Citation Nr: 1754155	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-01 744	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Entitlement to an initial disability rating, in excess of 50 percent, for post-traumatic stress disorder ("PTSD").

2. Entitlement to an initial disability rating, in excess of 20 percent, for the lumbar spine disability.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel


INTRODUCTION

The Veteran served as a member of the United States Army, with active duty service from July 2001 through November 2001, from October 2003 through April 2005, from July 2006 through December 2006, from October 2007 through January 2008, and from January 2008 through February 2009.  

This appeal comes to the Board of Veterans' Appeals ("Board") from two rating decisions, dated July 2009 and November 2009, issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in North Little Rock, Arkansas (hereinafter Agency of Original Jurisdiction ("AOJ")).  In pertinent part, the July 2009 rating decision granted the Veteran entitlement to service connection for PTSD, and assigned an initial 50 percent evaluation.  The November 2009 rating decision awarded the Veteran entitlement to service connection for a lumbar spine disability, and assigned an initial evaluation of 20 percent. 

In September 2013, the Veteran appeared and testified before the undersigned Veterans Law Judge, at a Travel Board Hearing held at the RO.  A transcript of this hearing has been reviewed and associated with the Veteran's claims file. 

The Board observes that the Veteran, through his representative, testified that the symptoms of his PTSD and lumbar spine disability impair his ability to maintain employment.  The Board notes that if a claimant, or the record, reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability ("TDIU") as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).  However, a review of the evidentiary record indicates that the Veteran is currently employed.  See August 2015 VA Examination.  As such, Rice is not for application in the instant appeal. 

The Veteran's appeal has previously been before the Board.  In March 2015, the Board remanded the claims back to the AOJ for further development.  Specifically, the AOJ was directed to assist the Veteran in obtaining all outstanding medical records, including both treatment at VA facilities and all private medical facilities identified by the Veteran.  The Board additionally requested the AOJ provide the Veteran with updated VA examinations in order to assess the current severity of his service-connected PTSD and lumbar spine disability.  A review of the evidentiary record indicates that the requested development was completed and that the matters have been properly returned to the Board for further appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS").  Reviewing the record, the Board observes that evidence was received by the AOJ subsequent to the March 2016 Supplemental Statement of the Case.  However, the file includes a September 2017 written statement from the Veteran and his representative waiving AOJ consideration of any additional evidence submitted.  See 38 C.F.R. 20.1304(c).  Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran.


FINDINGS OF FACT

1.  Throughout the period on appeal, the Veteran's PTSD symptoms have been manifested by depression, anxiety, panic attacks, irritability, persistent nightmares and flashbacks, sleep disturbance, and diminished interest in activities. 

2.  Beginning on and after February 15, 2009, the Veteran's service-connected PTSD symptoms more nearly approximated a disability picture manifest by psychiatric symptoms causing occupational and social impairment, with deficiencies in most areas.  However, there has been no evidence suggesting that the Veteran's service-connected PTSD symptoms caused total social and occupational impairment at any time during the period on appeal.

3.  The Veteran's lumbar spine disability is manifested by symptoms of a reduced range of motion, painful motion, muscle spasms, tenderness, difficulty sitting, walking, and standing for prolonged periods, fatigability, and an altered gait.

4.  Throughout the period on appeal, the Veteran's lumbar spine disability has not been characterized by limitation of forward flexion of the thoracolumbar spine to 30 degrees or less.  At no point has the Veteran been observed to have unfavorable ankylosis of the lumbar spine or been observed to have such a restricted range of motion that is approximate to ankylosis.  


CONCLUSIONS OF LAW

1.  The Veteran's service-connected PTSD meets the requirements for an initial increased evaluation of 70 percent, but no higher, for the period beginning on and after February 15, 2009.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 

2.  The criteria for an increased evaluation, in excess of 20 percent, for the lumbar spine disability has not been met or approximated at any point relevant to the period on appeal.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.20, 4.27, 4.40, 4.49, 4.7.1a, Diagnostic Codes 5237, 5239 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).

The Veteran's claims for increased initial ratings of his PTSD and lumbar spine disabilities are considered "downstream" elements of the AOJ's grant of service connection.  For such downstream issues, notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In correspondence dated April 2009 and September 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for service connection for PTSD and a back condition, including what part of the evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 6 Vet. App. 183, 187 (2002). 

However, additional correspondence was mailed to the Veteran in March 2010, which explained that to substantiate his claims for increased ratings of the PTSD and lumbar spine disabilities, the Veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life.  This March 2010 correspondence further informed the Veteran of the specific evidence which would be necessary to warrant a grant of an increased evaluation for both the PTSD and lumbar spine disability claims. 

With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini, 18 Vet. App. at 112.  Here, all relevant notice was issued prior to the currently appealed rating decisions; thus, this notice was timely.  Any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328.  

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  This includes the VA treatment records identified by the Board's March 2015 remand.  See Stegall, 11 Vet. App. 268 at 271.

The Veteran has additionally been afforded updated VA examinations which addressed the Veteran's reported symptoms, frequency, and severity and the interference these symptoms cause in his ability to complete basic daily tasks.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board finds that these VA examinations and the medical opinions provided are thorough, supported by a clear rationale, based on a review of the claims folder, and supported by the clinical evidence of record.  Additionally, the VA examiners considered the Veteran's lay assertions in reaching their conclusions.  Therefore, the Board finds that these updated VA examinations and medical opinions are adequate to decide the Veteran's claim for increased evaluations of his PTSD and lumbar spine disabilities.  See 38 C.F.R. §§ 3.326, 3.327, 4.2;  See also Stegall, 11 Vet. App. 268 at 271.

The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at a Travel Board hearing, held at the RO in September 2013.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ noted the basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits.  The VLJ specifically noted the issues as including the issues listed on the title page of this decision.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.  Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Governing Laws and Regulations for Increased Ratings:

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities ("Rating Schedule"), found in 38 C.F.R. § 4.1 (2017).  The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Separate diagnostic codes identify the various disabilities and each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.10.  As such, each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.   38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where, as here, the question for consideration is the propriety of the initial evaluation assigned, the relevant time period for consideration begins on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In the instant appeal, that date is February 15, 2009 for both the PTSD and lumbar spine claims adjudicated herein.  Moreover, the Board acknowledges that a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

The Board notes that in analyzing this claim, the Secretary, and therefore the Board, has an obligation to provide the Veteran with the "benefit of the doubt" on questions material to this decisions, for which there is an approximate balance of positive and negative evidence.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  

That being the generalized law applicable to the Veteran's appeal, the Board observes the Veteran is seeking entitlement to increased ratings for his service-connected PTSD and lumbar spine disabilities.  As noted in the introduction, the Veteran has timely appealed the initial 50 percent evaluation for his PTSD disability.  The Veteran has also timely appealed the initial 20 percent evaluation for the lumbar spine disability.  The Board will discuss the merits of the Veteran's appeals for increased ratings for the PTSD and lumbar spine disabilities separately below.

i.  Entitlement to a rating in excess of 50 percent for the service-connected PTSD disability:

The Veteran is seeking an initial evaluation, in excess of 50 percent, for his service-connected PTSD disability.  When evaluating a service-connected mental disorder, VA will review the Veteran's medical history to determine how badly the disorder has disrupted his social and occupational functioning.  Specifically, VA must review the frequency, severity, and duration of the psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).  While the extent of a Veteran's social impairment is considered, the rating cannot be assigned on these limitations alone.  38 C.F.R. § 4.126(b).

The level of disability is then rated according to a General Rating Formula for Mental Disorders, codified at 38 C.F.R. § 4.130 ("General Rating Formula"), which provides for ratings of zero, 10, 30, 50, 70, or 100 percent.  The VA compensates Veterans beginning at 10 percent disability, and compensation increases at each level.

In the instant appeal, the AOJ granted service connection for PTSD and assigned disability ratings under Diagnostic Code 9411.  Under this DC, a 10 percent evaluation is assigned for occupational and social impairment due to mild or transient symptoms, with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medications.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 

A 30 percent evaluation is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. 

A 50 percent evaluation is assigned for 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted where there is 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; 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 work-like setting); and inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is assignable where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

Evaluation under this formula is "symptom driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation ... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411.  
The Board notes that the Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating."  Id.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation.  Id.  

Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders.  The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5.  Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130.  However, the provisions of this final rule do not apply to claims that were certified to the Board on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction.  As this appeal was certified to the Board in July 2013, the previous versions of the regulations including references to DSM-IV apply.

In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning ("GAF") score is another component considered to determine the entire disability picture for the Veteran.  The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms.  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS at 32 (4th ed. 1994)).  

Higher GAF scores denote increased overall functioning of the individual.  For example, a GAF score of 51 to 60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks); or moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)."  DSM-IV at 46-47.  While lower scores are indicative of greater symptoms and decreasing functionality of the individual.  Specifically, a GAF score of 41 to 50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting); or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)."  Id.  

While an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95.

That being the relevant law applicable to the Veteran's claim for an increased rating of his PTSD, the Board finds evidence of record is consistent with an initial 70 percent rating for the Veteran's PTSD, throughout the entire appeal period, effective from February 15, 2009.  Beginning on and after February 15, 2009, the Veteran's service-connected PTSD is manifested by psychiatric symptoms more nearly approximating occupational and social impairment with deficiencies in most areas, which is required for a 70 percent rating.  See 38 C.F.R. § 4.130.  The Board has also considered additional, similar symptomatology not specifically addressed in the 70 percent criteria, but causing the appropriate level of occupational and social impairment for a 70 percent rating, under the General Rating Formula.  Mauerhan, 16 Vet. App. at 442.  In making this determination, the Board has reviewed both the medical and lay evidence of record: the Veteran's lay statements, arguments from his representative, and VA psychological examination dated in February 2009, March 2010, October 2012, and August 2015. 
  
In reaching this determination, the Board finds that the Veteran's overall PTSD symptoms more nearly approximate a 70 percent disability evaluation beginning on and after February 15, 2009.  VA treatment records and VA examinations essentially document that the Veteran's signs and symptoms have remained essentially unchanged since his initial grant of entitlement to service connection on February 15, 2009.  These consistent and chronic reports of symptoms provides support for the assignment of an initial evaluation of 70 percent.  Any minor fluctuations in the severity of his disability are episodic or temporary in nature.  

The medical and lay evidence of record document such signs and symptoms including social isolation, constant depression, anxiety, frequent panic attacks, irritability, hypervigilance, increased startle responses, flashbacks, numbing, persistent nightmares three times per week or more, and insomnia.  During various counseling appointments, the Veteran described difficulty interacting with others and his tendency to isolate.  Notably, the Veteran had initially enrolled in group counseling for his PTSD symptoms, but during his October 2012 VA examination the Veteran reported stopped as he became frustrated with the other Veterans in his therapy sessions.  The Veteran also acknowledged that these counseling sessions caused him to relieve a lot of his traumatic experiences from active duty service.  Outside of his family, the Veteran has not reported maintaining any close friendships or engaging in social interactions with others on a regular basis.  Rather, the Veteran's recent counseling sessions indicate he has been unable to complete college courses to obtain a degree due to his anxiety and inability to be around others in a classroom.  See e.g. Mena CBOC Records. 

The medical records also describe the Veteran's irritability and tendency to overreact to otherwise minor events.  For example, the Veteran described a scenario where he got out of his car in a parking lot to yell at a woman who he perceived to be driving erratically.  Then, the Veteran described the situation escalated and the Veteran punched another man in the parking lot who yelled at him for being rude to the woman driving the car.  See e.g. Mena VAMC Records, dated December 2009.  Similar events have occurred, where the Veteran's anger and irritability have escalated an otherwise minor wrong. 

In addition to the Veteran's decreased social functioning, the Board observes that he exhibited a high level of anxiety and hypervigilance.  At various counseling sessions throughout the period on appeal, the Veteran has reported experiencing anxiety and panic attacks on a near daily basis.  See e.g. March 2010 VA Examination.  The Veteran has reported an inability to go out in public or crowded areas, and states that when he is in a crowded restaurant he must sit in a corner booth with his back against the wall so he is able to see everyone in the room.  

The Veteran's anxiety, intrusive thoughts, and hypervigilance additionally cause him to have impaired sleep.  During his February 2009 VA examination, the Veteran reported it took about 30 to 40 minutes on average to fall asleep and that he is awoken constantly throughout the night by nightmares or even the quietest noises.  More recent records indicate that the Veteran reports it takes about 60 to 90 minutes for him to fall asleep.  See Mena CBOC Records.  Additionally, the Veteran's wife has described the Veteran's sleep as erratic and that he will thrash and yell in his sleep, but have no recollection of these actions if awoken.  See e.g. April 2016  Statement in Support of Claim.  

The Board has also reviewed and considered the GAF scores assigned to the Veteran during the pendency of his appeal.  For example, during the August 2015 VA examination, the Veteran was assigned a GAF score of 49, which is indicative of serious symptoms.  The Board finds this GAF score to be consistent with a 70 percent disability evaluation, as it indicates the Veteran experiences difficulties in his social functioning and that he experiences daily symptoms of anxiety, hypervigilance, and depression. While the Board is aware the examiner expressed an opinion that the Veteran's overall level of impairment was suggestive of a 50 percent disability evaluation, the Board finds that the totality of the Veteran's symptoms during this examination warrant the assignment of an increased disability evaluation.  

Based upon this review of the evidentiary record, the Board finds the Veteran's overall disability picture more closely approximates an initial 70 percent disability evaluation, effective from February 15, 2009.  The medical and lay evidence of record describe continuous symptoms which impaired the Veteran's ability to function socially and his ability to complete his degree.  

However, while totality of the evidence shows the Veteran's symptoms are consistent with an initial 70 percent disability rating throughout the entire appeal period, the Board finds no credible evidence which would suggest the Veteran's symptoms meet the criteria for a higher evaluation.  The medical and lay evidence beginning on and after February 15, 2009, are not indicative of someone with psychiatric symptomatology causing total occupational and social impairment, which is required for the 100 percent rating.  38 C.F.R. § 4.130.  Specifically, there is no evidence which documents a gross impairment in thought process or communication; there is no evidence of any delusions or hallucinations; no grossly inappropriate behavior; no "persistent" danger of hurting himself; no disorientation to time or place; and no memory loss for names of close relatives, own occupation, or own name.  Id. 

General observations of the Veteran throughout the period on appeal do not suggest he ever struggled to maintain or neglected his personal hygiene.  Rather, he was consistently observed to be appropriately dressed and "neatly groomed."  For example, during the March 2010 VA examination, the Veteran was described as "neatly dressed and groomed."  Similar observations were made during the Veteran's February 2009 VA examination.  During the August 2015 VA examination, the Veteran was descried as "well-groomed."  Furthermore, throughout the period on appeal, the Veteran was able to independently care for himself and his personal hygiene.  

From an occupational standpoint, the Board finds no evidence which suggests the Veteran's symptoms result in a total impairment.  Throughout the period on appeal, the Veteran has been able to obtain and maintain various forms of employment, including work as a "project manager" with an oil company in North Dakota.  See August 2015 VA Examination.  This finding is significant, because it shows the Veteran was capable of interacting with others on a sustained basis while employed as a manager.  The Veteran has also been able to both work in a full time capacity and attend classes at a community college.  Currently, the Veteran is self-employed, working as a logging and yard maintenance company.  See August 2015 VA Examination.  Thus, while the Board acknowledges the Veteran experiences deficits within his social functioning, as described above and as reflected in the assignment of a 70 percent evaluation, his symptoms do not preclude him from attending school and obtaining/maintaining gainful employment. 

Similarly, while the Veteran endorses avoidance of certain activities and locations, the overall evidence does not suggest his PTSD precludes him from performing regular daily activities and chores.  For example, the Veteran reported his avoids shopping in-stores due to his anxiety and fear of crowds.  However, the Veteran acknowledges that he is able to shop in stores and go to restaurants during off hours, or when there is no crowd.  See e.g.  October 2012 VA Examination.  Recent treatment records indicate that the Veteran has expressed an interest in returning to school to complete his degree and is working with a counselor to improve his concertation and coping skills.  See e.g.  Mena CBOC Records, dated November 2015.  At no time during the period on appeal has there Veteran reported or alleged any difficulties in his ability to complete daily tasks and chores around the house. 

Most significantly, the overall medical record does not show any periods of in-patient psychiatric hospitalizations or loss of functioning.  Rather, the Veteran is treated on an out-patient basis, and has participated in group therapy.  The totality of these group and individual therapy reports show the Veteran continued to experience social limitations due to his anxiety, hyperarousal, and mood liability.  However, despite these limitations, the totality of the evidence is not suggestive of total social impairment.  In sum, the Board finds no medical or lay evidence which shows the Veteran's symptoms resulted in total social or occupational impairment.
The Board has additionally considered whether the Veteran's service-connected PTSD symptoms warrant the assignment of an extraschedular evaluation.  The determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Federal Circuit provided guidance in rating psychiatric disabilities, emphasizing that the list of symptoms under a given rating is nonexhaustive. Vazquez-Claudio, supra.  The psychiatric symptoms present in this case are either listed in the schedular criteria or are similar in kind to those listed, as discussed above.  Review of the record does not reveal that the Veteran suffers from any symptoms of PTSD that are not contemplated in the nonexhaustive list of symptoms found in the schedular criteria.  Furthermore, the rating schedule provides for greater compensation for greater disability than that suffered by the Veteran. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected PTSD.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. 

Accordingly, the Board finds that the evidence supports an initial disability rating of 70 percent, but no higher, for the service-connected PTSD throughout the entire appeal period.  38 C.F.R. § 4.3.  It is not necessary to "stage" the Veteran's ratings any further than discussed above, as the Veteran's PTSD symptoms have been consistent at the 70 percent levels for the respective time period delineated by the Board in the present decision.  Fenderson, 12 Vet. App. at 126.  Therefore, from February 15, 2009 to the present, the Board concludes the evidence supports an initial 70 percent rating, but no higher, for the Veteran's service-connected PTSD.  38 C.F.R. § 4.3.   

ii.  Entitlement to an increased evaluation, in excess of 20 percent, for the service-connected lumbar spine disability: 

The Veteran seeks entitlement to an increased rating, in excess of 20 percent, for his lumbar spine disability.  In statements to the Board, the Veteran contents the totality of his symptoms, including pain, decreased range of motion, fatigability, and a decreased ability to tolerate prolonged walking and sitting are more limiting than is reflected by the presently assigned 20 percent rating. 
 
The Veteran's lumbar spine disability has been rated under a hyphenated Diagnostic Code for spinal impairments, specifically 5237-5239.  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 rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27.

The Board acknowledges the use of a hyphenated diagnostic code here which does not conform to the standard described immediately above.  It appears in this case that the AOJ has utilized a hyphenated diagnostic code-not to indicate that the Veteran has a disease, injury, or residual condition which is unlisted in the rating code-but simply as a means of more accurately capturing the nature of the Veteran's service-connected disability.  Regardless, this atypical use of a hyphenated diagnostic code does not impact the Board's analysis herein as the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated.

The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:  

A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 of more of height. 

A 20 percent rating is assigned 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, 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 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 

A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. 

A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. 

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

Note (2):  (See also Plate V)  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. 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. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note (4):  Round each range of motion measurement to the nearest five degrees. 

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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. 

38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). 

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  A finding of functional loss due to pain 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).  

Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).  

With any form of arthritis, painful motion is an important factor of disability.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 

As applied to the Veteran's claim, after considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the medical and lay evidence of record do not warrant the assignment of an increased evaluation, in excess of 20 percent, at any time during the period on appeal.  The Board makes this determination after considering the Veteran's functional loss due to weakness, fatigability, and pain.  See 38 C.F.R. §§ 4.7, 4.40, 4.45; See also DeLuca, 8 Vet. App. at 206-207.  

To warrant the assignment of an increased rating, here 40 percent, the evidence would have to demonstrate that the Veteran's lumbar spine is characterized by symptoms resulting in the functional equivalent of forward flexion to 30 degrees or less.  As will be discussed below, while the longitudinal medical records demonstrate the Veteran experiences a reduced range of motion, there is no evidence suggesting that he is unable to perform forward flexion of less than 30 degrees.   Even when considering the Veteran's complaints of pain and other functional loss factors, the evidence does show that there is functional loss more nearly approximating a 40 percent disability evaluation.  8 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca, 8 Vet. App. at 206-207.  
The Veteran was initially examined for symptoms of his lumbar spine disability during an April 2009 VA examination.  At this time, the examiner reported the Veteran was able to perform forward flexion to 75 degrees, including after three repetitions.  Pain was observed beginning at 20 degrees for forward flexion.   The Veteran performed extension from 0 to 20 degrees, including after three repetitions, with no evidence of pain on movement.  Bilateral lateral flexion was observed from 0 to 15 degrees and bilateral lateral rotation was performed from 0 to 20 degrees.  No pain was observed for either the bilateral lateral flexion or the bilateral rotation.  The examiner did observe a muscle spasm in the Veteran's back; however, this was not observed to cause any abnormal curve of the spine or alter the Veteran's gait or stance.  No tenderness was elicited from palpation of the lumbar spine. 

Thereafter, the Veteran was provided with a second VA examination in April 2010.  During this examination, the Veteran was observed to perform forward flexion from 0 to 75 degrees and extension from 0 to 5 degrees.  Bilateral lateral flexion was observed from 0 to 20 degrees and bilateral lateral rotation was performed from 0 to 35 degrees.  The examiner noted that pain was observed only in the extreme ranges of motion.  Following repetitive testing, the examiner reported the Veteran did not experience any additional limitations in his ability to perform forward flexion, extension, bilateral lateral flexion, or bilateral lateral rotation.  Similarly, the examiner reported that the Veteran did not experience any additional weakness, fatigability, discoordination, or other functional impairment with repetitive range of motion testing. 

The April 2010 examiner observed the Veteran was able to walk with a normal gait, and showed no evidence of weakness or incoordination.  Muscle strength testing was full, ("5/5"), for the bilateral lower extremities, with no evidence of muscle atrophy.  Based on the Veteran's subjective reports, the examiner noted that the Veteran experiences limitations, due to pain, after sitting for an hour, standing for 30 minutes, walking three blocks, and lifting objects weighing 50 pounds.  The Veteran does not require a cane for assistance or ambulation, but he does acknowledge wearing a back brace three times of week during periods of increased pain, or flare-ups.  The Veteran denied any periods of incapacitation due to his lumbar spine disability.  

In comparing the April 2009 and the April 2010 VA examinations, the Board observes that the Veteran was capable of performing forward flexion to 75 degrees on both occasions.  Significantly, the April 2010 examiner reported the Veteran only experienced pain towards the extreme end of this range of motion, which would indicate an improvement in the Veteran's pain from the April 2009 examination.  Aside from that particular finding, the Board highlights the objective reports that the Veteran was capable of walking with a normal, unaided gait, and showed no evidence of muscle spasms which cause a contour to his spine or gait abnormality.  Additionally, both examiners reported that repetitive range of motion testing did not produce any additional disability, such as a reduced range of motion, fatigability, weakness, or otherwise. 

During this time, a review of the Veteran's VA treatment records indicates that the Veteran's lumbar spine disability was being managed through conservative modalities.  A series of x-rays of the Veteran's lumbar spine, in June and October 2010, report only "mild" or "age appropriate" findings of degenerative changes.  See Mena VAMC Records.  In June 2010, the Veteran was denied a consultation to neurosurgery.  Notably, the denial states there were "minimal degenerative changes at L5-S1 with no herniation, or neural compression," and thus the note explains, no identifiable injury/abnormality to treat surgically.  The Veteran was advised to continue with conservative treatment, including pain medications and physical therapy.  

The Veteran was also advised to engage in diet an exercise to reduce his weight, and thus reduce the weight/stress on his lower spine. A review of his mental health records, shows the Veteran made multiple statements that he was enrolled in a local gym and was working out three days per week.  See e.g.  Mena VAMC Records, dated January 2010.  These statements provide evidence suggesting that the Veteran's lumbar spine disability did not cause significant functional limitations, as the Veteran was able to and continued to engage in a regular exercise regimen.  The Veteran also engaged in physical therapy for his lumbar spine disability.  See Fayetteville VAMC Records. 

Thereafter, the Veteran was examined in October 2012, as part of his application for an increased rating.  During this encounter, the Veteran was observed to perform forward flexion from 0 to 85 degrees and extension from 0 to 10 degrees.  Bilateral lateral flexion and bilateral lateral rotation were all observed from 0 to 30 degrees.  Following repetitive testing, the examiner reported the Veteran did not experience any additional limitations in his ability to perform forward flexion, extension, bilateral lateral flexion, or bilateral lateral rotation.  However, the examiner did report that the Veteran experienced pain with range of motion beginning at 40 degrees for forward flexion, 0 degrees for extension, 20 degrees for bilateral lateral flexion, and 20 degrees for bilateral rotations.

The October 2012 VA examiner observed guarding and muscle spasms over the Veteran's lumbar spine during the examination and ROM.  However, the examiner reported these symptoms did not cause the Veteran to have an altered gait or an abnormal spinal contour.  Muscle strength testing was normal bilaterally, as were the Veteran's deep tendon reflexes.  Subjective reports from the Veteran indicated that he continues to use a back brace on a regular basis. However, the Veteran did not report any periods of incapacitating symptoms. 

Following this October 2012 VA examination, the Veteran's medical records show he resumed conservative care and treatment for symptoms of his lumbar spine disability.  The Veteran's VA treatment records reflect that he was counseled on losing weight and engaging in a physical therapy program.  Shortly after this October 2012 VA examination, the Veteran took a job out of state, in North Dakota, and did not return for follow-up treatment until approximately one year later.  See Mena VAMC Records, dated October 2013.  

Upon his return for VA care and treatment, the Veteran did not immediately allege or report any worsening of his lumbar spine disability.  Rather, the initial treatment reports indicated that the Veteran reported his symptoms were stable and managed with pain medications.  It was not until January 2015 that the Veteran sought treatment for an increase of his lower back pain, which he reported had gradually worsened over the past four to five months.  Updated radiographic reports of the Veteran's spine indicate he developed spondylolisthesis, reported as grade 1, of the L5 vertebra onto the S1 vertebra.  See  Mena VAMC Records, MRI report dated February 2015.  Upon comparing this recent MRI report with an original report dated in October 2009, the radiologist found the impairment had worsened only "slightly."  The radiologist additionally noted that the Veteran had developed a slight narrowing at the L5-S1 disc interspace.  The Veteran was then advised to continue with conservative treatment, including physical therapy.  

Beginning in April 2015, the Veteran began engaging in physical therapy twice a week.  See Mena VAMC Records.  The Veteran additionally received injections into his lumbar spine, to help manage his lower back pain.  Subjective reports from the Veteran indicate that the epidural injections helped alleviate his pain, although the pain reduction was temporary.  

The Veteran was most recently afforded a VA examination in August 2015.  During this encounter, the Veteran was observed to perform forward flexion from 0 to 75 degrees and extension from 0 to 10 degrees.  Left sided lateral flexion and bilateral lateral rotation were each observed from 0 to 20 degrees.  Right sided lateral flexion was observed from 0 to 15 degrees.  Following repetitive testing, the examiner reported the Veteran did not experience any additional limitations in his ability to perform forward flexion, extension, bilateral lateral flexion, or bilateral lateral rotation.  However, the examiner did report that the Veteran experienced pain with range of motion beginning at 35 degrees for forward flexion, 5 degrees for extension, 10 degrees for bilateral lateral flexion, and 15 degrees for bilateral rotations.  

As the August 2015 VA examination was not being conducted immediately following repetitive use over time, the VA examiner concluded he could not give an opinion, without resulting to speculation, as to whether repetitive use would cause additional functional loss.  Despite this statement, the VA examiner noted that repetitive use during the examination and a review of the Veteran's treatment records, did not suggest that additional limitations would result following increased or repetitive use.  The VA examiner further noted that both the examination of the Veteran, and a review of his medical records, did not suggest he would experience greater limitations during a period of exacerbated symptoms.  As such, the Board finds the Veteran's symptoms do not impede his general functioning to such a degree as to warrant an increased initial disability evaluation for his lumbar spine disability.

The examiner additionally observed that the Veteran experienced muscle spasms within his lumbar spine.  However, these muscle spasms did not result in an abnormal gait or abnormal spinal contour.  The Veteran was assessed to maintain full muscle strength of bilateral hip flexion, bilateral knee extension, and throughout his ankles and feet.  No evidence of muscle atrophy was observed or reported during this examination.  The examiner noted that the Veteran had recently been diagnosed with intervertebral disc syndrome, but that no periods of bed rest had been prescribed for the Veteran.  

Following this August 2015 VA examination, the Veteran continued with conservative care for his lumbar spine disability.  However, on July 17, 2017, the Veteran underwent an elective lumbar spine surgery, a lumbar laminectomy and transformational lumbar interbody fusion.  See Little Rock VAMC, Operative Report.  After this surgery, the Veteran was awarded a period of convalescence and granted a temporary total disability evaluation until October 31, 2017.  Thereafter, the Veteran's disability evaluation returned to 20 percent.  The Board finds no evidence which would support or warrant an increase in the Veteran's disability evaluation prior to this lumbar surgery.  Rather, as discussed in great detail above, the overall medical evidence demonstrate findings consistent with a 20 percent evaluation beginning on February 15, 2009 and continuing through the date of this decision. 

Therefore, based upon a review of the Veteran's longitudinal treatment records, the Board finds the Veteran is not entitled to a rating in excess of 20 percent for his lumbar spine disability.  Despite reports of pain and objective findings of fatigability, muscle spasms, and guarding, the record does not reflects that these symptoms have resulted in the functional equivalent of forward flexion of the lumbar spine to 30 degrees or less as contemplated by a higher evaluation.    There was no evidence of muscle atrophy during this period, and the Veteran was observed to walk with a normal gait and stance.  As such, the Veteran does not meet the criteria for a 40 percent disability evaluation at any point relevant to the period on appeal. 

In addition, the Board finds no evidence to warrant the assignment of separate disability ratings for symptoms of the Veteran's lumbar spine disability.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a, if supported by objective medical evidence.  However, the Veteran is currently separately service connected for radiculopathy of the left lower extremity.  Therefore, additional disability ratings are not for application in the instant appeal.

Similarly, as noted Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code.  However, a review of the evidentiary record indicates the Veteran has consistently denied any symptoms of bladder or bowel impairment.  As such, a separate rating for bowel or bladder impairment is not warranted.

Finally, the Board has additionally considered whether the Veteran's lumbar spine disability warrants the assignment of an extraschedular disability evaluation.  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2016); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008).   If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted.  Id.  See also 38 C.F.R. § 3.321(b)(1).   Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996).  

Having reviewed this case thoroughly, and with due application of the substantive standards for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds that no higher rating is warranted on an extraschedular basis.  The Board does not find that the longitudinal evidence of record shows such an exceptional disability picture that the available schedular evaluation for the service-connected lumbar spine disability is inadequate or impractical for evaluating a disability of the severity experienced by the Veteran.  Rather, a comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.

The symptoms of the Veteran's lumbar spine disability, including pain, fatigue, loss of motion, reduced stamina for walking/standing, muscle spasms, and other factors of functional loss have been fully considered in the rating criteria, to include 38 C.F.R. §§ 4.40, 4.45, 4.59.  Indeed, the Board notes that, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, deformity, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; deformity; instability of station; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board finds that the schedular criteria reasonably describe the Veteran's disability picture in this case.  Specifically, the Board finds that the Veteran's symptoms of reduced range of motion, muscle spasms, fatigability, and reduced stamina for walking/standing are all addressed by the applicable rating criteria, as described above. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  Moreover, 38 C.F.R. § 4.40 addresses normal working movements of the body, lack of coordination, deformity, and "other pathology."  Therefore, the Board finds that there are no symptoms associated with the Veteran's service-connected lumbar spine disability that are not addressed in the Rating Schedule, and by the presently assigned 20 percent evaluation. 

The Board further notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In this case, however, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected disability.  

Based on the foregoing, the Board finds that the requirements for an increased disability evaluation have not been met for the Veteran's lumbar spine disability.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; see also Gilbert, 1 Vet. App. at 53.  Additionally, the Board finds the criteria for the assignment of an extraschedular evaluation for the Veteran's service-connected lumbar spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

Subject to the laws and regulations governing the payment of VA compensation, entitlement to an increased initial rating of 70 percent, but no greater, for the Veteran's service-connected PTSD is granted for the period beginning on and after February 15, 2009. 

Entitlement to an increased evaluation, in excess of 20 percent, for the lumbar spine disability is denied. 





______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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