Citation Nr: 22018309 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 10-25 077 DATE: March 28, 2022 ORDER An initial 40 percent rating, but no higher, is granted for service- connected degenerative arthritis of the lumbar spine. A 70 percent rating is granted, effective April 19, 2006, for service- connected posttraumatic stress disorder (PTSD). A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's lumbar spine disability is manifested by objective evidence of painful motion and forward flexion less than 30 degrees. 2. For the entire period on appeal, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 3. The Veteran's service-connected disabilities prevent him from following or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria have been met for a 40 percent rating for the service-connected lumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria have been met for a 70 percent rating effective April 19, 2006, for service- connected PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria have been met for TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2000 to September 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and August 2019 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). In November 2020, the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). The Board notes that the Veteran's right lower extremity radiculopathy was adjudicated in a January 2018 Board decision. Therefore, the issue will not be addressed in this decision. Increased Ratings Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects ability to function under the ordinary conditions of daily life, including employment, by comparing the symptoms that the Veteran experiences with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 1. Lumbar spine Legal Criteria The Veteran's lumbar spine disability has been rated under Diagnostic Code (DC) 5242, for degenerative arthritis of the lumbar spine with spinal stenosis, and the General Rating Formula for Diseases and Injuries of the Spine, which provide the criteria for rating the disability with or without symptoms such as pain (whether it radiates), stiffness, or aching around the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71(a). 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 thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Factual Background The Veteran filed an April 2006 claim for service connection for a lower back disorder. The Veteran received a May 2007 VA examination. The physical examination noted normal gait and forward flexion to 90 degrees with stiffness beginning at 80 degrees. The examiner observed the Veteran was able to extend to 30 degrees without pain and right and left lateral bend to 30 degrees. The examiner observed minimal pain at 30 degrees. The examiner did not indicate the point where discomfort began. The examiner noted tenderness to palpation without evidence of muscle spasms. The examiner diagnosed lumbar spinal stenosis. The examiner stated range of motions during passive, active, and repetitive motion was the same. The examiner indicated there was no additional functional loss due to pain, weakness, fatigability, incoordination, or flare-ups, and no incapacitating episodes. The June 2007 rating decision granted service- connection for the lumbar spine disability and granted a 10 percent rating. The Veteran appealed the rating assigned. A January 2008 VA treatment record showed the Veteran complained of low back pain when bending to pick things up off the floor. In his March 2010 substantive appeal, the Veteran explained his back limits what he can do in his day-to-day life. The Veteran stated there are days he cannot bathe his child because he cannot bend over, and last August he quit his job because of his back pain. The Veteran submitted private treatment records showing extensive physical therapy for low back pain. A December 2012 private treatment record noted low back pain on flexion. A March 2013 private treatment record confirmed lumbar flexion was limited to 23 degrees with pain. The private provider assessed restriction of motion in the lumbar spine that caused functional impairment. The private treatment record noted decreased or restricted lumbar flexion from October 2011 through May 2013. The Veteran received a June 2015 VA examination. Initial range of motion testing showed forward flexion limited to 50 degrees, extension, bilateral flexion, and bilateral rotation all limited to 30 degrees. The examiner stated pain and abnormal range of motion did not contribute to functional loss but noted objective evidence of pain in forward flexion, extension, bilateral flexion, and bilateral rotation. The examiner observed evidence of pain in weight bearing. The examiner did not provide an assessment regarding flare-ups or repeated use over time. Additional factors contributing to disability included disturbance of locomotion and interference with standing. The examiner assessed no ankylosis. The examiner determined the Veteran's spine disability prevented lifting above 20 pounds and no psychical work. An October 2015 rating decision granted an increased rating to 20 percent for the lumbar spine disability, effective June 10, 2015. The Veteran received an August 2019 VA examination. The examiner determined the course of condition since onset was worse. However, initial range of motion testing showed testing as normal. The same range of motion was provided for repeated use over time and flare-ups. During the examination the Veteran reported flare-ups with prolonged sitting and walking. The examiner stated the Veteran's spine did not impact his ability to work. The examiner only assessed the Veteran's right lower extremity radiculopathy. During the November 2020 Board hearing, the Veteran reported back flare-ups. The Veteran explained every couple of weeks his back goes out two times a week. Analysis The Board finds a 40 percent rating is warranted for painful motion and forward flexion limited to less than 30 degrees with pain. The Board affords significant probative weight to the Veteran's private treatment records. The private treatment records consistently noted pain that caused functional impairment specifically with flexion. The March 2013 private treatment record noted pain caused forward flexion limited to 23 degrees. Additionally, the private providers had extensive history treating the Veteran while the VA examiners only saw the Veteran once. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001) (the Board may consider a lengthy treating relationship along with all the other evidence when assigning probative weight). The Board affords low probative weight to the May 2007 and June 2015 VA examinations. The May 2007 VA examination indicates discomfort but does not indicate at which point in the range of motion testing discomfort begins. The examiner noted the point stiffness began but not pain. Additionally, the examiner stated there was no additional functional loss with flare-ups but fails to address the Veteran's statements regarding flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017) (even if examination does not occur during a flare-up, examiner must estimate additional functional loss based on symptoms reported and described by veteran; this additional impairment is compensable even if not quantified). Similarly, the June 2015 VA examination failed to provide an assessment during flare-ups or repeated use over time. Additionally, the examiner determined pain did not cause functional impairment but also stated the Veteran could not do physical work. These assessments are contradictory. Accordingly, the Board affords low probative weight to the June 2015 VA examination. Lastly, the Board affords no probative weight to the August 2019 VA examination. The examiner essentially stated the Veteran's back was normal during all range of motion testing and there was no functional impairment that affected the Veteran's abilities. The Veteran's own report during the examination noted functional impairment. Additionally, the examiner stated the Veteran's condition was worse, but the entirety of the examination seems to note improvement. The examiner seemed to only assess the Veteran's right lower extremity radiculopathy and not the spine. The Board finds the rating is warranted for the entire period on appeal. The May 2007 VA examination did not adequately assess functional impairment with pain. The October 2011 through May 2013 private treatment records noted pain in forward flexion and restricted or decreased movement. However, and range of motion was not provided until the May 2013 treatment. Because there is some indication of pain restricting movement and it is unclear when from the evidence when the restriction due to pain began, a stagged rating is not appropriate. The Board finds a higher 50 percent rating is not warranted for unfavorable ankylosis of the entire thoracolumbar spine. The evidence does not show, and the Veteran does not allege, unfavorable ankylosis. There is no indication by the medical records the Veteran's spine is consistently fixed in forward flexion. Accordingly, a higher 50 percent evaluation is not warranted. 2. PTSD Legal Criteria Under 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 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 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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 of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Factual Background The Veteran filed an April 2006 claim for service connection for PTSD. An August 2019 rating decision granted service connection for PTSD with a 30 percent rating effective April 19, 2006, a 50 percent rating effective May 2, 2014, and a 70 percent rating effective August 5, 2019. The Veteran filed a September 2019 notice of disagreement (NOD) seeking "an earlier effective date" for the 70 percent rating. The Veteran explained his symptoms were the same since he initially filed the claim and is seeking an initial 70 percent rating for the entire period on appeal. Essentially the claim is for an initial increased rating prior to August 5, 2019. After the Veteran filed his claim for service connection, he returned to VA mental health treatment in May 2006. The Veteran reported he had a history of panic attacks and his panic attacks had returned, lasting 30 minutes and occurring twice per week. The Veteran explained the panic attacks make him feel out of control, jittery, trembling, hot flashes, and heart pounding. The Veteran endorsed being on medication prior. The Veteran reported addition symptoms of sleep impairment, fatigue, losing concentration at work, inability to feel pleasure, not wanting to go out, and not wanting to participate in sexual activity. The VA treatment provider observed the Veteran was fidgety and anxious, anxious mood and affect, and normal thought, insight, and judgment. The VA treatment provider noted the Veteran had chronic mental illness, recently divorced, lived alone but had a steady girlfriend, was employed with a stable job, and had several friends. The Veteran was placed on medication and referred to therapy. The Veteran began VA mental health counseling in August 2006. The VA treatment provider noted the Veteran was engaged in treatment but maintained little eye contact and spoke with some bitterness. The Veteran returned in April 2007 to VA mental health treatment. The Veteran explained there were many things in his life that made his involvement in treatment difficult. The Veteran endorsed trouble with work and a variety of relationships. In May 2007 VA treatment the Veteran reported dealing with considerable anger towards his mother. The Veteran reported withdrawal from his relationship with his mother when he was angry. The Veteran returned to VA mental health treatment in May 2014. The Veteran reported panic attacks that were increasing in frequency with sudden onset, shortness of breath, increased heart rate, sweating, and restlessness. The Veteran reported worry over the daily attacks and noted he has not been on medication for seven years. The Veteran stated his symptoms were controlled until two months ago. The Veteran endorsed stress from his previous job and stated a co- worker was personally attacking him and tensions elevated. The Veteran started a verbal argument with the co-worker and was terminated for unprofessional behavior. The Veteran endorsed other symptoms including, sleep impairment, inability to feel pleasure, guilt about work and being fired, decreased energy, poor concentration, irritability, and agitation. The VA treatment provider observed restlessness, anxious and depressed mood, good insight, and good judgment. The VA treatment provider noted improvement in symptoms when the Veteran is on medication. The Veteran endorsed strong support from his wife but still dealing with unemployment. The VA treatment provider stated the Veteran would benefit from medication and therapy. The Veteran returned for therapy in May 2014 and endorsed having difficulty dealing with his anger. In June 2014, the Veteran stated he was staring a new job but was hoping to handle his anger in a way that does not get him fired. In July 2014 the Veteran reported improved mood and infrequent anxiety problems. The Veteran received an August 2019 VA examination. The examiner assessed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran stated his symptoms began right after service and detailed a history of difficulty working. The Veteran stated initially after service he worked in a restaurant but dealing with the public triggered his anxiety. The Veteran worked one job for four years but enrolled in school in 2009. After graduation he had a job for 10 months but was fired due to an angry outburst. In 2014 he got a new job but was fired in 2018 for an aggressive outburst. He noted he was currently employed for 8 months but already "had words" with a superior. The Veteran endorsed substance use until 2008 and alcohol use to cope with his symptoms. The VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances in motivation or mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. In a September 2019 statement, the Veteran explained he did not receive a VA examination until 2019 and his symptoms were the same when he originally filed the 2006 claim. During his November 2020 Board hearing, the Veteran explained he was fired from four different jobs due to anger issues. The Veteran noted his panic attacks were the same as when he originally filed the claim. Analysis The Board finds a 70 percent rating is warranted effective April 19, 2006. The VA treatment records showed the Veteran had occupational and social impairment with deficiencies in most areas from the time the Veteran filed the claim. The August 2019 VA examination confirmed a history of occupational impairment. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances in motivation or mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control. The Board notes the Veteran experienced period of stability but usually while on medication. The Veteran's symptoms were more severe while under stress and not on medication. Accordingly, a 70 percent rating is warranted for the entire period on appeal. The Board notes this is considered a full grant of the benefits sought on appeal. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Considering the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim decided herein are moot. TDIU Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("All veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added). Factual Background. In a June 2010 statement, the Veteran reported he quit his job due to his service- connected lumbar spine disability. From April 2006, the Veteran was service connected for: (1) PTSD at 70 percent; (2) migraines at 30 percent; (3) a low back disability at 40 percent; (4) right lower extremity radiculopathy at 10 percent; and (5) noncompensable right finger and right foot scars. As discussed in detail above, the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas. The Veteran's low back disability and radiculopathy prevented physical work and prolonged periods of sitting. The Veteran received a June 2015 VA examination for migraines. The examiner opined that the Veteran's migraines cause prostrating attacks. During the November 2020 Board hearing, the Veteran explained he was employed at the time but had taken a six-month leave of absence due to a nervous breakdown. He testified that, since returning to work, he has called in sick twice a week and has been formally reprimanded for absenteeism. He reported that he expected to lose his current job within six months, in part because of the absenteeism and in part because of the angry outburst. Analysis The Board finds a TDIU is warranted. The Veteran has met the schedular requirements for TDIU from April 2006. The Veteran had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 90 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected right lower extremity radiculopathy, low back disability, and migraines. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected PTSD. At the time of his Board hearing, the Veteran was working but expected to be fired in the near future for the same reasons he had previously been fired from several jobs due to his PTSD symptoms. Additionally, the Veteran had to quit a job due to the physical demands of the work. Notably, the August 2019 PTSD VA examination details an inconsistent work history. Having employment in and of itself is not equivalent to being employable per seindeed, many people with disabilities continue working, even though their disabilities render them ill-equipped to do so, out of financial necessity and to their own detriment. The Veteran is competent (that is, qualified) to report how his service-connected disabilities have affected his ability sit, perform task, or interactions with others. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The Board finds the Veteran's statements competent and credible as they are consistent with the record. Thus, the Board finds the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation. Accordingly, a TDIU is warranted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Whipple, C. 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.