Citation Nr: 18131265
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-42 084
DATE:	August 31, 2018
ORDER
Entitlement to rating in excess of 20 percent for service connected cervical spine disorder, to include strain with mild osteoarthritis is denied.
Entitlement to a rating in excess of 10 percent for a service connected low back disorder is denied.
Entitlement to a rating in excess of 70 percent for a service connected psychiatric disorder, including posttraumatic stress disorder (PTSD) with anxiety is denied.
FINDINGS OF FACT
1. The Veteran’s cervical spine disability has been characterized by pain, forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine, has not been shown.
2. The Veteran’s spine disability has been characterized by forward flexion greater than 60 degrees but not greater than 85 degrees; forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees has not been shown.  
3. The Veteran’s psychiatric disorder is manifested by anxiety, panic attacks, sleep disturbance, and difficulty interactive with others.  A total social and occupational impairment has not been shown.
CONCLUSIONS OF LAW
1. The criteria for entitlement to rating in excess of 20 percent for service connected cervical spine disorder, to include strain with mild osteoarthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237.
2. The criteria for entitlement to a rating in excess of 10 percent for a service connected low back disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237.
3. The criteria for entitlement to a rating in excess of 70 percent for a service connected psychiatric disorder, including posttraumatic stress disorder (PTSD) with anxiety have not been met.  38 U.S.C. §§ 1154(a), 1155, 5107(b) 1155; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9434.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served from May 2004 to June 2004 and from May 2007 to March 2008 and from May 2009 to April 2013.  
Increased Rating
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.
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).
1. Entitlement to rating in excess of 20 percent for service connected cervical spine disorder, to include strain with mild osteoarthritis 
The Veteran asserts that he entitled to a higher disability rating for his service connected cervical spine disorder. 
The Veteran currently receives a 20 percent rating for his cervical spine disorder under 38 C.F.R. § 4.71a, DC 5237.  In order to warrant a rating in excess of 20 percent, the evidence must show:
•	Forward flexion of the cervical spine 15 degrees or less; or
•	Favorable ankyloses of the entire cervical spine.
See 38 C.F.R. § 4.71a, DC 5237 (30 percent).

After a review of the evidence, the Board determines that a rating in excess of 20 percent is not warranted.  Specifically, during his December 2014 VA examination the Veteran reported daily aching pain in the “ball in left side of his neck,” which is aggravated by neck extension.  However, the Veteran reported no flare-ups or functional loss or impairment.  Upon examination, the examiner found that the Veteran’s initial range of motion was normal.  The examiner found no functional loss after repetitive use, no guarding or muscles spasms, normal muscle strength, reflexes, and senses.  Additionally, the Veteran’s MRI results of his cervical spine were unremarkable.  Therefore, based on this testing the Veteran would not qualify for a rating in excess of 20 percent.  
When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  In this case, while the Veteran complains of pain in his cervical spine, it appears that his pain has not resulted in an abnormal range of motion or functional limitation.  In fact, his December 2014 VA examination showed a normal range of motion and no reports of flare-ups.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance).  Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the rating he currently receives.  Therefore, in conclusion, a rating in excess of 20 percent is not warranted.
2. Entitlement to a rating in excess of 10 percent for a service connected low back disorder
The Veteran asserts that he is entitled to a higher disability rating for his service connected low back disorder. 
The Veteran received a 10 percent rating for his lumbar degenerative disc disease under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (addressing lumbosacral and cervical strain).  This diagnostic code applies a general rating formula that is applicable for most spine disabilities.  Under these bases, a 20 percent evaluation is warranted when the evidence shows:
•	Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or,
•	The combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 
•	Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent evaluation is warranted when the evidence shows:
•	Forward flexion of the thoracolumbar spine to 30 degrees or less; 
•	Favorable ankylosis of the entire thoracolumbar spine; or 
•	Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 
38 C.F.R. § 4.71a, DC 5237.

The term “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 thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Note 2. 
The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his low back disorder.  Specifically, the Veteran underwent a VA examination in December 2014 and reported that he suffered from daily constant “pressure on his spine, like his bones are rubbing.”  
Upon examination, the Veteran exhibited an abnormal range of motion, but his pain did not result in or cause functional loss.  The examiner observed no guarding, muscle spasms, or ankylosis.  Additionally, the Veteran’s forward flexion and combined range of motion reflected measurements that were in excess of what is necessary for a 20 percent rating.  Range of motion testing reflected 75 degrees of forward flexion and a total range of motion of 225 degrees.  The examiner noted no additional loss of function upon repetitive use testing.  Finally, the examiner noted that the Veteran did not experience incapacitating episodes.  Therefore, the evidence demonstrates that the Veteran did not meet any of the criteria necessary for a 20 percent rating. 
Finally, there is no indication that the Veteran has been prescribed periods of bed rest at any point during the appeal.  Specifically, the December 2014 VA examiner noted that the Veteran experienced no radiculopathy symptoms and did not have intervertebral disc syndrome (IVDS).  Additionally, the Veteran reported that he did not experience flare-ups.  As such, an increased rating based on incapacitating episodes is not for application.  
When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  In this case, while the Veteran complains of daily back pain that is aggravated by cold weather, lifting, and prolonged walking, the additional functional loss caused by the pain is taken into account for his range of motion measurements.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance).
The Board has also considered the Veteran’s statements that his spine disability is worse than the ratings he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.  While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his spine according to the appropriate diagnostic codes.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).  
On the other hand, such competent evidence concerning the nature and extent of the Veteran’s spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.
After taking into account the Veteran’s subjective complaints as well as his VA examinations, the Board concludes that an increased rating is not warranted.
3. Entitlement to a rating in excess of 70 percent for a service connected psychiatric disorder, including posttraumatic stress disorder (PTSD) with anxiety 
The Veteran asserts that he is entitled to a higher disability rating for his service connected psychiatric disorder. 
The Veteran’s service-connected psychiatric disability has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434, which provides, in part as follows:
A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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. 
The Board finds that a rating in excess of 70 percent for the service connected psychiatric disorder is not warranted.
The Veteran underwent a VA examination in December 2014.  The Veteran reported an increase in symptoms in both intensity and frequency since his last examination in 2009.  He reported ongoing symptoms of anxiety, panic attacks, nightmares, sleep disturbance, anger, irritability, low tolerance for frustration, difficulty with other and crowds, depressed mood, hypervigilance, and problems with memory and concentration.  The examiner noted that the Veteran experienced occupational and social impairment with reduced reliability and productivity.  The examiner noted that the Veteran continues with psychiatric treatment through the VA healthcare system.  Upon examination, the Veteran was alert and fully oriented, cooperative, and anxious.  No evidence of hallucinations, delusional ideations, or homicidal and suicidal thoughts were shown.  
During an October 2015 visit to the Valley Coastal Bend VA, the Veteran adamantly denied current or recent suicidal ideation, but acknowledged feeling overwhelmed.  The Veteran’s therapist noted that his engagement in treatment has been sporadic but he indicated willingness to engage in couple’s therapy and follow-up for medication management to address better symptom control.  The Veteran has not shown the total impairment needed for a 100 percent disability rating.  Specifically, he has not shown persistent hallucinations, grossly inappropriate behavior or memory loss to such a severe level that he could not remember the names of others.  
Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002).  As such, the Board has also considered the extent to which there is total social or occupational impairment.  
Here, the Board finds that such total occupational or social impairment has not been shown.  Specifically, at his December 2014 VA examination, he stated that he maintains contact with his 8-year-old son and has an “okay” relationship with him.  Although, he reports that he currently lives alone and spends most of his time alone, he has been in his current relationship for 18-months.  He further stated that he enjoys fishing, hunting, and surfing.  During a May 2015 examination, the Veteran reported that he is active once again, has been motivated, and has reengaged in life.  He reported taking his young son fishing on the weekends.  As such, there is no indication of the total impairment required for a 100 percent rating.  
The Board has also considered the statements that his disability is worse than evaluated.  Specifically, he stated during an October 2015 examination that he has increased irritability, verbal altercations with his wife, anxiety, difficulty sleeping, and nightmares.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).
In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses.  Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability for his acquired psychiatric disability, according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009).  Such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated.
 
Thus, taking into consideration the evidence of record, the Board finds that a higher disability rating of 70 percent for the Veteran’s service connected psychiatric disorder is not warranted.  
 
B.T. KNOPE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Vample, Associate Counsel 

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