Citation Nr: 22016306
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 17-18 617
DATE: March 21, 2022

ORDER

An initial disability rating in excess of 20 percent for the service-connected left shoulder rotator cuff tear is denied.

An initial disability rating of 20 percent, but no higher, for the service-connected lumbar spine degenerative arthritis for the period on appeal prior to June 1, 2021 is granted.

A disability rating in excess of 20 percent for the service-connected lumbar spine degenerative arthritis for the period on appeal from June 1, 2021 to July 22, 2021 is denied.

A disability rating of 40 percent, but no higher, for the service-connected lumbar spine degenerative arthritis for the period on appeal from July 23, 2021 is granted.

A separate 10 percent disability rating, but no higher, for right lower extremity radiculopathy for the period on appeal from October 19, 2020 through July 22, 2021, but not earlier, is granted.

A disability rating in excess of 10 percent for the service-connected right lower extremity radiculopathy for the period on appeal from July 23, 2021 is denied.

An initial compensable disability rating for the service-connected left ear hearing loss disability is denied.

An initial disability rating of 100 percent for the service-connected posttraumatic stress disorder (PTSD) is granted.

Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) based on the statutory housebound rate is granted from July 23, 2021.

FINDINGS OF FACT

1. During the period on appeal, motion of the left (minor) arm has been limited to no worse than 80 degrees of flexion and 78 degrees of abduction, with consideration of additional functional loss following repeated use over time and during flare-ups; thus, more nearly approximating limitation of motion of the minor arm at shoulder level, but not 45 degrees from the side (half way between side and shoulder level) or 25 degrees from the side.

2. For the period on appeal prior to June 1, 2021, the service-connected lumbar spine degenerative arthritis was manifested symptoms more nearly approximating limitation of forward flexion of the thoracolumbar spine to 60 degrees but did not more nearly approximate limitation of forward flexion to 30 degrees or less, to include consideration of additional functional loss following repeated use over time and during flare-ups, or ankylosis of ankylosis of the thoracolumbar spine or entire spine (or functional equivalent thereof).

3. From June 1, 2021 to July 22, 2021, the service-connected lumbar spine degenerative arthritis was not manifested by symptoms more nearly approximating forward flexion limited to 30 degrees or less, to include consideration of additional functional loss following repeated use over time and during flare-ups, or ankylosis of ankylosis of the thoracolumbar spine or entire spine (or functional equivalent thereof).

4. From July 23, 2021, the service-connected lumbar spine degenerative arthritis was manifested symptoms more nearly approximating limitation of forward flexion of the thoracolumbar spine limited to 30 degrees, to include consideration of additional functional loss following repeated use over time and during flare-ups; but, it did not more nearly approximate ankylosis (or the equivalent thereof) of the thoracolumbar or entire spine (or functional equivalent thereof).

5. From October 19, 2020 through July 22, 2021, the Veteran's service-connected lumbar spine degenerative arthritis was productive of associated right lower extremity radiculopathy manifested by symptoms that more nearly approximate mild incomplete paralysis of the femoral nerve.

6. From July 23, 2021, the service-connected right lower extremity radiculopathy was manifested by no worse than mild incomplete paralysis of the femoral nerve.

7. During the entire period on appeal, the service-connected left ear hearing loss has been manifested by no worse than a numerical hearing impairment of Level I.

8. During the entire period on appeal, the service-connected PTSD has been manifested by an overall disability picture more nearly approximating total occupational and social impairment.

9. As of July 23, 2021, the Veteran's service-connected disabilities included PTSD rated as 100 percent disabling and additional service-connected disabilities ratable as at least 60 percent disabling.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 20 percent for the service-connected left shoulder rotator cuff tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5019-5201.

2. Prior to June 1, 2021, the criteria for an initial disability rating of 20 percent, but no higher, for the service-connected lumbar degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242.

3. From June 1, 2021 to July 22, 2021, the criteria for a disability rating in excess of 20 percent for the service-connected lumbar degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242.

4. Resolving all doubt in the Veteran's favor, from July 23, 2021, the criteria for a disability rating of 40 percent, but no higher, for the service-connected lumbar degenerative arthritis have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242.

5. From October 19, 2020 through July 22, 2021, but not earlier, the criteria for the assignment of a separate 10 percent disability rating, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8526.

6. From July 23, 2021, 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. §§ 4.1-4.14. 4.124a, Diagnostic Code 8526.

7. The criteria for an initial compensable disability rating for the service-connected left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100.

8. Resolving all doubt in favor of the Veteran, the criteria for an initial disability rating of 100 percent for the service-connected PTSD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

9. As of July 23, 2021, the criteria for assignment of SMC under 38 U.S.C. § 1114(s) based on the statutory housebound rate have been met. 38 U.S.C. §§ 1114(s), 5103A, 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March to May 2003, September 2003 to August 2004, August 2005 to June 2006, October 2007 to November 2008, with additional service in the National Guard.

This case is before the Board of Veterans' Appeals (Board) on appeal from July 2015, August 2015, and September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions.

In the July 2015 decision, the RO granted service connection for PTSD and assigned an initial disability rating of 70 percent, effective from February 11, 2015. In June 2016, VA received the Veteran's NOD. In February 2017, the RO issued a Statement of the Case (SOC). In April 2017, VA received the Veteran's VA Form 9 appeal to the Board.

In the August 2015 decision, the RO granted service connection for degenerative arthritis of the spine and left shoulder rotator cuff tear; and, assigned initial disability ratings of 10 percent for each disability, effective from February 11, 2015. In June 2016, VA received the Veteran's NOD. During the pendency of the appeal, the RO issued another rating decision in February 2017, concurrently with a February 2017 SOC. In that rating decision, the RO increased the initial disability rating for the service-connected left shoulder rotator cuff tear to 20 percent, effective from February 11, 2015, the effective date of service connection.  The February 2017 SOC continued the 10 percent rating assigned for the degenerative arthritis of the spine.  In April 2017, VA received the Veteran's VA Form 9 appeal to the Board.

In the September 2016 decision, the RO granted service connection for left ear hearing loss and assigned an initial noncompensable rating, effective from May 23, 2016; and, denied service connection for right ear hearing loss. In December 2016, VA received the Veteran's NOD. In February 2017, the RO issued a SOC. In April 2017, VA received the Veteran's VA Form 9 appeal to the Board.

In October 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is associated with the claims file.

In March 2021, the Board remanded the case for further development and adjudication. Additionally, the Board granted a total disability rating based on individual unemployability (TDIU). An April 2021 rating decision implemented the Board grant of TDIU and assigned an effective date of February 11, 2015.

In a June 2021 rating decision, the RO increased the disability rating for the lumbar spine degenerative arthritis from 10 percent to 20 percent, effective June 1, 2021. In addition, in a September 2021 rating decision, the RO assigned a separate disability rating of 10 percent, effective July 23, 2021, for right lower extremity femoral radiculopathy.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). 

When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

1. Entitlement to an initial disability rating in excess of 20 percent for the service-connected left shoulder rotator cuff tear.

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."). 

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." 

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 

The left shoulder rotator cuff tear is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5019-5201.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  The hyphenated codes for the Veteran's left shoulder rotator cuff tear reflect that bursitis is the service-connected disability under Diagnostic Code 5019 and arm, limitation of motion is the basis of the rating assigned under Diagnostic Code 5201.

Diagnostic Code 5201 provides a 20 percent rating for arm motion limited at the shoulder level, major or minor, a 30 and 20 percent rating for arm motion limited midway between the side and shoulder level, major and minor respectively, and a 40 and 30 percent rating for arm motion limited to 25 degrees from the side, major and minor respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003).

Recent amendments to Diagnostic Code 5201, effective February 7, 2021, clarify that limitation of motion of the arm to shoulder level is equivalent to flexion and/or abduction limited to 90 degrees and limitation of motion to midway between side and shoulder level is equivalent to flexion and/or abduction limited to 45 degrees. 85 Fed. Reg. 76,453 (Nov. 30, 2020). See also, 38 C.F.R. § 4.71a, Diagnostic Code 5201 (effective February 7, 2021)

As an initial matter, the Veteran is right-handed. See July 2021 VA examination report. Therefore, his right arm is the major extremity for VA rating purposes.

During the October 2020 Board hearing, the Veteran testified that he can no longer lift "any weight" and "can't lift my hand up above my head on my left side" due to left shoulder weakness. October 2020 Board hearing transcript at 3-4.

During the period on appeal, the Veteran received an initial VA examination for his shoulder in August 2015. During the examination, he reported "stiffness and pain" if he tries to raise his left arm high above his head" but was "able to lift weights and ... do all other activities that he desires" at the time of examination. The Veteran denied flare-ups of the left shoulder. Flexion of the left shoulder was limited to 160 degrees. Abduction was limited to 120 degrees. External rotation was limited to 90 degrees and internal rotation was limited to 80 degrees. There was no additional functional loss after 3 repetitions. The examiner estimated that there would be no additional functional loss following repeated use over time. Muscle strength was normal on left shoulder forward flexion and abduction. There was no evidence of muscle atrophy or ankylosis. The examiner indicated that a rotator cuff condition was suspected but testing was negative for a rotator cuff condition. The examiner also indicated that shoulder instability, dislocation or labral pathology was suspected but testing was again negative. Moreover, there was no evidence of clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint conditions or conditions or impairments of the humerus. There was no evidence of arthritis. Finally, functional impairments included inability "to reach, lift or carry with his left arm extended over his head." However, the examiner did not provide Correia findings.

Of record is a January 2021 private medical examination for his left shoulder. At the time of examination, the Veteran reported continued pain in the left shoulder. He indicated that "[w]eather bothers his left shoulder." Upon examination, there was tenderness in the AC joint, deltoid muscle, and the bursa. Regarding rotator cuff conditions, empty can, Hawkin's and Neer's sign tests were positive. Regarding ROM, left shoulder flexion was limited to 82 degrees, extension was limited to 44 degrees, abduction was limited to 78 degrees, adduction was limited to 21 degrees, internal rotation was limited to 31 degrees, and external rotation was limited to 66 degrees.

The Veteran most recently received a VA examination for his left shoulder in July 2021. During the examination, he reported that his left shoulder is "stiff" and "painful flaring weekly for a few hours requiring anti-inflammatory medication." The pain occurred "with and after activity overhead and repetitive weight bearing ex. lifting/carrying and pushing/pulling." Furthermore, the Veteran reported "difficulty sleeping due to L shoulder discomfort." The Veteran reported "1-3" weekly flare-ups of left shoulder pain of "3-8" hours in duration. The flare-ups were characterized by "moderately severe" pain characterized by "dull aching pain ... at times associated with burning/tingling biceps." The flare-ups were alleviated by "[r]est, heat, [and] anti inflammatory medication." Flexion of the left shoulder was limited to 95 degrees. Abduction was limited to 90 degrees. Internal rotation was limited to 40 degrees and external rotation was limited to 45 degrees. There was no additional functional loss after 3 repetitions. Regarding additional functional loss following repeated use over time, the examiner provided the following ROM estimates: (1) flexion limited to 80 degrees; (2) abduction limited to 85 degrees; (3) internal rotation limited to 40 degrees; and (4) external rotation limited to 45 degrees. Regarding additional functional loss during flare-ups, the examiner provided the following ROM estimates: (1) flexion limited to 80 degrees; (2) abduction limited to 80 degrees; (3) internal rotation limited to 40 degrees; and (4) external rotation limited to 40 degrees. There was no evidence of muscle atrophy or ankylosis. Hawkins' impingement, external rotation/infraspinatus strength, and lift-off subscapularis tests were positive for a rotator cuff condition. The examiner also indicated that there was no evidence shoulder instability, dislocation or labral pathology. However, testing was positive for clavicle, scapula, AC joint, or sternoclavicular joint conditions. There was no evidence of humerus impairment. Furthermore, there was no evidence of arthritis. Regarding functional impairment, as noted above, the examiner indicated that the Veteran experienced pain with repetitive weight bearing activities, such as lifting, carrying, pushing, and pulling. Finally, regarding Correia, passive ROM was the same as active ROM with pain on passive ROM, there was pain on weightbearing and non-weightbearing, and opposite joint testing was conducted.

Based on the foregoing, a disability rating in excess of 20 percent for the service-connected left shoulder rotator cuff tear is not warranted. Specifically, at no time during the period on appeal has left arm motion been limited to 25 degrees from the side, or worse. Flexion of the left shoulder was limited to no less than 80 degrees and abduction to no less than 78 degrees, to include consideration of repeated use over time and during flare-ups. While limitation to 80 degrees is less than limitation to 90 degrees, or shoulder level, the criteria for the next higher rating are not met because the evidence does not show that the minor arm is limited to 45 degrees (half way between side and shoulder level) or 25 degrees from the side. To warrant a disability in excess of 20 percent for the left (minor) shoulder rotator cuff repair, the evidence would have to show limitation of the left arm to 25 degrees from the side; and, this has not been demonstrated at any time during the period on appeal.  

Entitlement to compensation under other Diagnostic Codes has been considered, including 38 C.F.R. § 4.71a, Diagnostic Code 5203 (impairment of clavicle or scapula). As indicated above, the July 2021 examiner indicated that testing was positive for clavicle, scapula, AC joint, or sternoclavicular joint conditions. However, the maximum rating under Diagnostic Code 5203 is 20 percent. As the Veteran's left shoulder disability is already rated as 20 percent disabling under Diagnostic Code 5201, no analysis of whether a higher rating is warranted under Diagnostic Code 5203 is warranted. Accordingly, the criteria for a disability rating in excess of 20 percent for the service-connected left shoulder rotator cuff tear have not been met.

2. Entitlement to a disability rating in excess of 10 percent for the service-connected lumbar spine degenerative arthritis for the period on appeal prior to June 1, 2021; and a disability rating in excess of 20 percent for period on appeal from June 1, 2021.

The lumbar spine degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242.

Currently, disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, IVDS, under Diagnostic Code 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or 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 evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. 

Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. Id. 

Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" under this formula is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. at Note 1.

Diagnostic Code 5243, which rates IVDS, specifically instructs to evaluate IVDS under both Diagnostic Code 5243 and the General Rating Formula and apply whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 

Effective February 7, 2021, Diagnostic Code 5243 instructs assignment of a rating under its provisions only when there is disc herniation and/or irritation of the adjacent nerve root and to apply Diagnostic Code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective February 7, 2021).

The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). Here, the amendments to the rating schedule do not have any retroactive application.

In this case, there is no evidence of disc herniation or irritation of the adjacent nerve root. However, given that the current appeal was pending as of February 7, 2021, a rating under Diagnostic Code 5243 for IVDS may still be available for the in the absence of disc herniation or irritation of the adjacent nerve root even after the effective date of the amendment if the old rating criteria yield a more favorable result than the new criteria. 

During the period on appeal, the Veteran received an initial VA examination for his low back in August 2015. During the examination, the Veteran reported "pain on the right side of his lower back" when "he bends forward or sits for more than 45 minutes." The pain was "worse in the mornings." The Veteran denied flare-ups of low back pain. ROM testing revealed forward flexion of the thoracolumbar spine limited to 80 degrees, extension limited to 25 degrees, right lateral flexion limited to 25 degrees, left lateral flexion limited to 25 degrees, right lateral rotation limited to 25 degrees, and left lateral rotation limited to 25 degrees. There was no additional functional loss following 3 repetitions and the examiner opined that there would be no additional functional loss following repeated use over time. There was no evidence of guarding and muscle spasm. Muscle strength, reflexes, and senses were normal. A straight leg test was negative for radiculopathy There was no evidence of ankylosis of the spine or IVDS. X-rays revealed evidence of degenerative disc disease at the T12-L1 and L1-L2 vertebra. Functional impacts of the lumbar spine degenerative arthritis included "no repetitive bending, or heavy lifting or carrying." The examination report did not include Correia findings.

During the October 2020 Board hearing, the Veteran reported aching, sometimes burning low back pain that became more pronounced with activity. He also reported burning pain and "pins and needles" in the right hip and buttocks. The Veteran reported pain with twisting and low back fatigue following 20 to 30 minutes of moving around. See October 2020 Board hearing transcript at 8-13.

In January 2021, VA received a private medical examination report containing findings regarding the low back. Examination of the back revealed forward flexion of the thoracolumbar spine limited to 66 degrees, extension limited to 11 degrees, right lateral flexion limited to 21 degrees, left lateral flexion limited to 26 degrees, right lateral rotation limited to 22 degrees, and left lateral rotation limited to 10 degrees. Straight leg tests were negative for radiculopathy in either lower extremity. Nonetheless, in the examination report, the examiner opined that the Veteran had "impingement of the bilateral L5 and S1 spinal nerves, greater down the right leg."

The Veteran next received a VA examination for his low back in June 2021. During the examination, the Veteran reported pain and stiffness in the lower back. He reported moderate flare-ups of increased pain occurring weekly, lasting a few hours, precipitated by lifting, and alleviated by Ibuprofen. Functional impairments during flare-ups included "[l]imitation in prolonged sitting, bending, lifting, and long distance driving." ROM testing revealed forward flexion of the thoracolumbar spine limited to 60 degrees, extension limited to 20 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 20 degrees, right lateral rotation limited to 25 degrees, and left lateral rotation limited to 25 degrees. There was no additional functional loss following 3 repetitions and the examiner opined that there would be no additional functional loss following repeated use over time. Furthermore, the examiner opined that there would be no additional functional loss during a flare-up. There was guarding and muscle spasm not resulting in abnormal gait or abnormal spinal contour. Muscle strength, reflexes, and senses were normal. A straight leg test was negative for radiculopathy and there was no radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis of the spine or IVDS. Functional impact of the lumbar spine degenerative arthritis included "[l]imitation in prolonged sitting, bending, lifting, and [] long distance driving." Regarding Correia, there was pain on passive ROM and active ROM was the same as passive ROM. There was pain on weightbearing but not on non-weightbearing.

The Veteran most recently received a VA examination for his low back in July 2021. During the examination, the Veteran reported symptoms of stiffness, pain, and decreased ROM. He reported moderate flare-ups occurring once per week, lasting less than half a day, precipitated by "bad nights sleep" and "sitting too long," and alleviated by Ibuprofen. ROM testing revealed forward flexion of the thoracolumbar spine limited to 50 degrees, extension limited to 5 degrees, right lateral flexion limited to 10 degrees, left lateral flexion limited to 15 degrees, right lateral rotation limited to 10 degrees, and left lateral rotation limited to 10 degrees. There was no additional functional loss following 3 repetitions and the examiner opined that there would be no additional functional loss following repeated use over time. Estimated ROMs during a flare-up were flexion limited to 30 degrees, extension limited to 5 degrees, right lateral flexion limited to 5 degrees, left lateral flexion limited to 5 degrees, right lateral rotation limited to 5 degrees, and left lateral rotation limited to 5 degrees. There was no localized tenderness, guarding, or muscle spasm. Muscle strength and reflexes were normal. However, senses were decreased in the right upper anterior thigh and thigh/knee. A straight leg test was positive for right lower extremity radiculopathy. Symptoms of radiculopathy included mild paresthesias and/or dysesthesias and numbness in the right lower extremity. There was no evidence of ankylosis of the spine or IVDS. Functional impacts of the degenerative spine arthritis included no sitting for more than 30 minutes, no standing for more than 5 to 10 minutes, no lifting more than 20 pounds, and no walking more than 1 mile. Finally, regarding Correia, there was pain on passive ROM and passive ROM was the same as active ROM.

Based on the foregoing, prior June 1, 2021, an initial disability rating of 20 percent for the service-connected lumbar degenerative arthritis is warranted. In this regard, the evidence shows that forward flexion of the thoracolumbar spine was limited to no more than 60 degrees. As noted above, the initial August 2015 VA examination did not include Correia findings. Nonetheless, the symptoms reported during the June 2021 examination are substantially consistent with symptoms reported during the August 2015 examination, and as such, the Veteran's symptoms during the August 2015 examination are consistent with the finding of forward flexion limited to 60 degrees by the June 2021 examiner. Given the above, prior to June 1, 2021, the criteria for an initial disability rating of 20 percent for the lumbar degenerative arthritis have been met.

Nonetheless, prior to June 1, 2021, an initial disability rating in excess of 20 percent is not warranted. Specifically, prior to June 1, 2021, there is no evidence of limitation of forward flexion to 30 degrees or less. In addition, there is no evidence of ankylosis, functional equivalent of ankylosis, or IVDS. Accordingly, prior to June 1, 2021, the criteria for an initial disability rating in excess of 20 percent for the lumbar degenerative arthritis have not been met.

Similarly, from June 1, 2021 to July 22, 2021, there is no evidence of limitation of forward flexion to 30 degrees or less. In addition, there is no evidence of ankylosis, functional equivalent of ankylosis, or IVDS. Accordingly, from June 1, 2021 to July 22, 2021, the criteria for a disability rating in excess of 20 percent for the lumbar degenerative arthritis have not been met.

Next, from July 23, 2021, a disability rating of 40 percent for the service-connected lumbar degenerative arthritis is warranted. In this regard, from July 23, 2021 (the date of the July 2021 VA examination), the evidence shows that limitation of forward flexion of the thoracolumbar spine is estimated to decrease to 30 degrees when considering additional functional loss during flare-ups. Additionally, the record reflects that the Veteran has flare-ups with enough frequency that consideration of the additional limitation of motion during flare-ups is appropriate in this case. Accordingly, from July 23, 2021, the criteria for a disability rating of 40 percent for the lumbar degenerative arthritis have been more nearly approximated.

However, from July 23, 2021, a disability rating in excess of 40 percent for the lumbar degenerative arthritis is not warranted. Specifically, from July 23, 2021, there is no evidence of ankylosis, the functional equivalent of ankylosis, or IVDS. Accordingly, from July 23, 2021, the criteria for a disability rating in excess of 40 percent for the lumbar degenerative arthritis have not been met.

Although the private January 2021 examination report indicates that the Veteran had a diagnosis of IVDS, that finding is not supported by the record; and, moreover, even if the Veteran did, in fact, have such a diagnosis, there is no indication that he has received physician-prescribed bedrest due to exacerbations for a total of 4 weeks or more at any time during the appeal period.  Accordingly, higher ratings under the criteria for rating IVDS are not warranted.

Finally, regarding neurological impairment, the issue of entitlement to a separate compensable disability rating prior to July 23, 2021; and a disability rating in excess of 10 percent from July 23, 2021, for service-connected right lower extremity radiculopathy is part of the current appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The right lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8526.

Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Codes 8526, 8626, and 8526 for paralysis, neuritis, and neuralgia, respectively. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 disabling. Complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a.

During the October 2020 Board hearing, the Veteran reported symptoms of burning pain and pins and needles in the right hip and buttocks. Moreover, the January 2021 examiner indicated that the Veteran had a nerve impingement associated with the lumbar spine disability. The symptoms reported by the Veteran during the October 2020 Board hearing are also consistent with the findings from the July 2021 examination. Therefore, resolving reasonable doubt in the Veteran's favor, symptoms warranting assignment of a 10 percent rating for right lower extremity radiculopathy were factually ascertainable at the time of the October 19, 2020 Board hearing. Accordingly, from October 19, 2020, but not earlier, the criteria for a separate compensable disability of 10 percent for right lower extremity radiculopathy have been met.

Nonetheless, the VA examinations of record have not revealed any radicular symptoms in the left lower extremity. Accordingly, no separate rating is warranted for left lower extremity radiculopathy at any time during the period on appeal.

Furthermore, as of the July 2021 examination, the radiculopathy was no more than mild in severity in the right lower extremity only, according to the VA examiner's assessment of the symptoms. Accordingly, a disability rating in excess of 10 percent for right lower extremity radiculopathy is not warranted from July 23, 2021.

3. Entitlement to an initial compensable disability rating for the service-connected left ear hearing loss disability.

Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 

Evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 

Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated based on a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. Table VI calculates the numeric designation of hearing impairment based on puretone threshold average and speech discrimination. The designated Roman numeral is located at the point on the chart where the percentage of speech discrimination (horizontal rows) and puretone threshold average (vertical columns) intersect. 

Table VIa calculates the numeric designation of hearing impairment based only on puretone threshold average; and, it is used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under 38 C.F.R. § 4.86 (cases involving exceptional patterns of hearing impairment as explained below). 

For cases involving exceptional patterns of hearing impairment, the schedular criteria provides that, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. The numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Each ear will be evaluated separately.

After the appropriate Roman numeral is designated for each ear, these Roman numerals are applied to Table VII to ascertain the corresponding rating. If hearing loss is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f)

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

During the period on appeal, the Veteran received an initial VA examination for his left ear hearing loss disability in June 2016. The puretone thresholds in decibels recorded during the June 2016 examination were as follows:

Hertz	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz

Right	0	10	5	15	25

Left	5	20	15	45	50

Average puretone thresholds were 14.75 decibels for the right ear and 32.5 decibels for the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 96 percent for the right ear and 96 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Finally, functional impairments documented by the examiner included, as stated by the Veteran, "decreased hearing sensitivity bilaterally causing difficulty while practicing law to hear testimony in court proceedings."

Also of record is a January 2021 private audiological examination. The puretone thresholds in decibels recorded during the January 2021 examination were as follows:

Hertz	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz

Right	N/A	10	5	15	25

Left	N/A	20	15	45	50

Average puretone thresholds were 13.75 decibels for the right ear and 32.5 decibels for the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 96 percent for the right ear and 96 percent for the left ear.

The Veteran next received a VA examination for his left ear hearing loss disability in June 2021. The puretone thresholds in decibels recorded during the June 2021 examination were as follows:

Hertz	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz

Right	5	10	15	25	35

Left	15	10	20	50	50

Average puretone thresholds were 21.25 decibels for the right ear and 32.5 decibels for the left ear. Speech discrimination scores using the Maryland CNC word list were 98 percent for the right ear and 94 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Finally, functional impairments documented by the examiner included, as stated by the Veteran, "[t]rouble hearing in the presence of background noise."

Initially, there is no evidence that the Veteran suffers from an exceptional pattern of hearing impairment in the left ear as defined by 38 C.F.R. § 4.86.

Furthermore, application of the puretone threshold averages and speech discrimination scores from the June 2016 VA examination to C.F.R. § 4.85, Table VI, results in numerical hearing impairment of Level I for the left ear. Similarly, application of the puretone threshold averages and speech discrimination scores from the January 2021 private audiological examination results in a numerical hearing impairment of Level I for the left ear. Application of the puretone threshold averages and speech discrimination scores from the June 2021 also results in a in numerical hearing impairment of Level I for the left ear. 

Application of the numerical hearing impairments from both the June 2016 and June 2021 VA examinations; and, the January 2021 private examination, all result in a Level I hearing impairment.  When the Level 1 hearing impairment for the service-connected ear and the nonservice-connected ear are applied to Table VII under 38 C.F.R. § 4.85, the result is a noncompensable disability rating.

Importantly, as noted above, the assignment of disability ratings for hearing impairment is derived primarily from a mechanical formula based on levels of puretone threshold average and speech discrimination. See Lendenmann, 3 Vet. App. at 345. The June 2016 and June 2021 VA examiners recorded findings regarding the impact of the left ear hearing loss disability on his daily life and occupational functioning. Martinak, 21 Vet. App. at 455-56. In particular, functional impairments included hearing difficulty during court proceedings and difficulty hearing in the presence of background noise. However, functional impairments such as these are contemplated by the schedular criteria for hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Given the above, the criteria for a compensable disability rating for the service-connected left ear hearing loss have not been met at any time during the period on appeal.

4. Entitlement to an initial disability rating in excess of 70 percent for the service-connected PTSD.

The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411.

Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 70 percent rating is assigned 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.  Id.

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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.   

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

In other words, in applying the General Formula for Mental Disorders (General 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 analysis must include a determination as to whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. 38 C.F.R. § 4.126. 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 February 2015 emergency department encounter note revealed suicidal ideation which was "unrelenting and constant." 

During the period on appeal, the Veteran received an initial VA examination for his PTSD in March 2015. At that time, the Veteran reported symptoms of irritability, anxiety, depression, social withdrawal, hypervigilance, "difficulty falling and staying asleep," nightmares, and intrusive thoughts. Symptoms noted by the examiner included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and obsessional rituals which interfere with routine activities. During the examination, the Veteran was "alert, well oriented and cooperative." He was "appropriately dressed and groomed." Mood was "mildly dysphoric, and he became tearful when discussing his symptoms." Nonetheless, thought processes were "linear, logical and goal directed." Recent and remote memory was "intact." Attention and concentration were "grossly intact." The Veteran denied present suicidal or homicidal ideation. However, he reported 3 prior suicide attempts. Overall, the examiner opined that the psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity.

The Veteran most recently received a VA examination for his PTSD in June 2016. During the examination, the Veteran reported symptoms of nightmares "2/7 nights per week, flashbacks and intrusive thoughts," particularly when seeing "war scenes or violence on television," and intense distress "such as when he hears a sudden loud noise like fireworks." He noted feelings of a "foreshortened future due to the guilt he feels," "markedly diminished interest in activities he once enjoyed," and "detachment and estrangement from others." Moreover, he reported having a "restricted range or affect described as difficulty expressing emotions when feels he should," "difficulty falling and staying asleep occurring nightly," "occasional irritability and outbursts that occurs when he becomes agitated," "exaggerated startle response when startled by sudden loud noises," and "difficulty concentrating" when he has thoughts of being under attack during service. Symptoms noted by the examiner included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. During the examination the Veteran had "appropriate appearance and hygiene, appropriate behavior," and "maintains good eye contact." Communication, speech, and concentration were normal. Thought processes and memory were also normal. There was no evidence of suicidal ideation, homicidal ideation, or hallucinations. Overall, the examiner concluded that the Veteran's psychiatric symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. 

In a May 2019 function report, the Veteran reported social isolation and lack of interest in pleasurable activities. He also noted deficits to concentration and memory and erratic sleep patterns. He indicated that he became anxious "especially at work" or upon leaving the house. However, he denied problems with personal care.

Although the Veteran has not received another VA examination since June 2016, of record is a July 2019 mental status examination referred for by the Social Security Administration (SSA). During the examination, the Veteran described symptoms including nightmares, intrusive thoughts and memories, reminders, hypervigilance, and "difficulties in his functioning associated with reminders of prior traumatic events," such as "loud noises." Furthermore, symptoms included sadness, low energy level, loss of interest in activities and difficulties with attention and concentration. The examiner noted the Veteran's history of suicide attempts, including an attempt "after the loss of his most recent job." At the time of examination, the Veteran spent "a lot of time sleeping." Overall, the examiner opined that the Veteran had diagnoses of PTSD and major depressive disorder of "moderate to severe severity." Finally, the examiner performed cognitive testing, and concluded that there was evidence of "mild" cognitive impairment, particularly as to the Veteran's memory and concentration.

During the October 2020 Board hearing, the Veteran testified that he had to stop working because he would "get anxious and ... can't maintain a very long train of thought." October 2020 Board hearing transcript at 18. He testified to his history of multiple suicide attempts and "deep depression." Functional impacts included inability to "really read anymore because I can't keep a train of thought going." Id. at 19. Moreover, the Veteran reported several instances of thoughts of self-harm over the past 6 months. Other symptoms included losing "track of time." The Veteran denied visual or auditory hallucinations or forgetting names of family members but nonetheless stated "I'm very forgetful now" and reported that he sometimes forgets "someone that I've known for years" when in that person's company. Id. at 19-20. He denied problems with personal care. See id. at 21.

A January 2021 VA mental status examination revealed that the Veteran was "oriented and [in] no acute distress," speech was at "normal rate, volume, and tone," mood was "good," thought process was "linear and goal directed," and thought content was "logical." He denied active suicidal or homicidal ideation, intent or plan, and there was no evidence of audio or visual hallucinations, paranoia, or delusions. Attention and concentration appeared "grossly intact," memory was "grossly intact," and insight and judgment were "fair." VA psychiatry telephone note dated January 4, 2021.

Based on the foregoing, an initial disability rating of 100 percent for the service-connected PTSD is warranted. First, the Veteran's history of persistent suicidal ideation and multiple attempts are consistent with persistent, rather than isolated, danger of hurting self or others. Next, the Veteran's lay statements are consistent with depressive symptoms of such frequency, duration, and severity such that the depressive symptoms are near constant and have a profound effect on the Veteran's daily living.  Moreover, it does not appear that the VA examinations of record capture the full extent of the nature, frequency, and severity of the Veteran's depressive symptoms. The Veteran is competent to report symptoms such as depression and anxiety and the frequency at which he suffers from those symptoms. In particular, the Veteran has reported symptoms including deep depression, foreshortened future, marked lack of interest in activities he once enjoyed, detachment from society, and anxiety while attempting to work or upon leaving the house. There is no reason to doubt his credibility in the regard. Notably, one or two VA examination reports may be insufficient to fully encapsulate a veteran's full disability picture due to psychiatric symptoms, including frequency, duration, and severity of symptoms, length of remissions, and capacity for adjustment during remissions. Under 38 C.F.R. § 4.126, the assignment of a disability rating under the General Formula must include consideration of all evidence of record regarding occupational and social impairment, rather than a single examiner's assessment of the level of disability at the moment of the examination. In this case, the Veteran's competent and credible reports of the severity and frequency of his depression and anxiety, evidence of multiple suicide attempts during the period on appeal, near constant suicidal ideation, increased isolation, loss of emotion, hopelessness, and the examiner's finding of mild cognitive impairment results in an overall disability picture more nearly approximating total occupational and social impairment. Significantly, the Board has previously determined that the Veteran is unable to work due to his PTSD alone. See March 2021 Board decision. Thus, there is evidence of total occupational impairment.  Furthermore, the Veteran's multiple suicide attempts support the veracity of his reports regarding the severity of his depressive symptoms, such that there are periods during which the Veteran's depressive symptoms are so severe that he loses the will to live. Importantly, the Veteran did not experience an isolated suicide attempt, but rather, has near constant depression leading to near constant suicidal ideation, and that resulted in multiple suicide attempts.  This is akin to grossly inappropriate behavior, and the Veteran's depression and anxiety are described as constant.  This can cause an inability to perform activities of daily living from time to time.  As noted above, there is no reason to doubt the Veteran's credibility as to the severity of his depression and other observable symptoms.  As such, the Veteran's description of the severity and frequency of his observable symptoms is accorded great weight, and outweighs the findings on VA examinations which were made based on a single assessment at a single moment in time.  Given the above and resolving all reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 100 percent for the service-connected PTSD have been more nearly approximated.

SMC

5. Entitlement to SMC under 38 U.S.C. § 1114(s) based on the statutory housebound rate.

VA has a duty to infer a claim for SMC when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the housebound rate is payable by law where the veteran has a single service-connected disability rated at 100 percent and has additional service-connected disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350.

Under subsection 1114(s), SMC housebound benefits are not available to a veteran who has a combined 100 percent disability rating unless at least one of the service-connected disabilities is singly rated at 100 percent (and there are additional service-connected disabilities independently ratable at 60 percent or higher). However, the United States Court of Appeals (Court) has held that 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and that 38 C.F.R. § 3.350 (i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a single service-connected disability rated as total. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In other words, if the TDIU is predicated on a single service-connected disability rated less than 100 percent, it may nevertheless serve as a single 100 percent disability rating for purposes of establishing entitlement under 38 U.S.C. § 1114(s).

A TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional service-connected disability or disabilities independently ratable at 60 percent or more for purposes of establishing entitlement to SMC at the housebound rate. Id.; see also, Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). The Court also declared that the direction to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. A TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability rating in considering entitlement to housebound benefits under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App. at 290-91.

As of July 23, 2021, the Veteran's service-connected disabilities included PTSD, rated at 100 percent disabling, lumbar spine degenerative arthritis, rated as 40 percent disabling, left shoulder rotator cuff tear, rated as 20 percent disabling, tinnitus, rated as 10 percent disabling, right hip strain, rated as 10 percent disabling, and right lower extremity radiculopathy, rated as 10 percent disabling. Accordingly, as of July 23, 2021, the Veteran had a single service-connected disability rated as 100 percent disabling and additional disabilities rated as at least 60 percent disabling. Accordingly, the criteria for entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) have been met as of July 23, 2021.

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Small, 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.