stores, but that his panic attacks were about fifty percent better. He noted that he was not currently working, and that he was not continuing with his degree. He noted that things were a little bit better now, noting that he sought assistance or himself, but that he had not had a stable job since he left the military. He stated that he had a lot of trouble maintaining relationships with coworkers and supervisors. He reported taking medication which helped his panic attacks, tearfulness, and depression, but that he only met with a psychiatrist intermittently. He reported altercations with other people over the past several years, noting that he was easy to anger. Symptoms were noted to be depression, anxiety, suspiciousness, panic attacks occurring weekly or less, chronic sleep impairment, flattened affect, disturbances in mood or motivation, difficulty in establishing effective relationships, and suicidal ideations. The examiner noted that the Veteran was alert and oriented to person, place, and time, with logical and coherent thought processes which were also goal directed. There was no evidence of hallucinations or delusions, and his speech was normal and clear. His mood was depression, and his attention and concentration were fair. His short and long term memory were noted to be intact, with poor motivation and energy. His insight and judgment were also poor, but he denied any suicidal or homicidal ideations. However, the examiner noted that the Veteran continued to endorse occasional thoughts of harming himself, without intent or plan. The Veteran also stated that these thoughts were vague, and medication reduced these thoughts. He was found capable of managing his finances. The examiner found that his psychiatric disorder manifested as severe occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Collectively, neither the medical evidence nor the Veteran's lay statements of his symptomology equates to the total occupational and social impairment warranted by a rating of 100 percent. Specifically, the evidence does not show gross impairment of thought processes or communications, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. Additional treatment records were also reviewed and reflected sporadic treatment for his psychiatric disorders but did not reflect more severe symptomatology. The Veteran has exhibited frequent thoughts of harming himself, but consistently denied intent or plan. Additionally, to the extent that he endorsed hallucinations one time, the VA examiner has noted that these were more akin to daydreams as described by the Veteran. Otherwise, his symptomology and the associated functional impairment is not total, as required for a 100 percent rating. Rather, he was consistently found to be capable of managing his financial affairs and has remained engaged in a lengthy romantic relationship and function as a father. The Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's MDD and PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Lumbar Spine The Veteran's lumbar spine disability has been rated as 20 percent disability under DC 5243 for the entire period on appeal. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Specifically, the amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; with an assignment of DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. Thus, in order to warrant a higher rating, the medical evidence should show: forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); or, favorable ankylosis of the entire thoracolumbar spine (40 percent); or incapacitating episodes of IVDS having a total duration of at least four weeks but less than six weeks during the past 12 months (40 percent); or, unfavorable ankylosis of the entire thoracolumbar spine (50 percent); or IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months (60 percent). Turning to the medical evidence, at a May 2013 VA examination, the Veteran reported constant middle back pain, rated as between a four to eight out of ten, with exacerbations sometimes when raising his arms above his shoulders. He reported stabbing pain which resolved after a few minutes, issues with bending, twisting, lifting, standing for more than a couple of hours, sitting for more than ten minutes, and lying for longer than five or six hours. He denied taking painkillers or flare-ups. Range of motion testing revealed forward flexion to 90 degrees or greater, with objective evidence of painful motion shown at 90 degrees or greater. He was able to perform repetitive use testing without any additional loss of range of motion. However, functional limitation of less movement, pain, and interference with sitting was noted after repetitive use testing. There was no evidence of ankylosis of the spine, and IVDS was noted, but without any incapacitating episodes. At an April 2015 VA examination, the Veteran reported pain throughout his back, noting that everything was stable until the fall of 2013 when the severity of pain increased. He noted that any activity made his back spasm, making it impossible to do anything but lay down, which would last a few days to a month. He noted that he does not seek treatment because no medications have helped. He reported constant pain with flare-ups and spasms upon bending or reaching. Range of motion testing revealed forward flexion to 15 degrees and pain was noted upon examination causing functional loss. He was able to perform repetitive use testing without any additional loss of range of motion. There was no ankylosis of the spine, but there was IVDS requiring bed rest. However, there was no bed rest prescribed by a physician in the preceding twelve months. The examiner noted that no spasm or intrinsic muscular irregularity was noted on the examination, and that there were no objective signs of pain. The examiner noted that although the Veteran reported an inability to do virtually any activity in 1.5 years, his shoulder and leg muscles are noted very firm and solid. The examiner opined that this would not be suggestive of significant debility or inactivity. The examiner also noted that following the examination, the Veteran was observed achieving greater than 90 degrees of thoracolumbar flexion seated while putting on his socks and shoes. At a November 2019 VA examination, the Veteran reported constant back pain, but denied any medication, radicular symptoms, or surgery. He reported increased pain while raking leaves, washing dishes, chopping firewood, cleaning toilets, or tying shoes. He also noted that he was unable to go hunting anymore due to his thoracic pain. Range of motion testing showed forward flexion to 90 degrees, with pain noted on examination that did not cause functional loss. He was able to perform repetitive use testing which resulted in a decrease of forward flexion motion to 45 degrees. The examiner noted that this was medically consistent with the Veteran's statements describing functional loss during a flare-up. There was muscle spasm, but not which resulted in abnormal gait or spinal contour. There was also IVDS, but it did not require bed rest prescribed by a physician in the past twelve months. There was no ankylosis. The examiner noted that his thoracic spine condition overall was moderate. Based on the above, the medical evidence supports a 20 percent rating, but no more, for a lumbar spine disability. In this regard, the medical evidence showed forward flexion to be, at worst, 45 degrees, and there was no ankylosis or evidence of IVDS requiring bed rest. The medical evidence does not support a 40 percent rating, as forward flexion has not been shown to be 30 degrees or less, and there is no evidence of ankylosis or IVDS requiring bed rest. While clinical records show sporadic treatment for a lumbar spine disability, they do not contradict these findings. In this regard, the Board acknowledges that the Veteran's forward flexion was noted to be 15 degrees at the April 2015 VA examination. Importantly, he also reported severely incapacitating episodes only at the April 2015 VA examination. However, the Board does not find that these findings are consistent with the remaining evidence of record. Specifically, while the record contains treatment for other ailments, it is scant with respect to his low back disability despite his statements of severely incapacitating episodes for which treatment would be necessary. While not dispositive, this weighs heavily against the claim. Additionally, the April 2015 VA examiner provided an opinion that the Veteran's subjective complaints did not align with the objective examination. Specifically, his muscles were noted to be very well developed despite statements that he would be bedridden for a month at a time due to back pain. Instead, his physique presented as that of an active individual. Additionally, while he only manifested forward flexion to 15 degrees upon examination, the April 2015 VA examiner noted that he presented forward flexion to more than 90 degrees at the conclusion of the examination while putting on his socks and shoes. In fact, this finding is more consistent with the other examinations of record wherein he presented with forward flexion of 90 degrees or more. In this regard, the November 2019 VA examiner only found, at worst, flexion of 45 degrees after repetitive use testing, which was opined to be consistent with his degree of limitation during a flare-up as well. Thus, unfortunately, less probative weight is assigned to the Veteran's statements which have not been found to be consistent with the remaining evidence of record. With regard to all appeals, the Board has also considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. REASONS FOR REMAND The issue of entitlement to TDIU was remanded by the Board in April 2019. However, the Veteran has never been sent a VA Form 21-8940 and instructed to complete and return it to VA. As such, there is not sufficient evidence of his educational and employment history. Therefore, a remand is required. The matter is REMANDED for the following actions: 1. The AOJ must provide the Veteran and representative with adequate notice of the criteria necessary to establish a claim for TDIU under 38 C.F.R. § 4.16. Send the Veteran a VA Form 21-8940 and request that he complete it and submit it. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Y., 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.