Citation Nr: 1760250
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 14-07 395 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
1. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
2. Entitlement to restoration of 20 percent rating for a service-connected cervical spine disability, to include whether an increased rating is warranted.
3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
A disability rating of 70 percent, but not higher, for PTSD is warranted.
Restoration of a 20 percent disability rating for the cervical spine disability is granted.
A disability rating in excess of 20 percent for the cervical spine disability is denied.
Since October 1, 2007, TDIU is granted.
Prior to October 1, 2007, TDIU is denied.
FINDINGS OF FACT
1. For the entire period, the Veteran’s PTSD has been manifested by symptomatology which more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, than it does occupational and social impairment with reduced reliability and productivity, but which does not more nearly approximate total occupational and social impairment.
2. In May 2012, the RO reduced the rating for the cervical spine disability from 20 percent to 10 percent, effective May 30, 2012; this action did not result in a reduction of the 70 percent combined rating.
3. At the time of the rating reduction, there had not been a sustained improvement in the Veteran’s actual symptomatology and in the Veteran’s ability to function under the ordinary conditions of life and work.
4. For the entire period, the Veteran’s cervical spine disability has been manifested by painful motion of the neck, with forward flexion greater than 15 degrees, but not greater than 30 degrees.
5. For the entire period, the schedular TDIU criteria have been met.
6. Since October 1, 2007, the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation.
7. Prior to October 1, 2007, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation.
CONCLUSIONS OF LAW
1. For the entire period on appeal, the criteria for a disability rating of 70 percent for PTSD have been met; the criteria for a rating in excess of 70 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017).
2. The criteria for restoration of a 20 percent disability rating for the cervical spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.951, 4.71a, Diagnostic Code 5242 (2017).
3. For the entire period on appeal, the criteria for a disability rating in excess of 20 percent for the cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017).
4. Since October 1, 2007, the criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2017).
5. Prior to October 1, 2007, the criteria for TDIU were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant is a veteran (the Veteran) who had active duty service from October 1966 to August 1969, and from December 1969 to December 1972.
This appeal comes before the Board of Veterans’ Appeals (Board) from rating actions of the RO in Nashville, Tennessee.
In June 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). A transcript of the hearing is associated with the claims file. The Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103.
Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.
A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).
After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.
Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD)
In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran’s psychiatric symptoms and the veteran’s capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner’s assessment of the level of disability at the moment of examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126.
The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130.
By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992).
The schedular criteria incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. Since August 4, 2014, VA has required a diagnosis of a mental disorder that conforms with the DSM-5. For claims prior to that date, VA required a diagnosis that conformed with the DSM-IV-TR. See Schedule for Rating Disabilities: Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093, 45,093 -94 (Aug. 4, 2014 (amending 38 C.F.R. § 4.125)). The DSM-5 eliminated the Global Assessment of Functioning (GAF) scores used in the DSM-IV.
The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. § 4.126.
If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).
Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities:
A 10 percent rating is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.
A 30 percent rating is warranted for PTSD if there is 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, or mild memory loss (such as forgetting names, directions, recent events).
A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating, may be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).
A 100 percent rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. 4.130, Diagnostic Code 9411.
In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). However, during the pendency of this claim, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013) (DSM-5). In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV.
The current appeal arises from a claim of entitlement to service connection for PTSD that was received at the RO on January 23, 2006. In a February 2012 rating decision, the RO granted service connection for PTSD, assigned an initial rating of 30 percent under Diagnostic Code 9411, and assigned an effective date for the grant of service connection of January 23, 2006.
The report of an April 2010 VA PTSD Examination reveals the Veteran’s complaint of problems with sleep latency and sleep maintenance since returning from Vietnam. He reported combat-related nightmares 2-3 times per week in addition to frequent night sweats. His sleep was restless and fitful to the point that he and his wife would sleep in separate beds. The Veteran indicated that he was easily awakened by noise and then could not get back to sleep. He said that he was awake 3-4 times per night. He added that he was fatigued and irritable as a result of his poor sleep quality.
The Veteran reported a history of high anxiety since his return from Vietnam. He described being overwhelmed by his circumstances at times and was easily frustrated. He noted feeling shaky and nervous during these times and was also easily frustrated and irritable as well. The Veteran had a low frustration tolerance and had difficulty keeping his temper in check. He noted that he was attending an anger management group and had been through such training in the past. He reported a history of verbal aggression and noted that he was verbally abusive to several of his former wives. The Veteran’s psychosocial and functional status was fair. While he had a supportive relationship with his present wife, their marriage had been up and down. He had 5 failed marriages and was estranged from his children. Aside from making jewelry, he had few interests and was socially avoidant.
On examination, the Veteran was appropriately dressed; speech was unremarkable; affect was constricted; mood was dysphoric; attention was intact; orientation to person, time, and place was intact. Thought process was unremarkable; thought content was remarkable for preoccupation with one or two topics. There were no delusions or hallucinations. He had no obsessive or ritualistic behavior. He had no suicidal ideation or homicidal ideation. Impulse control was fair. He was able to maintain minimum personal hygiene. The Veteran reported a history of high anxiety, which the examiner assessed as panic attacks. Testing of memory was entirely normal. He was well oriented and provided an accurate personal history.
The Veteran reported that he did not like being in crowds of people and did not like going shopping. When he is at the store, he said that he always stands between the cart and the cooler. He noted that he is always checking his back as well. The Veteran also chooses times to go shopping when he knows there will be less people to deal with. When he is in a restaurant he sits with his back to the wall and scans the area. He denied episodes of road rage, but acknowledged that he does not like driving in congested areas. The Veteran experienced intrusive thoughts about his experiences in Vietnam nearly every day. Although he tried to avoid these thoughts, he had difficulties blocking them and avoided talking about his experiences with others. The Veteran said that these memories were associated with feelings of depression and tended to trigger anxiety. His anxiety was also frequently triggered by stimuli that reminded him of his tour of duty in Vietnam (e.g., certain sounds, loud noises). He no longer watched war movies or news reports about the current war as these had triggered flashbacks and aggravated his symptoms. The Veteran reported symptoms consistent with emotional numbing and had difficulty expressing his emotions to his loved ones.
The April 2010 VA examiner assigned a GAF score of 60-65. The examiner found that there was not total occupational and social impairment. However, PTSD signs and symptoms resulted in deficiencies in thinking, family relations, work, and mood. There was no deficiency in judgment.
The report of a December 2011 VA PTSD Examination reveals the same examiner who conducted the prior examination reported very similar descriptions of symptoms as the previous report, and specifically noted that his status was largely unchanged from prior VA examination. The Veteran continued to get along well with his wife and continued making jewelry. The Veteran reported few friends, noting that he has had difficulties getting along with others due to his temper and irritability. He added that he tries to stay to himself as much as possible because of anxiety and a low tolerance for frustration. He was appropriately dressed; speech was spontaneous and clear; affect was constricted; mood was dysphoric; attention was intact; orientation to person, time, and place was intact. Thought process was unremarkable; thought content was remarkable for preoccupation with one or two topics. There were no delusions or hallucinations. He had no obsessive or ritualistic behavior. He had no suicidal ideation or homicidal ideation. Impulse control was fair. He was able to maintain minimum personal hygiene. While the examiner found that the Veteran did not have total occupational and social impairment, he found that PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work, and mood. The GAF score assigned was 60-65.
VA outpatient mental health records can be summarized as showing persistent relationship problems with the Veteran’s wife and family, a history of multiple failed marriages, social aversion, persistent sleep disturbance, restless sleep, and nightmares, episodes of tearfulness, impulsivity, impatience, unprovoked anger and irritability, including a history of aggravated assault charges, recurrent depression, anxiety, impaired concentration and attention, and unconfirmed complaints of memory impairment. Those records also show generally normal speech, full orientation, appropriate appearance and grooming and an absence of hallucinations, delusions, suicidal ideation and homicidal ideation.
At the Board hearing, the Veteran testified that he did not have good relations with his family members because he is “bull-headed” and angry a lot. He reported frequent periods of rage. In response to prompting from his representative, he essentially endorsed each of the symptom examples listed under the 70 percent rating.
After a review of all of the evidence, the Board finds that a 70 percent rating for PTSD is warranted.
The Board notes that application of the evidence to the rating criteria is not a matter for determination by VA examiners, but must be determined by VA adjudicators. That said, the finding of the VA examiner in April 2010 and February 2011 that the Veteran’s PTSD signs and symptoms caused deficiencies in work, family relations, mood, and thinking, and the finding in February 2011 that there was also a deficiency in judgment, is competent and probative evidence. While the Board must weigh all of the evidence and not just these examination reports, the evidence appears to support this finding. The Veteran’s description of his symptoms and that of his spouse, to VA treatment providers and VA adjudicators reflects a turbulent environment surrounding the Veteran which impacts virtually all areas of his life. His anger and isolation has clearly resulted in deficiencies in mood, family relations, and work. Moreover, the descriptions of impulsive behavior in response to life stresses would also implicate a deficiency in judgment. His wife has described what she believes to be a deficiency in thinking and memory. In sum, the Board finds that there is at least an approximate balance of the evidence in favor of a 70 percent rating for PTSD for the entire period. With resolution of all reasonable doubt in favor of the claim, the Board finds that a 70 percent rating is warranted.
While a 70 percent rating is warranted, the Board finds that a preponderance of the evidence is against entitlement to a rating of 100 percent for PTSD. The Veteran’s PTSD signs and symptoms are not productive of total occupational and social impairment. The Veteran has been able to engage in a jewelry making business. With acknowledgment of the frustration expressed by the Veteran over his aversion to interacting with others, this demonstrates that there is not total occupational impairment.
With acknowledgement of his, at times, tumultuous relations with his spouse and family, he has also described periods where he and his spouse have been getting along. In a February 18, 2010, VA Mental Health Note, he reported that he and his spouse were getting along well “now.” This demonstrates that he does not experience total social impairment. In short, the gross impairment of behavior resulting in severe disorientation of the individual which is contemplated by the 100 percent rating criteria, is simply not evident in this case at any time.
While the Veteran has requested that the Board remand this issue for a new examination, the Board has accorded the Veteran the benefit of the doubt with respect to entitlement to a 70 percent rating. There is no suggestion that the Veteran experiences total occupational and social impairment. Accordingly a remand for a medical examination is not necessary. See Soyini v. Derwinski, 1 Vet. App. 541 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).
In sum, the Board finds that the Veteran’s PTSD has been manifested by symptomatology which more nearly approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, than it does occupational and social impairment with reduced reliability and productivity, but which does not more nearly approximate total occupational and social impairment. Accordingly, the Board concludes that a 70 percent rating is warranted for the entire period. However, the Board finds that a 100 percent rating is not warranted for any period. To the extent a higher rating is sought, as a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.
Entitlement to restoration of 20 percent rating for a service-connected cervical spine disability, to include whether an increased rating is warranted.
The current appeal arises from a claim of entitlement to service connection for a cervical spine disorder that was received at the RO on September 30, 2009. In an August 2010 rating decision, the RO granted service connection for a cervical spine disorder, assigned an initial rating of 10 percent under Diagnostic Code 5242, and assigned an effective date for the grant of service connection of September 30, 2009. In a May 2012 rating decision, the RO decreased the rating for the cervical spine to 10 percent, effective May 30, 2012, based on the results of a May 2012 VA examination. The RO correctly noted that the reduction of this particular disability rating would not result in a reduction of the combined rating of 70 percent.
Prior to reducing a disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see Brown v. Brown, 5 Vet. App. 413, 420 (1993).
These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000).
When a disability has not become stable and is likely to improve, and the disability rating has not continued at the same level for at least five years, a reexamination disclosing improvement in that disability will warrant a reduction in its rating. 38 C.F.R. § 3.344(c). The duration of the disability rating at issue is measured by the effective date assigned for that rating until the effective date of the actual reduction. Brown, 5 Vet. App. at 418 (1993).
If a reduction in a service-connected disability rating is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is allowed for response. Id. Furthermore, the effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e), (i).
Because the 20 percent evaluation was effective September 30, 2009, and reduced to 10 percent effective May 30, 2012, it had not been in effect for five years or more. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are not determinative in this instance. Under 38 C.F.R. § 3.344(c), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. Therefore, to determine whether a restoration is warranted, the Board must determine whether there was an improvement in the disability and that the improvement actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.
Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include degenerative arthritis (Diagnostic Code 5242).
A rating of 100 percent requires unfavorable ankylosis of the entire spine.
A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine.
A rating of 30 percent requires forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine.
A rating of 20 percent requires forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 rating of 10 percent is assigned with forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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 or more of the height.
For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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. 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. 38 C.F.R. § 4.71a, General Formula, Note (2) (See also Plate V).
The report of a September 2010 VA Spine Examination reveals the Veteran’s complaint of constant severe and sharp pain experienced daily in the cervical spine. On examination, the Veteran’s posture was normal; head position was normal; and there was symmetry in appearance. The Veteran’s gait was also normal. There were no abnormal spinal curvatures or ankylosis. There was no guarding and no spasms. Forward flexion was measured to 30 degrees. Extension was measured to 30 degrees. Lateral flexion was measured to 30 degrees, bilaterally. Rotation was measured to 65 degrees, bilaterally. There was no additional limitation after repetitive range of motion testing.
The report of a May 2012 VA General Medical Examination reveals forward flexion was measured to 45 degrees; there was no objective evidence of pain. Extension was measured to 30 degrees with onset of pain at 30 degrees. Right lateral flexion was measured to 30 degrees, with onset of pain at 30 degrees. Left lateral flexion was measured to 25 degrees, with onset of pain at 30 degrees. Rotation was measured to 60 degrees, bilaterally, with onset of pain at 60 degrees. There was no additional limitation of motion after 3 repetitions. Functional loss consisted of less movement than normal and pain on movement. There was no localized tenderness, spasm, or guarding. The Veteran reported no flares.
While the RO appears to have based its decision on findings from a single examination showing forward flexion greater than 40 degrees, the evidence does not end there. A January 9, 2013, VA Pain Clinic Consult reveals that forward flexion was only measured to 30 degrees. Extension was measured to 20 degrees. Rotation was described as 2/3 of normal. (Legacy Content Manager record 01/07/2014 at 80). A January 22, 2013, Physical Therapy Consult reveals range of motion of the cervical spine was only 25 percent in all movements. Muscle testing was 3-/5. Id at 115. While this evidence is after the decision was made to reduce the rating, it is still pertinent to a determination as to whether the examination results relied upon by the RO represent an actual improvement in the disability. These results appear to undermine a finding that the May 2012 examination results demonstrate an improvement either in the condition or in the Veteran’s ability to function under the ordinary conditions of life and work.
Of particular note in determining whether there has been an improvement in the service-connected condition is the fact that a May 2012 cervical spine X-ray taken in conjunction with the VA examination was interpreted as showing no change since the September 2010 X-ray, with the possible exception of slight increase in C3-4 foraminal stenosis on the right. In other words, the condition was actually worse, if only slightly. A June 2012 MRI reveals no significant changes from the May 2012 X-ray, but notes that there was marked, diffuse, degenerative changes in the cervical spine and mild anterolisthesis of C4 upon C5 and of C7 upon T1, likely of degenerative origin. These reports provide probative evidence that there was no improvement in the underlying condition at the time of the reduction.
Moreover, VA outpatient treatment records show that the Veteran was undergoing physical therapy in January 2014 for neck discomfort, spasms, and pain. While pain was noted on the September 2010 and May 2012 examinations, spasms were not noted. Id. at 2. A July 9, 2013, VA Primary Care Note reveals loss of cervical lordosis. Id at 48. An October 7, 2013, Psychology Note reveals the Veteran’s report that he was probably going to have neck surgery. Id at 26.
After a review of all of the evidence, the Board finds that, at the time of the rating reduction, the evidence at best reflected a temporary improvement in symptoms, but did not reflect, and still does not reflect, that there was an actual change in the disability, or that there was an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Accordingly, the Board finds that restoration of the 20 percent disability rating is warranted.
The Board further finds that the Veteran’s service-connected cervical spine disability is not productive of signs and symptoms that more nearly approximate any rating in excess of 20 percent than they do the criteria for a 20 percent rating.
The only evidence suggestive of a higher rating is the finding of a physical therapist on January 22, 2013, that range of motion of the cervical spine was 25 percent in all movements. If accurate, this is suggestive of the criteria for a 30 percent rating. However, the rating criteria require accurate measurement of joint motion with use of a goniometer. See 38 C.F.R. § 4.46.
Moreover, the rating criteria specify degrees of limited motion and not percentages of normal motion. The lack of specificity in the description of the physical therapist at least suggests it is an estimate involving some degree of speculation, and therefore not as accurate as the other measurements. While it is competent and probative evidence, it is accorded decreased weight in comparison with the measurements expressed in terms consistent with the rating schedule. Those measurements establish that the criteria for a 20 percent rating are met. However, no higher ratings are warranted.
To the extent a higher rating is sought, as a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15.
A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.
The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a).
A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a).
In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Veterans Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran’s actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.
In this case, service connection is in effect for 4 separate disabilities of the left index and middle finger, each assigned a 10 percent rating since December 12, 1972; for a right knee disability assigned a 0 percent rating from October 20, 2003, to December 1, 2008, a 10 percent rating from December 1, 2008, to December 15, 2009, a 100 percent rating from December 15, 2009, to February 1, 2010, a 10 percent rating from February 1, 2010, to May 18, 2012, a 100 percent rating from May 18, 2012, to July 1, 2013, and a 30 percent rating since July 1, 2013; for a left knee disability assigned a 0 percent rating from October 20, 2003, to December 1, 2008, and a 10 percent rating since December 1, 2008; for PTSD rated at 70 percent since January 12, 2006, for a cervical spine disability rated at 20 percent from September 30, 2009, to May 30, 2012, and 10 percent since May 30, 2012, and for neurological impairment of the left and right upper extremities each rated at 20 percent since September 24, 2012.
The combined rating has been at least 80 percent since January 12, 2006. Accordingly, the schedular TDIU criteria are met for the entire period.
The Veteran’s work history includes working on computers until approximately 1982, working in construction until approximately 2003, as well as landscaping and lawn maintenance, and self-employment in a company making stained glass. The Veteran reported that he became too disabled to work full time in October 2007. While the Veteran and his spouse have subsequently engaged in making and selling jewelry which they sell on the Internet, there is no indication that this constitutes substantially gainful employment.
The Board observes that the Veteran’s service-connected disabilities are productive of substantial physical and mental impairment. His musculoskeletal conditions are manifested by significant impairment in standing, walking, and carrying. The Veteran’s spouse provided a written account as to his difficulties walking and climbing stairs due to his knees. She stated he has fallen on stairs recently. These service-connected musculoskeletal conditions also impair his ability to hold and manipulate objects. While the Board acknowledges the Veteran has substantial nonservice-connected impairment due to hand tremors, these impairments have not been medically distinguished from his service-connected upper extremity neurological impairment and finger amputations. The Board must therefore consider his impairment of holding and manipulating objects as service-connected. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so).
In addition, the Veteran’s mental disorder impairs his ability to interact with other individuals, impairs his sleep and alertness, and impairs his judgment and thinking.
Finally, his service-connected disabilities have required the use of prescription medications which, while ameliorating some of the effects of his disabilities, cause impairment in other areas, such as drowsiness and dizziness. See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability).
While the Board cannot exclude the possibility that the Veteran retains the ability to perform some form of substantially gainful occupation in light of his distinct disability picture, to be entitled to TDIU, it is not required that all possible substantially gainful occupations be ruled out. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975); Moore v. Derwinski, 1 Vet. App. 356, 359 (1991).
Here, in consideration of the Veteran’s occupational experience and his service-connected impairment, the Board finds that, since October 1, 2007, the evidence establishes that a substantially gainful occupation is not reasonably within the Veteran’s capabilities. Prior to that, the Veteran has stated that he was engaged in a substantially gainful occupation. Where a claimant was actually employed at a substantially gainful occupation, such employment was deemed to constitute, as a matter of law, “actual employability” for the purposes of 38 C.F.R. § 3.343(c)(1). Faust v. West, 13 Vet. App. 342 (2000).
In sum, the Board finds that the schedular TDIU criteria have been met for the entire period, and that, since October 1, 2007, the Veteran has been unable to secure or follow a substantially gainful occupation due to service-connected disabilities. Accordingly, the Board concludes that, since October 1, 2007, TDIU is warranted. Prior to October 1, 2007, TDIU is not warranted.
The Board has considered whether, in light of the grant of a 70 percent rating for PTSD, as well as TDIU, any level of SMC is warranted. The Veteran has been assigned SMC under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of chondromalacia patella, right knee rated temporarily at 100 percent and additional service-connected disabilities ratable at 60 percent or more. That award expired on July 1, 2013. The Board notes that the 100 percent rating was supported by a single disability, the right knee disability. The 100 percent rating assigned herein is on the basis of TDIU. While such a rating can be considered a single 100 percent rating, this is only permissible if the TDIU can be sustained by a single service-connected disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008).
In this case, it is the combined effect of the Veteran’s service-connected disabilities that is necessary to sustain entitlement to TDIU. No single disability provides sufficient impairment to render him unable to secure or follow a substantially gainful occupation. Therefore, the Board finds that no additional period of SMC under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) is warranted.
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD L. Cramp, Counsel
Copy mailed to: Disabled American Veterans
Department of Veterans Affairs