Citation Nr: 22016171 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-53 194 DATE: March 21, 2022 ISSUE 1. Entitlement to a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity. ORDER Entitlement to a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD) is denied. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected post-traumatic stress disorder (PTSD) was manifested by anxiety, suspiciousness, depression, sleep impairment, disturbances of motivation and/or mood, mild memory loss such as forgetting names, directions or recent events, difficulty in establishing effective work and social relationships, and difficulty in adapting to stressful circumstances; all having the effect of occupational and social impairment, with reduced reliability and productivity. 2. Throughout the period on appeal, the Veteran's service-connected radiculopathy of the right lower extremity more nearly approximates that of mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD) have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 2008 to November 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the November 2015 rating decision granted the Veteran service connection for post-traumatic stress disorder (PTSD) at a 50 percent disability rating, effective July 28, 2015. That same rating decision granted the Veteran service connection for radiculopathy of the right lower extremity with a 10 percent disability rating, also effective July 28, 2015. The Veteran filed a timely Notice of Disagreement (NOD) in December 2015, indicating a disagreement with the effective date and the disability ratings of each award of service connection. He was issued a statement of the case (SOC) in September 2017. The Veteran filed a timely VA Form 9 in September 2017, and his claims were certified to the Board in January 2018. In a Board Decision from June 2020, in relevant part, the Board denied entitlement to effective dates earlier than July 28, 2015, for the grants of service connection for PTSD and right lower extremity radiculopathy. The issues related to the current disability ratings for each of those claims was remanded for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Prior to those issues returning to the Board, the Veteran requested a hearing. That hearing took place in November 2021 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The claims have since returned to the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD). The Veteran has claimed that he is entitled to a disability rating higher than 50 percent for his service-connected PTSD. The Veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is part of the General Formula for Mental Disorders (General Formula). Under that formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Turning to the available evidence, in the Veteran's VA Form 9 from September 2017, he wrote that non-Veterans do not "understand what we as [Veterans] go through ... and they never will." He described anger and being unable to "enjoy your time doing anything." He wrote that he is "constantly on guard, constantly watching and waiting," and that he "can't really relax." The Veteran was given a hearing before the undersigned in November 2021. The Veteran testified that he does not "have any friends," because "people for me, they're just too hard to deal with." He stated that he has a supportive family environment with a spouse and three children, and that "that's my safe space ... I'm thankful for my family." The Veterans Law Judge asked the Veteran if he had any past suicidal ideation, and the Veteran testified that, while it may be a passing "thought every once in a while, ... that's all it is ... and that's all it will ever be." He denied having any significant suicidal ideation, because "I couldn't put my family through that." The Veteran expressed difficulty getting out of bed everyday to go to work, describing feelings of anhedonia with life. The Veteran also testified to his frustration with the ratings criteria, because he does not "fight everybody at work, and stuff like that, that you really don't qualify," for a higher disability rating. The Veteran is competent to report the symptoms he experiences, such as those associated with his PTSD. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the medical evidence, the Veteran was given a VA examination in October 2015. The Veteran was seen in person, and his claims file was reviewed. The Veteran was diagnosed with PTSD, and they summarized the Veteran's occupational and social impairment as having reduced reliability and productivity. The examiner noted specific symptoms of anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstance, including wok or a worklike setting. The Veteran reported no suicide attempts or ideation, and he was casually dressed, with good hygiene, normal speech, and a cooperative mood. The Veteran was given another VA examination in July 2015, and a disability benefits questionnaire (DBQ) was completed. During the exam, the Veteran said that "I hate people, I hate being around people, I hate being in crowds." He also described periods of hypervigilance, irritability/anger, a "mild exaggerated startle response," and intrusive memories and nightmares. The examiner again summarized the Veteran's occupational and social impairment as having reduced reliability and productivity. The examiner noted symptoms of anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in establishing and maintaining effective work and social relationships, and an inability to establish and maintain effective relationships. The Veteran was "neatly groomed and casually dressed," with a cooperative attitude and appropriate mood. His attention was noted to be intact, with good orientation, thought process and content. The Veteran "denied having recent panic attacks or homicidal or suicidal thoughts." As noted above, the Board remanded the Veteran's claim in June 2020, as it found that the Veteran had reported his symptoms were worse than currently rated. It also highlighted an April 2016 VAMC treatment record that noted passing suicidal ideation from April 2012 and requested that the VA examiner specifically address that topic. That VA examination occurred in November 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner again summarized the Veteran's occupational and social impairment as having reduced reliability and productivity. The examiner noted the April 2016 VAMC record, whereby the Veteran "reports suicidal ideation in 2012 and admitted himself to [Madigan Army Medical Center] for a few days. No further suicidal ideation." The Veteran stated during the exam that he was in a loving marriage with children, and that "my wife and I make decisions as a team ... I support her and she supports me." The Veteran stated that "I work so much. I don't have time for friends. I'm alright with that." The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. His hygiene and grooming "were adequate," with normal speech, and psychomotor skills. His "behavioral style was angry," and his "mood was irritable." The Veteran's though processes were logical, and his insight, judgment, memory, concentration, and attention were good. The examiner specifically remarked that the suicidal ideation was "not at elevated acute risk." The Veteran's claims file contains VAMC treatment notes for the entire period on appeal. The Veteran frequently notes problems with anhedonia, motivation, irritation, trouble sleeping, and difficulty concentrating. He was described as "very guarded and quiet." He frequently denies suicidal or homicidal ideation. He is generally found to dress appropriately, with clear speech, thought content, and no significant psychomotor problems. See November 2015 VAMC Treatment Record. Aside from the isolated report from April 2012, whereby the Veteran indicated thoughts of suicidal ideation, he frequently denies suicidal thoughts, or thoughts of self-harm. See VAMC notes, April 2016 to December 2020. There is no evidence that either the VA examiners, or the VAMC counselors were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran's service-connected PTSD more nearly approximates the 50 percent disability rating. The Veteran has provided lay statements related to anger, anhedonia, feeling guarded, and that he "can't really relax." He testified to not having friends and denied suicidal ideation. The Veteran also testified to having a supportive home and family life, with a good marriage. He described difficulty getting out of bed to go to work, indicating problems with motivation, but he was not noted to have any disciplinary problems at work. The Veteran was given three VA examinations during the appeals period, and each examiner summarized the Veteran's occupational and social impairment as having reduced reliability and productivity, which the Board notes directly reflects the 50 percent disability rating. He has been described as having symptoms of anxiety, suspiciousness, depression, sleep impairment, disturbances of motivation and/or mood, mild memory loss such as forgetting names, directions or recent events, difficulty in establishing effective work and social relationships, and difficulty in adapting to stressful circumstances. The Board notes that the majority of those symptoms actually approximate the 30 percent rating, but the Board will not disturb the current 50 percent rating. He has always been found to have good hygiene, appropriate speech, and motor skills, with good orientation, though process and content. This includes his insight, judgment, concentration, and attention. VAMC records for the entire period on appeal largely reflect these findings. The Board notes that these symptoms, when viewed collectively, generally indicate that the current severity of the Veteran's PTSD more nearly approximates the 50 percent disability rating. At no point has the Veteran demonstrated the requisite symptomatology during this period on appeal for the 70 percent rating. There is no indication that he experiences obsessional rituals; intermittently illogical, obscure, or irrelevant speech, spatial disorientation; a neglect of personal appearance and hygiene; and/or an inability to establish and maintain effective relationships. While the Veteran was noted to have periods of irritability with anger, the Board does not find this to rise to the level of unprovoked irritability with periods of violence, as reflected by the 70 percent disability rating. Finally, the Board notes that the Veteran's claim was previously remanded, as an April 2016 VAMC record noted that the Veteran had suicidal thoughts in April 2012. As an initial matter, April 2012 is prior to the current period on appeal, which began July 2015. More importantly, the Veteran has, since that time, frequently denied any suicidal ideation. The Veteran was asked directly about his past suicidal ideation during his November 2021 Board hearing, and he specifically denied any suicidal ideation, because "I couldn't put my family through that." Thus, for the entire period on appeal, this symptomatology more nearly approximates the current 50 percent disability rating, and that the evidence persuasively stands against a finding that the Veteran's symptomatology is of the severity and frequency to cause the level of occupational and social impairment associated with a 70 percent disability evaluation. The 50 percent rating best summarizes the Veteran's occupational and social impairment as manifested by reduced reliability and productivity. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). DC 9411. As such, based on the Veteran's overall symptomatology and the resulting occupational and social impairment stemming therefrom, the Board finds that the evidence in favor of the claim is not in approximate balance or nearly equal to the evidence that supports the claim, and thus entitlement to a disability rating in excess of 50 percent for service-connected PTSD must be denied. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity. The Veteran has claimed that he is entitled to a disability rating in excess of 10 percent for his service-connected radiculopathy of the right lower extremity. See generally December 2015 NOD. The Veteran's radiculopathy of the right lower extremity is rated under Diagnostic Code (DC) 8520, for paralysis of the sciatic nerve. DC 8520 provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Mild is generally defined as "not severe." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed March 14, 2022). Moderate is generally defined as "tending toward the mean or average amount." Id. Severe is generally defined as "of a great degree." Id. In Miller v. Shulkin, 28 Vet. App. 376, 380 (2017), the Court held that, "although the note preceding § 4.124a directs the claims adjudicator to award no more than a 20 percent disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level. Turning to the available evidence, the Board notes that the Veteran did not provide testimony in November 2021 as to the symptom he experiences. The Veteran spoke briefly about pain in his right knee, at which point the Veteran was encouraged by the Veterans Law Judge to file an application for entitlement to service connection for a right knee disability, to include as due to a service-connected back disability. That issue is not currently on appeal. Turning to the available medical evidence, the Veteran was given a VA examination in September 2015 for his service-connected back disability. The Veteran was seen in person, and his claims file was reviewed. During the exam, the Veteran was noted to have radiculopathy of the right lower extremity, associated with his service-connected back disability. The examiner described "mild" intermittent pain of the right lower extremity, and "mild" paresthesias. The examiner confirmed that this was related to the sciatic nerve and indicated the severity of that radiculopathy to be "mild" in nature. The Veteran was given another VA examination in July 2017 for his service-connected back disability. During the exam, the examiner denied that the Veteran had any radiculopathy of the lower extremities. As the examiner denied a current disability, the Board remanded the Veteran's claim in June 2020 for another VA examination. That VA examination occurred in December 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner noted that the Veteran did have a current diagnosis of right lower extremity radiculopathy. The only symptom indicated was intermittent pain, which was noted to be "mild." The examiner checked that there was involvement of the right sciatic nerve and indicated that the current severity was best described as "mild." As the July 2017 VA examination denied that the Veteran had a current diagnosis, the Board finds it inadequate for determining the current severity of his service-connected radiculopathy. See Barr, Id. There is no evidence however that the VA examiners from December 2020 or September 2015 were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran's service-connected radiculopathy of the right lower extremity to be mild in severity. The Veteran has generally claimed that he experiences dull pain in his right lower extremity, which he is competent to report. See Jandreau, Id. Two separate VA examinations, to which the Board has afforded significant probative weight, each described intermittent pain of the right lower extremity as nothing more than "mild." They also both characterized the current severity of his radiculopathy of the sciatic nerve as no more than "mild." In fact, the Veteran's right lower extremity radiculopathy has never been described as moderate, let alone severe. Consequently, the available evidence indicates that the current severity of the Veteran's right lower extremity radiculopathy more nearly approximates the 10 percent rating. In reaching these conclusions, the Board finds that the evidence persuasively stands against finding in favor of the claim in that it is not in approximate balance or nearly equal to the evidence that supports the claim. As such, the benefit of the doubt rule is not for application, and the claim for entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); DC 8520. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.