Citation Nr: 1761166
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-46 705A DATE

THE ISSUES

1. Entitlement to a disability rating in excess of 30 percent prior to September 17, 2007, in excess of 50 percent from September 17, 2007 to November 3, 2017, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for a low back disability, to include degenerative disc disease (DDD) of the lumbar spine.

ORDER

Entitlement to an increased rating for PTSD at any time during the pendency of this claim is denied.

Entitlement to service connection for a low back disability is denied.

FINDINGS OF FACT

1. The preponderance of the evidence shows that the Veteran’s PTSD manifested without occupational and social impairment with reduced reliability and productivity, but with 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, prior to September 17, 2007.

2. The preponderance of the evidence shows that the Veteran’s PTSD manifested without occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, but with occupational and social impairment with reduced reliability and productivity from September 17, 2007, to November 3, 2017.

3. The preponderance of the evidence shows that the Veteran’s PTSD manifested without total occupational and social impairment, but with occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood from November 3, 2017 forward.

4. The Veteran’s low back disability did not manifest during service and is not causally related to the Veteran’s active service.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 30 percent prior to September 17, 2007, in excess of 50 percent from September 17, 2007 to November 3, 2017, and in excess of 70 percent thereafter for PTSD have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1992 to July 1998 in the United States Army.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The September 2009 rating decision increased the Veteran’s disability evaluation for PTSD to 50 percent, effective as of September 17, 2007, and denied the claim of entitlement to service connection for degenerative disc disease of the lumbar spine.

The Board remanded the issue for further development in June 2017. The Board notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The case has been returned to the Board for appellate review.

In an August 2017 rating decision, the Veteran’s evaluation for his PTSD was increased to 70 percent, effective as of November 3, 2015.

VA is required to notify a claimant of what information or evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Compliant VCAA notice was provided in December 2008 and May 2009.

In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran’s service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and any necessary opinions obtained.

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).

1. Entitlement to an increased disability rating for PTSD.

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When determining the appropriate disability evaluation to assign, the Board’s “primary consideration” is the Veteran’s symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).

The Veteran’s service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides, in part as follows:

A 30 percent disability rating is warranted when the Veteran experiences 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), 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).

A 50 percent disability rating is warranted when the Veteran experiences 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 (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships.

A 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130.

In Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim.

The Veteran submitted a claim for entitlement to an increased disability rating in March 2008. The effective date of an increased rating claim may be a date up to one year prior to the date of claim if the increase occurred within one year prior of the Veteran’s claim. The September 2009 rating decision increased the Veteran’s rating for PTSD from 30 to 50 percent effective September 17, 2007. Therefore, the Board will first consider whether an increase occurred between March 2007, one year prior to the claim, and September 17, 2007.

From March 2007 through September 17, 2007, the evidence must show onset of an increase in disability, specifically 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 (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130.

September 17, 2007 is the first date that the Veteran reported with suicidal ideations. Prior to that, in August 2007, the Veteran was afforded a VA examination. The Veteran noted that he was in outpatient treatment once or twice per month. The Veteran was married for four years. He denied having any close friends. The Veteran was neatly groomed. His thought processes were logical and sequential. He denied any auditory or visual hallucinations, but did note periodic nocturnal olfactory hallucinations. He had good eye contact and appeared rather tense and mildly anxious. He noted no suicidal or homicidal ideation. His activities of daily living were adequate. He was oriented and his memory was intact. He denied any distinct panic attacks. He felt sad at times, but noted that anxiety was more problematic. He reported sleep impairment.

The Board notes that the August 2007 VA examination and prior treatment records did not indicate that the Veteran experienced 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, or difficulty in establishing and maintaining effective work and social relationships. Therefore, the Board finds that a disability rating in excess of 30 percent prior to September 17, 2007 is not warranted.

From September 17, 2007, through November 3, 2015, to receive a disability rating in excess of 50 percent, the evidence must show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130.

In December 2008, the Veteran presented requesting to be admitted to the PTSD program. He stated that he had recurring thoughts and flashbacks of his military experience in Somalia. The Veteran noted nightmares and stress. He had olfactory hallucinations of familiar scents that no one else could smell. He also admitted to using maladaptive coping strategies, such as arguing, drinking, and running away. The Veteran appeared in his pajamas with fair grooming and hygiene. He was irritable and anxious, yet cooperative with fair eye contact. His speech was fluent and grammatical with increased rate, tone, and volume. The examiner noted very minimal psychomotor activity. The Veteran’s mood was one of sustained irritation. His affect was congruent with his mood, slightly anxious with hyper-reactivity. His thought processes were linear and organized. The Veteran denied current suicidal or homicidal ideation and denied any audio or visual hallucinations, yet previous notes indicate suicidal ideation plans. His cognition appeared intact and he was oriented. The Veteran’s insight was limited and his judgment impaired. The Veteran lived with his wife and children. The Veteran had multiple jobs since 1999 and has not stayed at one job for more than 2 years.

A January 2009 residential assessment for PTSD showed a return of his PTSD symptoms upon taking Chantix to stop smoking. The Veteran reported nightmares, hallucinations, smelling things, night terrors, and high anxiety. The nightmares occurred a few times per month. He reported being irritable and angry. He tried to avoid triggers and crowds. The Veteran was alert and oriented. He had a good memory. The examiner noted irritability. He had no suicidal ideation, but noted depression. The Veteran experienced nightmares and he was irritable, jumpy, and avoidant. The examiner diagnosed PTSD and major depression in remission.

In a July 2009 VA treatment record, the Veteran reported that his PTSD symptoms were elevated. He was not organizing well. He reported a few nightmares. His mood was down. He was neatly groomed with an anxious affect. His thoughts were a little scattered. His mood was stressed. He showed no suicidal or homicidal ideation and no psychotic symptoms. His judgment and insight were fair.

November 2009 VA treatment records showed that the Veteran presented as neatly groomed and cooperative. His thoughts were slightly scattered but overall organized. His mood was down and anxious. His affect during the session was that of anxiety and some sadness. He denied any recent suicidal or homicidal ideation and denied any psychotic symptoms. His judgment and insight were considered poor to fair at the present time. The Veteran was diagnosed with PTSD.

In an October 2010 VA treatment record, the Veteran reported that his baby daughter was the light of his life. He had increasing difficulty in his job and was able to apply for and get an internship in a different position. The Veteran reported that he was getting along fairly well with his wife. The Veteran stated that he continued to have nightmares a couple times a week. The Veteran had occasional suicidal thoughts, but reported no plan or intent. He was neatly groomed and cooperative. His thoughts were overall organized and goal-directed. His affect was somewhat anxious and a little sad. He reported his mood was better. He denied any recent suicidal or homicidal ideation and there was no evidence of psychotic symptoms.

The Board finds that the evidence during this period did not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran did not present with obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships.

The Board acknowledges that the Veteran reported difficulty in adapting to stressful circumstances. The Board finds, however, that this single symptom did not lead to deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood.

The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of his PTSD. These include, but are not limited to nightmares and flashbacks. Specifically, the Board has also considered many of the Veteran’s symptoms as “like or similar to” the schedular rating criteria disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. See Mauerhan, 16 Vet. App. 436.

Based on the evidence cited above, and after resolving all doubt in the Veteran’s favor, the Board finds that the manifestations of the Veteran’s PTSD do not more nearly approximate the criteria for a 50 percent rating prior to November 3, 2015.

From November 3, 2015, forward, to receive a disability rating in excess of 70 percent, the evidence must show 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name.

The Veteran was afforded a VA examination in November 2015. The examiner diagnosed chronic, severe PTSD. The examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran reported having close family relationships. He was married for 11 years. The marriage was described as stable. Although he is close to family, he acknowledged that he had not been going to visit. Veteran reported one close friend, but lost contact with him. The Veteran had a good relationship with his spiritual adviser. The Veteran reported being able to get a job, but acknowledged difficulty keeping or staying in a job. The Veteran reported switching job positions often. He reported missing at least one day of work per week, but was able to manage by working remotely. The examiner noted recurrent, involuntary, and intrusive distressing memories, recurrent distressing dreams, dissociative reactions, intense or prolonged psychological distress at exposure to cues, marked physiological reactions to cues, avoidance, persistent and exaggerated negative beliefs or expectations, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement, persistent inability to experience positive emotions, irritable behavior and angry outbursts, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbances. The examiner also noted other symptoms, to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and neglect of personal appearance and hygiene. The Veteran was dressed appropriately. He demonstrated evidence of anxiety. He seemed bright and concerned about his increasing difficulties in functioning. The Veteran expressed strong negative beliefs, but denied suicidal ideation, intent, or plans.

In December 2015, the Veteran presented for help with sleep disturbance, irritability, and anxiety related to his PTSD and other current life stressors. The Veteran reported nightmares related to his PTSD. He reported lack of energy, anxiousness, irritability, and a lack of effective communication skills. He noted feelings of hopelessness. Mental status examination showed that the Veteran was alert and appropriately oriented. He was casually dressed and well groomed. Speech was normal in rate and tone. Thought content appeared to be clear and relevant to the topic with no apparent psychotic features. Attention and memory appeared within normal limits. Mood was dysthymic with congruent affect and appropriate range. The Veteran displayed adequate insight and judgment. The Veteran denied current suicidal or homicidal ideation. The Veteran was assessed to be at a mild to moderate risk of harm to self and minimal risk of harm to others.

In a September 2016 VA treatment record, the Veteran reported that he became easily irritated and angry when he had to be screened for symptoms because he did not want to jeopardize his job. The Veteran noted insomnia most nights. He reported that stress at work tends to exacerbate other symptoms, to include anger, irritability, and lack of sleep. He reported occasional suicidal ideation, but denied any plan or intent of harming or killing himself. He also denied any current thoughts, plans, or intent of harming or killing anyone else. The Veteran loved his family, was involved in a Christian faith group, and did not want to jeopardize his career. He appeared alert and oriented. His speech was of normal rate, volume, and rhythm, and was described as clear and fluent. His mood was depressed and his affect was consistent with his mood. He had normal attention and concentration. His thought processes were normal, linear, and goal-oriented. His judgment and insight were fair. The Veteran endorsed chronic symptoms of depression with no periods of stable mood including feeling down, depressed, and hopeless, having difficulty sleeping, trouble concentrating, irritability, feeling tired, little interest in doing pleasurable activities, and occasional suicidal ideation. The examiner diagnosed persistent depressive disorder and PTSD by history.

During a March 2017 mental status examination, the Veteran noted depression that was sometimes severe and incapacitating. He had a history of explosive anger, constant instability, insomnia, and low energy. He had a history of good appetite, toxic dreams, and severe depression. The Veteran experienced unstable mood with irritability, intrusive memories, numbing, periods of hyperarousal, agitation, a history of explosiveness, impaired concentration, and racing thoughts. The examiner diagnosed PTSD, major depressive disorder, bipolar disorder, and persistent depressive disorder. The examiner noted that the Veteran was well groomed and cooperative, but guarded. His motor activity was tense. His affect was labile and his mood was described as depressed and anxious with intermittent anger. The Veteran’s speech was normal and fluent. His thought processes were intact. He exhibited no hallucinations and no phobia. He had a history of suicidal ideation, most recently more than a year prior, and homicidal ideation after the military. The Veteran was fully oriented and his memory was intact. His judgement was also intact. The examiner noted that the Veteran seemed to relax as the session went on.

April 2017 to May 2017 treatment records showed that the Veteran was anxious, tense, fidgety, and less defensive, but remained overcontrolled.

In June 2017, the Veteran attended a mental health PTSD assessment. The Veteran noted frustration and anger with nightmares and intolerance of people. The Veteran was alert and oriented. He was appropriately groomed. He was guarded throughout the interview. His mood was depressed and irritable with congruent and mildly hostile responses. His affect remained constricted with no noticeable variation while describing the trauma. His speech was within normal limits. Thought content appeared to be clear, organized, and relevant to the topic at hand with no psychotic features. He had limited insight and fair judgment. The Veteran denied any impulse or ideation to harm himself or others. The Veteran reported frequent intrusive thoughts and anger at his supervisor, resulting in his leaving work. He was unable to directly relate any reminders of Somalia into his anger or frustration, but reported feeling helpless that he cannot meet conflicting demands at work and the feelings of anger and frustration make him feel trapped. He leaves work on FMLA when he is upset. The Veteran reported nightmares several times per week. He reported emotional or physical triggers about twice in the prior month. He avoided work when he felt helpless, angry, and stuck. He reported negative thoughts and feelings of anger. He also reported that he was less interested in playing with his kids and found it hard to get out of bed or look forward to anything. The Veteran frequently yelled and coworkers complained that he was unapproachable. He experienced hypervigilance when in public. He also noted recent problems with concentration. The examiner noted that the Veteran’s symptoms overlap with his major depression.

The Veteran was afforded a VA examination in June 2017. The examiner diagnosed moderate to severe PTSD, major depressive disorder more likely than not secondary to PTSD, and alcohol use disorder in remission. The examiner determined that the Veteran’s symptoms can be partially differentiated. The Veteran’s re-experiencing of trauma such as nightmares, intrusive trauma memories, and emotional distress related to cues of the trauma are reflective of PTSD. Similarly some of his symptoms of hyperarousal including hypervigilance, and exaggerated startle response reflect his PTSD. Other symptoms, including sleep disturbance, irritability, other mood changes, avoidance, withdrawal, and isolation, reflected a combination of PTSD and depressive symptoms. The examiner noted occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. It was not possible for the examiner to differentiate what portion of the occupational and social impairment indicated above was caused by each mental disorder. The examiner found that the Veteran’s PTSD and major depression are interrelated and overlapping and it was not possible to reliably differentiate the degree of impairment caused by each one. The Veteran has been married for 14 years and has four children in total, including one from a prior marriage. The Veteran reported regular nightmares replaying what happened in Somalia. He noted recurring, intrusive thoughts on a regular basis. He experienced survivor’s guilt. He avoided crowds and isolated himself. He startled easily. His mood was depressed. He enjoyed his kids for brief moments, but had a low tolerance. He was not homicidal or suicidal, though he thought about it a lot, but would never do it. He endorsed hopelessness and helplessness. PTSD symptoms included recurrent, involuntary, and intrusive distressing memories, recurrent distressing dreams, intense or prolonged psychological distress at exposure to internal or external cues, avoidance, persistent and exaggerated negative beliefs or expectations, persistent distorted cognitions about the cause or consequences of the traumatic event, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The examiner noted other symptoms to include depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was casually dressed with poor eye contact. His grooming and hygiene were fair. His posture was somewhat stooped, his gait was slow, and his psychomotor activity was reduced. His manner of interaction was respectful and cooperative. His speech and communication were normal in rate, rhythm, tone, and volume. His thought processes were clear, logical, linear, coherent, and goal-directed. His thought content was relevant and appropriate, as was his behavior. He had no history of delusions or hallucinations and he denied suicidal or homicidal ideation. His mood was depressed and his affect was congruent and often tearful.

An August 2017 private treatment record showed diagnoses of PTSD, major depressive disorder, and bipolar disorder. The Veteran was easily agitated and volatile at times with a pattern of verbal assault, low energy, chronic insomnia, decreased appetite, bad dreams, hypervigilance, and hyperarousal. His mood was unstable and he had periods of intrusive memories with numbing of responsiveness and abreactions that were still vivid. He experienced racing thoughts with impaired concentration and comprehension. He was often volatile at work because he was unable to tolerate stress very well and could become verbally abusive to coworkers. Due to these symptoms, the examiner noted that the Veteran is unable to work.

The Board notes that the symptoms cited above do not indicate total occupational and social impairment. The Veteran did not exhibit gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent ability to perform activities of daily living, disorientation to time or place, or memory loss for names of closest relatives, own occupation, or own name.

The Board again notes that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board notes that the Veteran also experienced recurrent, involuntary, and intrusive distressing memories, recurrent distressing dreams, intense or prolonged psychological distress at exposure to internal or external cues, avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, and problems with concentration. These symptoms have resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Specifically, the Board has also considered many of the Veteran’s symptoms as “like or similar to” the schedular rating criteria near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, difficulty in adapting to stressful circumstances (including work or work like setting), and an inability to establish and maintain effective relationships. See Mauerhan, 16 Vet. App. 436.

Based on the evidence cited above, and after resolving all doubt in the Veteran’s favor, the Board finds that the manifestations of the Veteran’s PTSD did not result in total occupational and social impairment from November 3, 2015 forward and therefore did not more nearly approximate the criteria for a 100 percent rating during that time period. As such, the Board finds that the preponderance of the evidence is against the claim.

2. Entitlement to service connection for a low back disability.

The Veteran contends that he has a back disability that manifested during service and is due to his having to carry heavy tool boxes and other gear for great distances.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

The Veteran has a current diagnosis of DDD of the spine; therefore the question for the Board is whether the Veteran’s current low back disability manifested during service or is causally related to his active service.

The Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran’s low back disability did not manifest during service and is not causally related to service.

The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of a back disability. The Veteran has stated that he did not complain of a back disability as he was self-treating with alcohol. The Board notes, however, that the Veteran complained of other orthopedic conditions during that time period and did not note any low back complaints. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

The Board notes that the Veteran claimed service connection for multiple orthopedic issues, including his wrist, ankle, and knee, but did not note any back pain in August 1998. In the September 1998 general medical VA examination for joint complaints, the Veteran again noted knee, ankle, and wrist complaints, but did not indicate any low back complaints. In an August 1998 treatment record, the Veteran’s back was described as having good range of motion.

The Veteran was afforded a VA examination in July 2017. The examiner diagnosed degenerative arthritis of the spine. The examiner noted that the Veteran had some minimal progressive arthritis of his spine. An MRI (magnetic resonance image) in 2008 documented only minor degenerative disc changes at L2-3 through L5-S1 without significant canal or foraminal stenosis. An MRI in June 2017 reported significant arthritic findings with narrowing of the central canal and lateral recess/foraminal stenosis. The examiner noted that this documents significant progression of the disease process over a period of almost a decade. The examiner also noted that in September 1998, the Veteran reported with a right index finger that was injured playing basketball, indicating that the Veteran was feeling well enough to play basketball and was not having back issues. In December 1998 the Veteran had complaints of his lower back hurting him. The July 1999 history and physical did not note any back condition in the history section. The physical section noted good range of motion. Physical examination dated December 2000 noted a history of back pain for five years with an essentially normal physical examination and a recommendation of using Tylenol if needed. Radiographs in January 2007 indicated that the Veteran had back pain with running, but those radiographs were interpreted as normal. Radiographs obtained in March 2008, 10 years following military service, demonstrated some very early disc deterioration. A March 2008 CT scan of the spine documented only age appropriate changes. An MRI dated April 2008 noted minor degenerative changes which aligned with the age related changes noted on CT scan. An MRI dated January 2011 noted much more advanced degenerative change and disc bulge indicative of injury. The examiner found that the Veteran’s back condition was less likely than not incurred in or the result of military service. The examiner noted that review of the Veteran’s records did not document a back condition within one year of discharge. The examiner acknowledged the subjective notations of back pain, but also a note of injury incurred while the Veteran was playing basketball. As he was able to play basketball, he did not have a significant back disability at that point in time. A CT scan 10 years post-military service documented only age related changes. An MRI in the same time period demonstrated similar findings. Given the substantial amount of time from military service until a substantial back condition was diagnosed, the examiner found that this condition was less likely than not incurred in the military.

While the Veteran believes that his current low back disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a specific medical disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his low back disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current low back disability is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions.

The Board acknowledges the Veteran’s report of subjective back pain during service. The Board notes, however, that the Veteran was not diagnosed with a disability during service. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir.2001).

The Board notes that the Veteran’s current subjective complaints of back pain during service do not indicate a diagnosed disability during service. The Veteran reported other orthopedic complaints, but did not indicate any low back disability immediately post-service. The Veteran’s radiographs were still normal in January 2007, many years after separation from service. The subsequent radiographs showed only minimal changes consistent with age-related changes. Finally, the VA examiner in July 2017 reviewed the entire record and determined that the Veteran’s current low back disability was less likely than not incurred in the military.

The Board acknowledges that the Veteran’s representative believes the opinion was inadequate as the examiner cited that the Veteran was well enough to play basketball at a time when he asserted he had low back pain. The Board notes that the examiner did not solely rely on the Veteran’s ability to play basketball in forming his decision and more heavily relied upon the normal findings post-service and the amount of time between service and a diagnosis. Additionally, the examiner noted the finding of age-related changes when the Veteran was diagnosed with a low back disability post-service. Therefore, the Board finds that the July 2017 examiner’s opinion was adequate and included a sufficient rationale.

Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disability. As the preponderance of the evidence is against the claim for service connection for a low back disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102.

______________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel

Copy mailed to: The American Legion

Department of Veterans Affairs

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