Citation Nr: 1325222	
Decision Date: 08/08/13    Archive Date: 08/13/13

DOCKET NO.  07-01 697	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an increased disability rating for service-connected lumbosacral strain, currently evaluated as 20 percent disabling.

2.  Entitlement to an increased disability rating for service-connected major depressive disorder (MDD), currently evaluated as 50 percent disabling.

3.  Entitlement to service connection for radiculopathy of the right lower extremity, claimed as secondary to service-connected lumbosacral strain.

4.  Entitlement to service connection for bilateral radiculopathy of the upper extremities, claimed as secondary to service-connected lumbosacral strain.

5.  Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities



REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran and Ms. R.L.


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from October 1986 to October 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefits sought on appeal.

In March 2012, the Veteran testified at a formal RO hearing before a decision review officer.  In August 2012, she presented sworn testimony during a personal hearing in Houston, Texas, which was chaired by the undersigned Veterans Law Judge.  Transcripts of both hearings have been associated with the Veteran's VA claims file.

In an October 2012 Board decision, the claims were remanded for further evidentiary development.  As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The VA Appeals Management Center (AMC) continued the previous denials in a May 2013 supplemental statement of the case (SSOC).  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.

The Veteran's original claim encompassed entitlement to service connection for radiculopathy of the left lower extremity.  This issue was remanded by the Board in October 2012.  In a May 2013 rating decision, service connection was granted for radiculopathy of the left lower extremity and a 10 percent disability rating was assigned.  To the Board's knowledge, the Veteran has not disagreed with that decision.  That matter has accordingly been resolved.  See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).

At the August 2012 Board hearing, the Veteran testified that she is unemployed because of her service-connected psychiatric disorder, which is currently on appeal before the Board.  The Board finds that this statement raises a TDIU claim.  When a claim of TDIU is raised in connection with an increased rating claim for that service-connected disability, the Board has jurisdiction over the issue of TDIU because it is part of the claim for increased compensation.  Thus, the TDIU claim is included in the Veteran's appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).

The issues of entitlement to service connection for bilateral radiculopathy of the upper extremities and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC.  The Veteran will be notified if further action on her part is required.



FINDINGS OF FACT

1.  The Veteran's service-connected lumbosacral strain is manifested by a disability equating to no worse than a limitation of flexion to 40 degrees.  There is no showing of intervertebral disc syndrome including incapacitating episodes with bedrest prescribed by a physician, neurological manifestations, ankylosis, or fracture.

2.  The Veteran's service-connected MDD is manifested by suicidal ideation, impaired impulse control with periods of unprovoked irritability with periods of violence; depression and panic attacks; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships.  Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name have not been shown.

3.  The competent medical evidence of record does not demonstrate that the Veteran is diagnosed with radiculopathy of the right lower extremity.


CONCLUSIONS OF LAW

1.  The criteria for an increased disability rating in excess of 20 percent for service-connected lumbosacral strain have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & West. Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012).

2.  The criteria for the assignment of a disability rating of 70 percent, but no higher, for the Veteran's MDD have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.13, 4.130, DC 9434 (2012).

3.  Entitlement to service connection for radiculopathy of the right lower extremity, claimed as secondary to the Veteran's service-connected lumbosacral strain is not warranted.  38 C.F.R. § 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide.

Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim.  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.

With regard to the increased disability rating claims, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

As to the current appeal, letters dated in April 2006, July 2007, and May 2011 complied with VA's duty to notify the Veteran with regard to the increased ratings and service connection claims.   In particular, the letters informed the Veteran of the need for evidence of a worsening of her service-connected disabilities.  The letters also informed the Veteran of the evidence necessary to sustain a claim of entitlement to service connection to include on a secondary basis.  Further, the Veteran was notified of the types of evidence that could substantiate her claims, such as medical records or lay statements regarding personal observations.  She was asked to provide information as to where she had been treated and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary.  In addition, the letters informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  She was also specifically provided with notice of how disability ratings and effective dates are determined in the April 2006, July 2007, and May 2011 letters.

With respect to VA's duty to assist, the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, and VA and private treatment records have been obtained and associated with the claims file.  The Veteran was also afforded pertinent VA examinations in May 2004, May 2005, May 2006, June 2006, June 2008, August 2010, May 2011, September 2011, April 2012, May 2012, and April 2013.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examinations obtained here are sufficient, as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4) (2012).

II.  Increased Rating Claims

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In general, when 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).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the Veteran has been assigned a 20 percent disability rating for a service-connected lumbosacral strain throughout the appeal period.  In addition, as will be explained below, the Board finds that the Veteran's MDD symptomatology warrants the assignment of a 70 percent disability rating throughout the appeal period.  Accordingly, the Board finds that staged ratings are not warranted for the appeal period as to either claim.

a. Lumbosacral strain

Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

Historically, the Veteran was service-connected for lumbosacral strain in a March 1996 rating decision; a 10 percent evaluation was assigned.  The disability rating was increased to 20 percent in an August 1998 rating decision.  The Veteran now contends that her service-connected lumbosacral strain has become more disabling than is indicated by the assigned rating.  She therefore contends that a higher rating is warranted.

The Veteran's thoracolumbar spine disability is currently rated under 38 C.F.R. §§ 4.71a, DC 5237 [lumbosacral strain].  Notably, the evidence of record shows that in addition to a chronic lumbosacral strain, the Veteran is currently diagnosed with degenerative disc disease of her lumbar spine.  See, e.g., the VA examination reports dated May 2006.  Thus, the Board has considered whether the Veteran is entitled to an increased disability rating under DC 5243 [intervertebral disc syndrome].

The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243.  The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined.  38 C.F.R. § 4.71a.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a.  An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."  38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1.

A review of the competent evidence of record demonstrates that the Veteran has not reported experiencing incapacitating episodes throughout the appeal period.  See the VA examination reports dated May 2004, May 2005, May 2006, June 2006, June 2008, September 2011, April 2012, and April 2013.  Although she stated that a doctor did prescribe bed rest to treat her back pain, there is no evidence of this in the claims file.  See, the VA examination report dated June 2006.  Moreover, a review of the voluminous evidence of record reveals there is no medical evidence to indicate that the Veteran suffered an incapacitating episodes as a result of her service-connected lumbosacral strain for which a physician prescribed bed rest during the appeal period.  Accordingly, rating the Veteran under the formula for rating intervertebral disc syndrome based on incapacitating episodes would not avail her of a rating greater than the currently-assigned 20 percent evaluation for her service-connected disability.  Rather, the Veteran has reported a progressive worsening of thoracolumbar symptoms and has described functional impairment.

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply.  A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for 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 is not greater than 120 degrees; or, muscle spasms 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 rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

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

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

Note (3) provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4) requires that each range of motion measurement be rounded to the nearest five degrees.

Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following:  difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

In this case, DC 5237 [and thus the general rating formula for diseases and injuries of the spine] is appropriate in that the medical evidence of record indicates that the Veteran's service-connected lumbosacral strain is primarily manifested by pain and loss of motion, which is congruent with the criteria set out in the general rating formula for diseases and injuries of the spine.

As indicated above, the Veteran's lumbosacral strain is rated as 20 percent disabling.  To obtain a higher disability rating of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran would have to demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine.  See 38 C.F.R. §§ 4.71a, DC 5237 (2012).  Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)).

Here, the Veteran was afforded a VA examination in May 2004.  She provided a detailed history of her lumbosacral spine disability.  The Veteran indicated that she received ongoing treatment for her back with physical therapy, use of a transcutaneous electrical nerve stimulation (TENS) unit, and ibuprofen.  She indicated that the pain radiates to her buttocks, but not to the lower extremities.  With respect to her back condition and its effect on her daily activities and her occupation, the Veteran reported now constant midline lumbar to lumbosacral pain which she rated at 6/10.  She stated that this pain increases with any standing, bending, or sitting in excess of 20 minutes; twisting, turning, or lifting more than 40 pounds; ascending stairs; and with pressure to her lower back region.  She denied any bowel or bladder changes associated specifically with her back with the exception of urinary frequency.  The examiner noted that the Veteran had no injections, surgery, or hospitalizations for her back problems.  She also did not endorse the use of a cane or crutches.  She reported losing 3 days of work for medical appointments.  Physical examination revealed that the Veteran was "tender in the midline to the transverse lumbar region and nontender to deep palpation in the sciatic notches."  No paravertebral muscle spasm was noted.  Range of motion testing revealed forward flexion to 80 degrees; extension to 15 degrees; lateral flexion to 20 degrees to the left and 15 degrees to the right; and lateral rotation to 25 degrees to the left and 20 degrees to the right.  The Veteran reported lumbosacral discomfort at all extremes of motion.  The examiner further noted, "I found no objective clinical evidence that function is additionally limited by pain, fatigue, weakness, incoordination or lack of endurance EXCEPT as noted on the examination above.  The nature and extent of any additional limits on functional ability is as noted in the history provided by the Veteran."  The examiner diagnosed the Veteran with "[r]ecurrent to chronic lumbosacral strain, currently without spasm and without objective evidence of lower extremity radiculopathy."

The Veteran was afforded a second VA examination in May 2005 at which time she complained of constant pain which travels down her buttocks to her legs.  She rated the pain as a 10/10, which can be elicited by physical activities and relieved by rest and medication.  The Veteran endorsed using a cane for ambulation.  The examiner noted that the Veteran reported six weeks time lost from work per year.  The examiner described the Veteran's posture as abnormal; in particular, "it is bent slightly forward."  Her gait was also described as abnormal; specifically, "it is favoring her low back, slightly hunched over."  The examiner noted no complaints of radiating pain on movement and no evidence of muscle spasm.  He further reported "[t]here is tenderness noted on exam, tender to palpation over lumbar spine region."  Range of motion testing demonstrated forward flexion to 80 degrees with pain at 70 degrees; extension to 30 degrees with pain at 20 degrees; right and left lateral flexion to 30 degrees with pain at 20 degrees; and right and left rotation to 30 degrees with pain at 20 degrees.  The examiner further indicated that "[t]he joint function of the spine is additionally limited by the following after repetitive use:  pain, fatigue, weakness, lack of endurance; and pain has the major functional impact."  The examiner stated that there was no incoordination.  Neurologically, motor function and sensory function were within normal limits.  The examiner noted that right and lower extremity reflexes reveal knee jerk 2+ and ankle jerk absent.  The examiner additionally noted that "[t]his claimant has pain far in excess to any clinical or normal x-ray findings.  She instructed me to stop straight leg raise at only 35 degrees bilaterally secondary to complaints of excruciating low back pain."

A June 2004 VA treatment record documented the Veteran's report of radiating back pain with tingling and numbness as well as urine control problems.  A December 2005 VA neurology treatment record noted that the Veteran has occasional low back pain which radiates down her left leg.  She denied weakness, bowel or bladder changes, or gait difficulty.  A March 2006 VA treatment record noted x-ray and magnetic resonance imaging (MRI) findings as to the lumbosacral spine, which showed "mild degenerative joint disease (DJD), no cord impingement or foraminal stenosis."  This record also indicated that the Veteran complained of low back pain with radiation down the left leg as well as occasional stress incontinence.

In a February 2006 letter to her employer, the Veteran requested reassignment to a position "where prolonged periods of standing and bending are not required" due to her back symptomatology.

In an undated third party letter, Mr. F.B. reported that he had witnessed the Veteran's discomfort performing her job "due to the position that she has to get in order to accomplish her job."

The Veteran was afforded a third VA examination in May 2006, at which time she reported constant pain and weakness of the affected parts from her back to her knees.  She indicated that her pain rated as 8/10 and was elicited by physical activity and stress and relieved by rest and medication.  The Veteran reported that at the time of pain, she can function with medication.  She stated "30 times lost from work per month."  The examiner described the Veteran's gait as within normal limits and noted that she used a cane for ambulation.  Physical examination revealed no evidence of radiating pain on movement or muscle spasm.  Paraspinal tenderness was noted on palpation.  Straight leg raises were negative, bilaterally.  Range of motion testing revealed forward flexion to 40 degrees with pain; extension to zero degrees with pain; right and left lateral flexion to 10 degrees bilaterally with pain; and right and left rotation to 10 degrees bilaterally with pain.  The examiner noted that the Veteran's movement was "limited by the following after repetitive use:  pain; and pain has the major functional impact.  It is not additionally limited by the following after repetitive use:  fatigue, weakness, lack of endurance, or incoordination."  The examiner noted that the Veteran exhibited 'significant guarding' upon examination.  No signs of intervertebral disc syndrome were shown and neurological examination was normal on the right lower extremity, but abnormal on the left.  The examiner diagnosed the Veteran with DDD of the lumbosacral spine with peripheral neuropathy of the left lower extremity, not otherwise specified (NOS).

The Veteran was afforded another VA examination in June 2006 which documented his complaints of radiculopathy of the lower extremities in addition to chronic lumbosacral pain.  She endorsed pain occurring 10 times per day and each time lasting for one hour.  She noted that the pain is burning, aching, oppressing, and sharp in nature.  She rated the pain as 10/10.  She stated that although the pain comes by itself, it can be elicited by physical activity and stress.  It is relieved by rest and at the time of pain, she requires bed rest.  She noted that the pain does not cause incapacitation.  With respect to functional impairment, the Veteran stated that she can only sit 30 to 45 minutes, lift only 10 pounds, stand only 45 minutes, and walk only 1 hour.  Upon physical examination, the examiner noted the Veteran's posture as within normal limits.  She exhibited an antalgic gait and walked with a cane for ambulation to support her left knee, which goes out.  Range of motion findings revealed forward flexion to 45 degrees with pain; extension to 20 degrees with pain; right lateral flexion to 10 degrees with pain; left lateral flexion to 15 degrees with pain; right rotation to 30 degrees with pain; and left rotation to 20 degrees with pain.  The examiner noted that "[t]he joint function of the spine is additionally limited by the following after repetitive use:  pain, fatigue, weakness, lack of endurance, [and] incoordination; and pain has the major functional impact."  The examiner noted that the above factors did not additionally limit the Veteran's range of motion.  Neurological examination revealed abnormal sensory findings in the left lower extremity.
In a December 2006 letter, Dr. W.L.H. documented the Veteran's complaints of back pain radiating to the legs and upper extremities.  He diagnosed the Veteran with lumbar radiculopathy and possible cervical radiculopathy.  However, in a January 2007 follow-up letter, Dr. W.L.H. noted that EMG and nerve conduction velocity studies of the upper and lower extremities revealed no evidence of distal nerve entrapment or cervical or lumbar radiculopathy.  He further noted that MRI findings were unremarkable.

In a December 2006 letter to the Veteran's supervisor, Dr. R.A.C. noted four job limitations of the Veteran including that she is unable to lift more than 5 pounds; she cannot push patients in wheelchairs or stretchers; she is unable to strip or clean beds; and she is unable to perform any duties which require frequent bending or stretching.  Dr. R.A.C. reiterated the Veteran's occupational difficulties, caused by her disabilities including back pain, in an August 2010 letter.

In June 2008, the Veteran was afforded a fifth VA examination during the appeal period.  She complained of stiffness, weakness, fevers, as well as, bladder and bowel complaints.  She rated her radiating back pain as 8/10.  She indicated that she does not experience incapacitation as a result of her lumbosacral spine symptomatology.  The examiner reported the Veteran's abnormal posture and gait, as well as, her cane for ambulation.  He further noted no radiating pain on movement and no muscle spasm.  The examiner indicated that the Veteran's spine was tender to palpation over the entire lumbar spine region.  Straight leg raises were negative and no ankylosis was shown.  Range of motion findings revealed forward flexion to 80 degrees with pain at 65 degrees; extension to 25 degrees with pain at 20 degrees; lateral flexion to 25 degrees bilaterally with pain at 20 degrees; right rotation to 30 degrees with pain at 20 degrees; and left rotation to 30 degrees with pain at 25 degrees.  The examiner further reported that upon repetitive use, her motion was additionally limited by pain, fatigue, weakness, and lack of endurance; with pain having the major functional impact.  Incoordination was not shown.  The examiner also reported that there was no evidence of intervertebral disc syndrome with chronic and permanent nerve root involvement.  The examiner noted that the Veteran's "apparent pain and disability are out of proportion to any exam findings."  The examiner additionally stated that "[t]he effect of the condition on the claimant's daily activity is very difficulty to ambulate, must use cane, climbing stairs is very difficult; bending is very painful; difficult to hop or do household chores."

The Veteran was afforded a VA (QTC) examination in August 2010; the examiner stated that the Veteran has limitations in walking because of her spine condition and weakness in the legs.  He stated that the Veteran endorsed symptoms of stiffness, fatigue, spasms, decreased motion, paresthesias, and numbness.  The Veteran also reported moderate fecal leakage that occurs 1/3 to 2/3 of the day.  She endorsed urinary incontinence and urinary frequency three times per three hours.  The examiner indicated that the Veteran's back pain was exacerbated by physical activity and stress, and relieved by rest and medication.  He noted, "[d]uring the flare-ups she experiences functional impairment which is described as 'I have difficulty walking and lifting due to pain and weakness' and limitation of motion of the joint, which is described as 'I have difficulty bending.'"  The Veteran reported no hospitalizations, surgery, or periods of incapacitation as a result of her back disability.  The examiner found no evidence of muscle spasms or radiating pain on movement.  Physical examination showed tenderness on palpation over the entire lumbar spine region.  No guarding of movement or weakness were shown upon physical examination.  Muscle tone was normal and there was no atrophy.  Ankylosis was not exhibited.  Range of motion findings revealed forward flexion to 90 degrees with pain at 80 degrees; extension to 30 degrees with pain at 20 degrees; right lateral flexion to 25 degrees with pain at 15 degrees; left lateral flexion to 30 degrees without pain; right rotation to 30 degrees without pain; and left rotation to 30 degrees without pain.  The examiner reported that the joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive movement.  The examiner determined that there was no pathology to render a diagnosis of lumbar radiculopathy.  With respect to the functional impact, the examiner concluded, "[t]he effect of the condition on the claimant's usual occupation is pain, difficulty walking, lifting, bending.  The effect of the condition on the claimant's daily activity is pain, can't exercise, difficulty walking, lifting, bending."

In September 2011, the Veteran was afforded another VA examination at which time range of motion testing revealed forward flexion to 80 degrees; extension to 20 degrees; lateral flexion to 20 degrees bilaterally; and rotation to 25 degrees bilaterally.  The examiner noted that "[t]he joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use."  He further noted that the functional impairment caused by the Veteran's back disability "and the effect of that impairment on the claimant's ability to perform physical and sedentary activities of employment are his back pains and hand pain..."

The Veteran was again afforded a VA examination in April 2012 at which time range of motion findings showed forward flexion to 70 degrees; extension to 30 degrees or greater; lateral flexion to 30 degrees, bilaterally; and rotation to zero degrees, bilaterally.  The examiner indicated that there was no objective evidence of pain on movement.  The examiner further noted that "[s]he has no muscle spasm.  Her pain syndrome doesn't fit with any type of back problems.  She would not do adequate range of motion and there are no symptoms or physical finding that would prevent full range of motion.  The pain radiation to her abdomen and legs doesn't indicate back problems.  She has minimal degeneration that would not by symptomatic.  She would not do leg strength exercises, which should be normal."  The examiner stated that the Veteran had no functional loss and/or impairment as a result of her service-connected lumbosacral strain.  In a June 2012 addendum, the VA examiner noted that no additional limitation of movement was shown upon repetitive motion testing.

Most recently, the Veteran was afforded a VA examination in April 2013 pursuant to the Board Remand.  The examiner documented the Veteran's complaints of back pain in any position for more than 30 minutes as well as radiating pain to both legs.  The Veteran reported having two epidural steroid injections last year with no benefit.  She uses a cane for ambulation due to her knee.  She can only do minimal walking.  The Veteran told the examiner that she did not experience flare-ups of back pain.  Range of motion testing demonstrated forward flexion to 50 degrees; extension to 15 degrees; lateral flexion to 15 degrees, bilaterally; and lateral rotation to 15 degrees, bilaterally.  There was no objective evidence of pain upon movement.  The examiner noted that the Veteran was able to perform repetitive motion testing with no impairment in her range of motion.  The examiner documented the following functional limitation caused by the Veteran's lumbosacral strain:  less movement than normal.  The Veteran did not exhibit guarding or muscle spasms, although localized tenderness to palpation was demonstrated.  The examiner concluded that the Veteran's lumbosacral strain does not impact her ability to work.  He additionally diagnosed the Veteran with left L5 radiculopathy.

Based on the multiple VA examination reports and the Veteran's medical treatment records, the Board finds that the 20 percent rating assigned to the service-connected lumbosacral strain is appropriate.  The Veteran's service-connected lumbosacral strain was manifested by disability equating to no worse than a limitation on the range of motion of flexion to 40 degrees as documented in the May 2006 VA examiner.  Accordingly, there is no evidence of forward flexion to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine.  As such, based on these objective findings, the Veteran's lumbosacral strain does not meet the criteria for a 40 percent disability rating.

As previously noted, the Veteran's lumbosacral strain is not presently shown to meet the criteria for rating intervertebral disc syndrome.  The Board recognizes that the Veteran has complained of significant lumbar spine symptomatology including the radiation of pain to the buttocks and lower extremities during the appeal period.  Notably, the Veteran has been service connected for radiculopathy of the left lower extremity.  See the rating decision dated May 2013.  Also, as will be separately discussed below, the medical evidence demonstrates that examiners have been unable to confirm a diagnosis of radiculopathy of the right lower extremities.  See the VA examination reports dated April 2012 and April 2013.  In addition, the Board recognizes that the Veteran has reported bowel and bladder impairment (see the VA (QTC) examination report dated August 2010); however, there have been no findings that have related these neurological symptoms to the service-connected lumbosacral strain.

Thus, the objective findings and subjective complaints do not meet the criteria for a disability rating in excess of 20 percent under the General Rating Formula, or any other potentially pertinent criteria.

The regulations explicitly take pain upon motion into account, and the Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, and 4.45 would warrant a higher rating.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).  Here, as indicated above, despite the Veteran's description of constant and severe back pain, she was able to achieve at least 40 degrees of forward flexion.  See the VA examination reports dated May 2004, May 2005, May 2006, June 2006, June 2008, August 2010, September 2011, April 2012, and April 2013.  Thus, even taking into consideration the Veteran's complaints of constant pain, the Board finds that the effect of that pain of her range of motion is properly contemplated by the 20 percent schedular rating assigned by the RO under DC 5237.  The Board finds that nothing in the record suggests that pain, weakness, or functional loss-even during periods of flare-up caused more than moderate limitation of motion for throughout the appeal period even taking into consideration the requirements of 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See DeLuca, 8 Vet. App. at 204-06.  The Board thus concludes that an evaluation in excess of the currently assigned 20 percent disability rating is not warranted.

In sum, a 40 percent rating is not warranted under the current General Rating Formula for Diseases and Injuries of the Spine because the Veteran does not experience a limitation of her range of motion of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; making a rating of 40 percent inapplicable under the General Rating Formula for Diseases and Injuries of the Spine.  As discussed above, the multiple VA examiners explicitly considered the Veteran's report of constant, severe pain in rendering their findings.  Similarly, ratings of 50 percent or 100 percent are not warranted based upon lack of more significantly restricted range of motion and because the Veteran did not experience ankylosis of her spine at any time during the identified period.  Therefore, the Board finds that an increased rating is not warranted for the Veteran's service-connected lumbosacral strain.  See 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, DC 5237 (2012).

The Board has considered the assertions by the Veteran that she is entitled to a higher rating for her lumbosacral strain.  The Veteran is competent and credible to attest to the exhibited symptoms in her lumbosacral spine.  However, the objective evidence of record is more probative and persuasive than the Veteran's descriptions of her symptoms.  The objective findings do not support a higher rating based on the schedular criteria.  The Veteran's symptoms do not more nearly approximate the criteria for the assignment of a higher rating in any regard.

Based on the above, the Board has determined that a schedular rating in excess of 20 percent is not warranted for the service-connected lumbosacral strain.

b. Major Depressive Disorder

The Veteran's service-connected MDD is evaluated pursuant to 38 C.F.R. § 4.130, DC 9434.  Under this formula, a 10 percent is granted when 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 evaluation is assigned when 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, and mild memory loss (such as forgetting names, directions, recent events).

A 50 percent evaluation is for assignment when there is 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 establishing effective work and social relationships.

A 70 percent evaluation is contemplated 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); inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name.

The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the 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 his/her social and work situation.  Id.

In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013)., the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." 

The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV).  As will be discussed below, the Veteran has been assigned GAF scores ranging from 40 to 60 as determined by VA examiners and treatment providers dating from 2004 to 2013.  These scores are indicative of moderate to serious impairment.  According to the DSM-IV, which VA has adopted pursuant to 38 C.F.R. §§ 4.125 and 4.130, a GAF score ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing in school); 41 to 50 is reflective of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job); and GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).


In this case, the Veteran seeks a disability rating in excess of the currently assigned 50 percent for her service-connected MDD.  After having reviewed the record, and for reasons explained in greater detail below, the Board concludes that a disability rating of 70 percent, but no higher, is warranted for the appeal period.

Here, VA treatment records dated April 2005 documented the Veteran's complaints of fatigue due to decreased sleep.  She also reported experiencing a depressed mood "at times."  A June 2005 VA psychological treatment record noted the Veteran's assertion of feeling like she "wanted to disappear, just pack up and leave, and just get away."  She indicated that she has a depressed mood and "reports lack of energy level and decreased appetite."  She also reported having difficulty focusing with decreased attention and concentration.  She stated that her husband complained of her attention span being too short.  She endorsed irritability, but denied thoughts of self-harm or harm directed towards others.  The Veteran appeared well-groomed and was well-oriented.  Her speech was clear and coherent, although her affect was constricted.  Her thought process was organized and goal directed.  She denied auditory or visual hallucinations.  The treatment provider noted that the Veteran's attention and concentration were good and that her memory is satisfactory.

The Veteran was afforded a VA examination in May 2005 at which time she reported that she isolates herself and has 'low patience.'  The examiner noted that the Veteran received counseling and medication to manage her psychological symptoms.  The Veteran reported that she "gets angry, becomes forgetful, goes blank and that these [symptoms] have worsened since March 2005.  She reported that she cannot fall asleep at night, but she does fall asleep at her job.  She stated, "I do have problems at work; being confused in a drugged state of mind."  She has not been hospitalized for her MDD symptomatology.  The Veteran indicated that she worked as a dental technician for 17 years.  She alternately stated that her relationships with her supervisors and coworkers were both "fair" and "poor."  She reported that she experienced mental stress and depression at work.  She endorsed no major changes in daily activities or social functioning.  The examiner noted that the Veteran's appearance, hygiene, and behavior were appropriate.  Her "[a]ffect and mood are abnormal with findings of depressed mood, depressed affect, [and] low motivation."  Communication was within normal limits.  The examiner noted that "[t]here is abnormal speech which occurs constantly.  It is a soft, little intonation."  The Veteran endorsed panic attacks which occur as often as 20 times per month; each episode lasting for 20 minutes.  She stated that she sometimes does not want to get out of bed.  The examiner noted no hallucinations, delusions, or obsessional rituals.  The examiner further indicated that the Veteran's thought processes "are not appropriate with some paranoid thoughts about being watched or videotaped."  The examiner found the Veteran's memory to be impaired to a moderate degree in that the Veteran exhibited problem with retention of highly learned material and forgetting to complete tasks.  No suicidal or homicidal ideation was noted.  The examiner opined that "[m]entally, she intermittently is unable to perform activities of daily living (but she can provide self-care) because the severity of her panic attacks and the absence of motivation, energy, and feelings of hopelessness."  The examiner also noted that the Veteran has difficulty establishing and maintaining effective work and social relationships.  A GAF of 48 was assigned.

VA treatment records dated October 2005 documented the Veteran's complaint that she feels tired during the day and will often take a nap at lunchtime.  She reported that she is able to fall back asleep easily at night.  She also endorsed trouble with her memory in that she will forget the reason she goes to a filing cabinet at work.  Suicidal ideation was not reported.  The Veteran's affect was constricted and she endorsed some worsening of depressive symptoms.  A January 2006 VA treatment record noted that the Veteran isolates herself and avoids crowds.  A March 2006 VA treatment note recorded the Veteran's assertion that she is feeling stress related to her job and "feels like she cannot keep up with the constant flow of patients.  She states that despite the stress, she is maintaining a good mood."  A GAF of 61 was assigned.  In August 2006, the Veteran reported experiencing 'horrible' concentration, decreased energy, and impatience.  She indicated that she just wanted to be alone.  The GAF of 61 was continued.  See the VA treatment record dated August 2006.

The Veteran was afforded another VA psychological examination in June 2006 at which time she endorsed difficulty maintaining focus at work.  She reported difficulty sleeping including frequent wakings with trouble getting back to sleep.  The examiner noted that the Veteran's current symptoms included depressed mood, irritability, social withdrawal, and difficulty getting along with people including her husband.  She reported having a psychiatric hospitalization in the past, but the last time was "unknown."  She no longer attends counseling.  She asserted that her job was in jeopardy because of low performance.  The Veteran described her relationship with her supervisors as 'fair' and with her coworkers as 'poor.'  She stated that she is withdrawn from her friends and family.  She stated that her husband travels a lot for work and they do not have much contact with each other.  She attends church on a regular basis.  The examiner characterized the Veteran was a vague and poor historian.  He noted her depressed mood, which is near continuous "but does not affect her ability to function independently but does cause her unprovoked irritability."  The Veteran's communication and concentration were fair; although, the examiner noted the Veteran "has difficulty focusing and organizing her thoughts."  The Veteran endorsed panic attacks, but did not describe frequency or duration.  She did not exhibit suspicious behavior, delusions, evidence of hallucinations, obsessional rituals, impaired judgment, or impaired abstract thinking.  Her thought processes were goal-directed.  The examiner noted mild memory impairment such as forgetting names, directions, and recent events.  The Veteran reported passive thoughts of suicide, but no homicidal ideation.  The examiner concluded that the Veteran "has occasional interference in performing the activities of daily living ... [and] has difficulty establishing and maintaining effective work and social relationships."  He further noted that the Veteran "has no difficulty understanding simple commands but has difficulty understanding complex commands because of poor concentration and irritability."  The Veteran was not a persistent threat to herself or others.  A GAF of 60 was assigned.

In a March 2008 letter, Dr. J.F.H. stated, "I have noticed that [the Veteran] has been more lethargic and lacked motivation to work on her own behalf due to worsening depression."

In an August 2010 letter, Dr. R.A.C. noted that the Veteran's physical and mental disabilities have resulted in worsening job performance and life performance.

In June 2008, the Veteran was again afforded a VA examination to address her service-connected MDD.  The Veteran reported that she has not attending psychotherapy in the past year.  She also has had no psychiatric hospital admissions.  The examiner noted that the Veteran "has poor enjoyment of leisure activities, variable appetite, reduced psychomotor activity, and intermittent suicidal ideation."  The Veteran endorsed sleep disturbance as well as intermittent panic attacks characterized by shortness of breath, heightened anxiety, and claustrophobia.  She reported suffering from day long anxiety.  The Veteran stated she feels paranoid that people are watching and talking about her.  She also hears people knocking on the door when they are not.  The examiner noted that the Veteran exhibits near continuous depressed mood which affects her ability to function independently.  Additionally, the Veteran exhibits symptoms of helplessness and hopelessness.  Her speech is within normal limits; although, her concentration is poorly focused.  The Veteran endorsed panic attacks occurring more than once per week.  The examiner noted no suspiciousness, delusions, hallucinations, or obsessional rituals.  The Veteran's thought processes were appropriate; her judgment and abstract thinking were normal.  The examiner noted that the Veteran's memory was mildly impaired in that she forgets names, directions, and recent events.  Suicidal and homicidal ideation were absent.  With respect to social relationships, the Veteran described her relationship with her husband as poor.  She does not socialize.  The Veteran stated that she has lost the capacity to enjoy life.  The examiner noted the Veteran's low self-esteem and indicated that "[t]his limits her tolerance of groups and pushes her into states of isolation and few friendships."  The examiner noted that the effect of the Veteran's symptoms on her daily functioning is extreme malaise.  The Veteran also endorsed irritability, which has often caused arguments at work and in social interactions.  The Veteran reported that when she was employed her relationships with her supervisor and coworkers were poor.  The examiner stated, "[i]n the past, the [Veteran] has threatened physical violence towards co-workers with thoughts of strangling them."  The examiner opined, "[t]he patient struggled for years to work as her depression and irritability worsened.  This often has caused low productivity, arguments at work, and repeated discussions with her supervisors.  It led to a point in which the patient was unable to do more than answer the phones despite her training in clinical dental services."  The examiner concluded that the Veteran's "depression does appear to impair [her] interpersonal relationships and her difficulty interacting with peers.  It is likely that due to her depression and irritability, she would have moderate to severe difficulty in a job in which she had extensive needs to interact with others."  The examiner continued, "[t]his does not prohibit her to work in an environment where there is less intensive interaction with others.  She potentially could work well in a low stress, organized, and structured environment."  The examiner further opined, "[t]he best description of the claimant's current psychiatric impairment is psychiatric symptoms cause occupational and social impairment with reduced reliability and productivity."  A GAF of 45 was assigned.

In an October 2008 letter, Dr. J.F.H. wrote on the Veteran's behalf in order to support a pending workman's compensation claim.  Dr. J.F.H. noted that between March 2006 and July 2006, the Veteran became increasing depressed with feelings of increased job stress.  Dr. J.F.H. stated that the Veteran suffered "extremely low energy, increased paranoid ideation, and felt threatened by supervisors."  She suffered increasing symptoms of depression including crying spells, sleep disturbance, feelings of helplessness and hopelessness, and even greater difficulty with concentration and memory after the termination.  Dr. J.F.H. concluded that the Veteran's depressive symptoms worsened after a job-site injury in December 2006 and further declined after her employment termination.  She concluded that the Veteran's symptoms greatly interfere with her daily functioning.

In a June 2009 letter to support the Veteran's workman's compensation claim, Dr. G.J.B. stated that the Veteran continues to present with significant anxiety and depression secondary to her work-related injury.  He further noted that there had been no chance since April 2009.  He concluded, "[d]ue to the severity of her work-related psychological concerns, the patient is currently unable to return to work in any capacity at this time."
In a September 2009 Initial Psychiatric Assessment, which was performed as part of the Veteran's workman's compensation claim, she reported nightmares and flashbacks.  She stated that she is often tearful and has frequent crying spells.  Her mood fluctuates greatly.  The Veteran described herself as "in a constant state of feeling overwhelmed, and feels like she is stuck in a bad dream..."  She reported feeling hopeless and worthless.  The evaluating physician noted that the Veteran's energy is low and her sleep is poor; her memory and concentration have been disrupted.  The Veteran stated she feels she cannot mentally keep up.  She endorsed severe anxiety and frequent suicidal thoughts in 2007, which have become rare in 2008.  The evaluating physician described the Veteran as "pleasant and cooperative" and noted that she was alert and fully oriented.  The examiner indicated a "mild tangentiality" in the Veteran's thought process, "but she is coherent and goal-directed."  The evaluating physician noted that the Veteran "continues to experience constant pain and emotional impairment of moderate-to-severe intensity and causes marked loss of functionality."  He stated, "[s]he has a high degree of activity interference, withdrawal, and avoidance due to her physical and emotional injuries."  He opined that the Veteran is "temporarily totally disabled due to the mental abuse that she suffered in the work environment..."  He stated that "[h]er psychological symptoms have become so sever that she has been incapable of returning to work until her depression and anxiety are further addressed in treatment."  A GAF of 40 was assigned.

The Veteran was again afforded a VA examination in May 2011 at which time the examiner noted that the Veteran had been unemployed since 2007 and feels she could not work anymore because of her back and other problems.  The Veteran endorsed psychological symptoms of anxiety, depression, sleep disturbance, irritability, and malaise.  The examiner characterized these symptoms as of 'moderate severity.'  The Veteran stated that she is alone most of the time and does not go out after dark.  She feels continuously depressed.  The examiner noted the Veteran's report of difficulty sleeping.  The Veteran described a history of violent behavior; specifically, verbally lashing out at people including at work.  She did not endorse any suicide attempts.  The examiner noted that the Veteran is married for a third time and feels that her depression has negatively impacted her marriage.  The Veteran is "not close" with her husband and sees her child every weekend, although he lives with his grandmother.  The examiner noted that the Veteran is not able to work well with others.  The examiner noted that the Veteran exhibited "a disturbance of motivation and mood, a flattened affect, mood swings, anxiety, and depressed mood."  He further noted that the Veteran was very low energy throughout the assessment and had difficulty thinking clearly about the questions asked.  The Veteran exhibited difficulty understanding complex commands.  She described her concentration as "not good at all" and stated that she loses track of what she is doing.  She endorsed panic attacks occurring less than once a week.  The examiner noted signs of suspiciousness in that the Veteran sometimes feels that someone is watching her.  An occasional delusional history was also endorsed by the Veteran, including seeing things that are not there.  No delusions were observed upon examination and no hallucinations were reported.  The examiner noted that "obsessive compulsive behavior is present and is severe enough to interfere with routine activities.  The examples are in the middle of the night she can be up cleaning something."  The Veteran reported an impaired thought process as she has slowness of thought and difficulty understanding directions.  The examiner described the interview as in "slow motion."  The Veteran's judgment is impaired; specifically, she claimed that her husband "will make decisions for them because he is afraid she will mess up."  The Veteran's abstract thinking was also described as abnormal because she has difficulty understanding concepts.  Her memory is moderately impaired as she has problems retaining highly learned material and forgetting to complete tasks.  The examiner also stated that the Veteran had suicidal ideation as recent as last week; there was no present homicidal ideation.  The examiner concluded that the Veteran "easily gets into conflicts with others, so she would have difficulty working in a social setting."  He additionally noted that she is not functional enough for her minor son to live with her full-time.  The examiner then opined, "[t]he best description of the claimant's current psychiatric impairment is psychiatric symptoms cause occupational and social impairment with reduced reliability and productivity."  A GAF of 45 was assigned.

In a report of a private psychological evaluation dated in April 2012, Dr. G.J.B. reported that the Veteran was alert and oriented at the time of the evaluation.  The Veteran denied any suicidal or homicidal ideation.  Dr. G.J.B. noted that the Veteran did not exhibit any severe cognitive deficits, although the Veteran stated that her pain, anxiety, and depression have caused significant memory and concentration difficulties.  She has been off anti-depressant medications since 2007.  The Veteran reported symptoms of anxiety and panic attacks, as well as, crying spells, loss of energy, loss of enjoyment, loss of sex drive, reduced interest in daily activities, insomnia, irritability, anger, weight gain, difficulty with concentration and ability to focus, isolation, and withdrawal from others.  Dr. G.J.B. concluded that "[d]ue to the severity of her work-related psychological concerns, the patient is currently unable to return to work in any capacity at this time."  A GAF of 50 was assigned.

The Veteran was afforded another VA examination in May 2012.  The examiner noted that she exhibited "[o]ccupational 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 medication."  The examiner reported that the Veteran lives with her husband and son, although "she spends most of her time at her mother-in-law's house, with whom she has a good relationship."  The Veteran has been married for 8-9 years, but has a poor relationship with her husband who is verbally abusive.  She attends church once a month.  She indicated that she uses sleep to cope with her depressive symptoms.  She manages her own self-care and activities of daily living, but "is slow in carrying out tasks and prefers not to drive more than necessary."  The Veteran reported violent episodes "primarily related to interpersonal problems (e.g., 'not being able to get my point across') at least once per month and stated that 'I have no control of it.'"  The examiner noted that the Veteran's violent behavior typically consists of yelling at others.  The Veteran endorsed suicidal ideation with no attempts of suicide.  She exhibited a depressed mood with anxiety.  She had no specific sleep problems.  She stated that her interest in pleasurable activities is low.  She also indicated that her concentration and energy were low; her mind often wanders and she repeats herself.  The Veteran endorsed anxiety attacks.  However, the examiner noted that there was no evidence of avoidance behaviors or worry associated with these anxiety symptoms.  The Veteran endorsed episodes of anger associated with inadequate VA medical treatment.  The examiner noted that the Veteran did not initially endorse symptoms of obsessive compulsive disorder, but when asked more specifically, she endorsed showering and brushing her teeth three to four times per day.  However, the examiner determined that there was no evidence of compulsive behaviors affecting routine behaviors.  The examiner noted an absence of visual hallucinations; although, the Veteran reported occasionally hearing her name.  The examiner stated, "[t]hese phenomena do not appear to contribute to disturb [the] Veteran or contribute to significant impairment."  The Veteran's mood was frustrated and her affect was congruent to thought content.  Her concentration and memory were described as poor.  Her thought processes were "somewhat blocked."  The examiner concluded, "[t]here is no evidence that [the] Veteran's mental health condition is worse than reported in her previous exam in May 2011."  He further opined, "[m]ental health problems appear to contribute mild impairments but not to severe impairments above and beyond impairments attributed to physical limitations.  Veteran's extremely poor performance on the mental status exam calls into question the validity of her responses."  A GAF of 55 was assigned.

Pursuant to the Board Remand, the Veteran was afforded a VA examination in April 2013.  The examiner noted that the Veteran has not had any psychiatric hospitalizations since her last VA examination.  She has not attempted suicide and reported that her most recent suicidal ideation was two or three days ago due to "just life."  She denied current suicidal or homicidal ideation.  She endorsed decreased interest/participation.  She stated that she sleeps eight hours per night and naps during the day when she can.  She is forgetful of appointments and her decision-making and reaction times are slow.  She characterized her motivation as low.  The Veteran brought a psychological report from her current psychologist with her.  The VA examiner noted that testing results "showed an elevated but valid MMPI profile, suggesting that the Veteran exaggerates symptoms as a cry for help and that mental health symptoms are likely to be related to her physical pain."  The Veteran exhibited disturbances of motivation and mood.  She was alert and oriented to time, place, and person.  She was dressed and groomed appropriately for her examination.  Her mood and affect were within normal limits.  The examiner described the Veteran's thoughts as logical and goal-directed.  Her speech was clear, relevant, and coherent.  The examiner noted that the Veteran's judgment/reasoning and analytical skills were fair.  The examiner indicated that the Veteran's level of occupational and social impairment was best characterized as, "[o]ccupational 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 medication."  A GAF of 55 was assigned.

The Board has thoroughly reviewed the record and has given full consideration to 38 C.F.R. § 4.7 (where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned) and 38 C.F.R. § 3.102 (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 issue shall be given to the veteran).  In determining whether the Veteran meets the schedular criteria contained in DC 9434 for the assignment of a 70 percent disability rating, the Board's inquiry is not necessarily limited to the criteria found in the VA rating schedule.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating).

With regard to the Veteran's MDD, the Board concludes that an increased rating of 70 percent, but no higher, is warranted.  In this regard, the Board acknowledges that the GAF scores assigned to this disability throughout the appeal period have reflected various levels of impairment-from moderate to severe.  However, it is the symptoms specifically noted at the multiple treatment sessions and examinations conducted during this appeal that are of the utmost significance.

In this regard, the Board finds that the symptomatology associated with the Veteran's service-connected MDD support the assignment of a 70 percent rating because this disability has been shown to result in occupational and social impairment, with deficiencies in most areas, such as work, family relations, and mood, due to such symptoms as near-continuous depression affecting the ability to function independently, appropriately and effectively; impaired impulse control with periods of unprovoked irritability with periods of violence; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, DC 9434.  Specifically, these symptoms have been consistently endorsed by the Veteran's treatment providers, numerous VA examiners, private evaluators, and the Veteran.  The Board has thoroughly reviewed the record and finds that the medical evidence including VA and private treatment records, VA and private examinations, and lay statements shows that the Veteran's MDD symptoms have been relatively consistent since the date of claim and is of such severity as to warrant a 70 percent evaluation throughout the entire appeal period.

The Board considered the assignment of a rating in excess of 70 percent.  See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the Rating Schedule, the pending appeal as to that issue is not abrogated).  However, total occupational and social impairment as a result of the Veteran's service-connected MDD have not been shown.  The evidence has not shown total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; or disorientation to time or place.  It is undisputed that the Veteran has a history of confrontations.  Crucially, the evidence of record does not support a finding that such symptomatology rose to the level of persistent danger of hurting self or others as is contemplated for the assignment of a 100 percent disability rating.  The Board also observes that the Veteran reported memory loss; however, there is no evidence of memory loss for the names of close relatives, her own occupation, or her own name.  Thus, the Board finds that such symptomatology has not been demonstrated by the evidence.

Further, the Board recognizes that the Veteran has experienced problems with motivation and social interaction, which have resulted in employment difficulties.  Notably, the Veteran was shown to maintain social relationships with family members and exhibited some interest in activities outside of the home such as attending church.  The Board recognizes that several treatment providers opined that the Veteran was unable to return to work due to her psychological symptomatology.  However, these conclusions were all rendered in support of the Veteran's workman's compensation claim.  The Board finds set forth by the VA examiners dated in May 2005, June 2006, June 2008, May 2011, May 2012, and April 2013 to be more persuasive as to the extent of the Veteran's psychological symptomatology than the conclusions rendered in support of her workman's compensation claim.  Moreover, the findings of the VA examiners are consistent with the voluminous VA treatment records in evidence which document moderate to severe psychological symptomatology without evidence of total occupational impairment.

Crucially, the presence of certain symptoms is not necessarily determinative.  These symptoms must also cause the occupational and social impairment in the referenced areas.  See Vazquez-Claudio, supra.  The voluminous treatment records and multiple VA examination reports were not indicative of total occupational and social impairment as a result of the Veteran's service-connected MDD.  Rather, the findings of the VA examiners and treatment records demonstrated that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  Thus, in this case, the symptoms shown in the treatment records and VA examinations do not equate to the symptoms contemplated for a 100 percent rating.

Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has shown that the Veteran's MDD warrants a 70 percent evaluation, but no higher, from the date of claim.



c. Additional Considerations

The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards.  See 38 C.F.R. § 3.321 (2012).  The current evidence of record does not demonstrate that Veteran's MDD has resulted in frequent periods of hospitalization or in marked interference with employment.  Id.

In this regard, the Board notes that it is undisputed that the psychiatric disorder has impacted the Veteran's occupational functioning, but it bears emphasis that the schedular rating criteria are designed to take such factors into account.  The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] 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."  38 C.F.R. § 4.1 (2012).  Here, the Veteran's psychological symptoms are expressly contemplated by the criteria discussed above.  38 C.F.R. §§ 4.10, 4.40.  Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.

III.  Service Connection Claim

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Here, the Veteran contends that she has radiculopathy of the right lower extremity secondary to her service-connected lumbosacral strain.  For the reasons set forth below, the Board concludes that service connection is not warranted.

Initially, the Board notes that it is undisputed that the Veteran is currently service-connected for a lumbosacral strain.

A review of the record demonstrates that the Veteran has repeatedly asserted that the pain associated with her service-connected lumbosacral strain radiates to her right lower extremity.  See, e.g., the VA examination reports dated August 1991, May 2005, May 2006, June 2008, September 2010, April 2012, and April 2013 & the VA treatment records dated April 1992, February 2001.  Crucially, however, there is conflicting medical evidence of record as to whether the Veteran is currently diagnosed with radiculopathy of the right lower extremity.

In a July 1995 letter, Dr. E.S., a chiropractor, noted a diagnosis of lumbar radiculitis.  A private treatment record dated December 2009 indicated that electrodiagnostic study revealed evidence of L5-S1 radiculopathy on the right and left.  An operative noted dated August 2012 documented a diagnosis of lumbar radiculopathy.  Crucially, the Board notes that this private operative note is not specific as to the right or left lower extremity.

In contrast, the June 2002 VA examiner determined that there was no objective evidence of lower extremity radiculopathy.  This finding was confirmed by the May 2004 VA examiner.  A January 2006 VA treatment record revealed that the Veteran was evaluated by neurology and underwent an EMG study which yielded a normal study with no evidence of radiculopathy/neuropathy.

In a December 2006 letter, Dr. W.L.H., a neurologist, stated that the Veteran has possible lumbar radiculopathy, which would require additional evaluation.  Notably, however, in a follow-up letter dated January 2007, Dr. W.L.J. indicated that the Veteran "had EMG and nerve conduction velocity studies . . . [which] reveal no evidence of . . . lumbar radiculopathy.  The MRIs fo the cervical and lumbar spine were unremarkable."

Consistently, the September 2010 VA (QTC) examiner determined that there was no pathology to render a diagnosis of lumbar radiculopathy.  The April 2012 VA examiner also determined that the Veteran had no signs or symptoms of radiculopathy.

Due to this conflicting medical evidence, the Board sought a clarifying opinion as to whether the Veteran is diagnosed with radiculopathy of the right lower extremity.  Pursuant to the Board Remand, the Veteran was afforded another VA examination in April 2013, at which time the examiner noted that the Veteran's complaints of radiating pain.  Following physical examination and neurological testing of the Veteran, the examiner concluded that "[i]t appears at least by EMG, Veteran has evidence of left L5 radiculopathy.  None on the right.  Her symptoms are not consistent with her x-ray or MRI findings.  MRI shows . . . NO compression of the right side.  No central stenosis.  Bone scan [dated in April 2012] did not show any evidence of degenerative changes in the lumbar spine."  The examiner concluded, "She has no evidence on exam, EMGs, or MRI of compression of anything on the right side.  She does have significant overlay."

Upon review of the record, the Board finds that the competent medical evidence demonstrating the absence of right lower extremity radiculopathy outweighs the medical evidence suggestive of a current diagnosis.  As indicated above, the April 2013 VA examination report was based on complete review of the Veteran's medical history and thorough examination of the Veteran.  The Board therefore places significant weight on the findings of the April 2013 VA examiner, who reviewed the entire record and conducted complete physical examination as well as neurological testing of the Veteran.  The examiner also provided detailed review of the radiographical findings.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  Crucially, the April 2013 VA examiner concluded that although there is evidence of radiculopathy of the left lower extremity, the evidence does not support a finding that the Veteran is currently diagnosed with radiculopathy of the right lower extremity.  The rationale was substantial, thorough, and based on the overall record.  

Although the Veteran is competent to describe neurological symptoms, she has not been shown to be a medical professional and is not competent to diagnose radiculopathy or its cause.  See Jandreau, 492 F.3d at 1376, 1377 (layperson competent to identify simple conditions such a broken leg, but not complex conditions such as cancer).  Her lay reports self diagnosing radiculopathy have no probative value.  Id.  Meanwhile, the competent medical evidence indicates that radiculopathy of the right lower extremity is not present.  See April 2013 VA examination report.

In conclusion, the preponderance of the evidence is against the contentions that Veteran has radiculopathy of the right lower extremity that is secondary to her service-connected lumbosacral strain.  Thus, the benefit-of-the-doubt rule is not helpful to the Veteran.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to an increased disability rating for service-connected lumbosacral strain is denied.

An increased disability rating of 70 percent, but no higher, for the service-connected MDD is granted, subject to controlling regulations applicable to the payment of monetary benefits.

Entitlement to service connection for radiculopathy of the right lower extremity is denied.


REMAND

For the reasons set forth below, the Board finds that the issues remaining on appeal must be remanded for further development.  Here, the Veteran contends that she suffers from radiculopathy of the bilateral upper extremities as secondary to her service-connected lumbosacral strain.  As indicated above, she also asserts entitlement to TDIU.

Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability.  See Wallin v. West, 1 Vet. App. 509, 512 (1998).

In this matter, it is undisputed that the Veteran is currently service-connected for lumbosacral strain.

With respect to current disability, the Veteran has repeatedly asserted that she suffers from numbness, tingling, and radiating pain to the upper extremities.  See, e.g., the Veteran's claim dated February 2006.

This claim was remanded in October 2012 for evidentiary development.  In the discussion of reasons for remand, the Board indicated that "[t]he evidence does not establish that the Veteran has a current diagnosis of bilateral radiculopathy of the upper extremities . . . To date, a VA medical opinion has not been provided for this claim.  However, based upon the current diagnosis and the service-connected disability, the Board finds that a VA examination and medical opinion are warranted for the bilateral radiculopathy of the upper extremities claim."

Critically, the Board accidentally omitted from the remand an instruction directing the AMC to provide the Veteran with a VA examination in order to address the outstanding questions of diagnosis and nexus with respect to the bilateral radiculopathy of the upper extremities claim.  As such, the April 2013 VA examination, which the Veteran was afforded pursuant to the October 2012 Board Remand, did not include diagnostic testing or medical findings pertaining to the radiculopathy of the upper extremities claim.  Accordingly, the Board's error must now be remedied and the Veteran should be afforded a VA examination upon remand in order to address the outstanding questions of diagnosis and nexus.

Additionally, the Veteran's claims file and Virtual VA claims file indicate that he receives continuing medical treatment.  Therefore, any pertinent ongoing treatment records should be obtained on remand.  38 U.S.C.A. § 5103A(c) (West 2002).  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).

The Veteran's claim of entitlement to TDIU is inextricably intertwined with the claim that currently remains on appeal.  In other words, if service connection as to the issue is granted, this will impact VA's analysis of the TDIU claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other).  Therefore, the Board will defer consideration of the TDIU claim.

Accordingly, the case is REMANDED for the following action:

1. After obtaining the appropriate releases where necessary, procure records of any outstanding treatment that the Veteran has recently received.  The Board is particularly interested in records of treatment that the Veteran may have received at the VA Medical Center in Houston, Texas, or any other VA facility since May 2013.  All such available documents should be associated with the claims file.

2. After the above-referenced development has been completed, VBA should schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the nature and etiology of his claimed bilateral radiculopathy of the upper extremities, if any.  Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished and the claims file should be made available to and be reviewed by the examiner in conjunction with the examination.  The examiner should either diagnose or rule out radiculopathy of the left and right upper extremities.  If radiculopathy of the left and/or right upper extremities is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not that the diagnosed disability(s) was proximately caused or aggravated by the service-connected lumbosacral strain, or whether the disability(s) is due to any aspect of the Veteran's military service.  The report should be associated with the Veteran's VA claims file.

The rationale for all opinions expressed by the VA examiner should also be provided.  If the examiner is unable to provide an opinion as to one of the questions posed, he/she should state the reasons therefore.

3. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to service connection for bilateral radiculopathy of the upper extremities and entitlement to a TDIU.  If the decision remains in any way adverse, the Veteran and her representative should be provided with a supplemental statement of the case and an appropriate period of time for response.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs