Citation Nr: 1330390 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-20 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for right lower extremity radiculopathy. 2. Entitlement to an increased rating for left lower extremity radiculopathy, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for postoperative spondylolysis at L4-5 with degenerative changes, currently evaluated as 20 percent disabling. 4. Entitlement to higher initial ratings for depression, currently evaluated as 30 percent disabling prior to July 6, 2011 and as 50 percent disabling since that date. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to May 1992. Eligibility for VA benefits purposes is established for the period from June 4, 1986 to June 3, 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The August 2009 decision service-connected depression and assigned it a 10 percent rating effective from the February 2009 date of claim. That 10 percent rating was changed to 30 percent in August 2012, effective from the claim date, and a 50 percent rating was assigned from July 6, 2011, the date of a VA psychiatric examination. Since the increase does not date back to the receipt of the original claim, there are two distinct time periods to be considered for this disability. The Veteran perfected an appeal with respect to the issue of service connection for tinnitus. Service connection for tinnitus was granted in an August 2012 rating decision. As that decision represent a full grant of the benefit sought with regard to the issue of service connection for tinnitus, it will not be addressed further in this decision. The Veteran also initiated an appeal as to a claim for service connection for posttraumatic stress disorder (PTSD). However, he specifically limited his substantive appeal to the issues discussed above. While a March 2011 RO hearing officer addressed the PTSD issue, that hearing transcript could not serve as a timely substantive appeal. The Veteran was notified by letter dated October 31, 2012, that the appeal period with respect to the PTSD claim had expired and that the Veteran's testimony was interpreted as a claim to reopen. The Board's decision will therefore be limited to the issues listed on the front page of this decision. The Veteran presented testimony at an RO hearing in March 2011, and a transcript of the hearing is associated with his claims folder. He failed to appear for a Board hearing in July 2013. All evidence which is of record, including through Virtual VA (VA's electronic data storage system), has been considered in this decision. FINDINGS OF FACT 1. The Veteran does not have a current right lower extremity radiculopathy disability. 2. The Veteran does not have moderate incomplete paralysis of his left lower extremity sciatic nerve. 3. The Veteran does not have forward flexion of his lumbar spine limited to 30 degrees or less or ankylosis of his entire thoracolumbar spine. 4. Prior to July 6, 2011, the Veteran's depression did not produce occupational and social impairment with reduced reliability and productivity, and from July 6, 2011, it does not produce occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity radiculopathy are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). 2. The criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for a disability rating in excess of 20 percent for postoperative spondylolysis at L4-5 with degenerative changes are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5239 (2012). 4. The criteria for a disability rating in excess of 30 percent for depression prior to July 6, 2011 and in excess of 50 percent for it from that date have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9433 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the service connection claim, the RO provided the Veteran pre-adjudication notice in a June 2009 letter. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the increased rating claims, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). March and April 2009 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The March 2009 letter provided notice regarding ratings and effective dates of awards. He has therefore received the general-type notice described in Vazquez-Flores. With respect to the initial ratings for depression, as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue in 2009 and 2011; and afforded the Veteran the opportunity to give testimony before the Board. The examination reports are adequate as the contain sufficient evidence to render a fair and impartial decision on the claims. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Service connection for right lower extremity radiculopathy The Veteran appeals the RO's denial of service connection for right lower extremity radiculopathy. He testified in March 2011 that he has shooting pain down his right leg about once a month. It occurs very quickly. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Service connection is in effect for postoperative spondylolysis at L4-5 with degenerative changes and related left lower extremity radiculopathy. Service treatment records from the Veteran's qualifying period of service show that the Veteran complained back pain in August 1987. The record specifically noted no pain radiating to the legs. In October 1987 the Veteran was listing and heard something "pop." November 1987 X-ray revealed no bony pathology. There was no notation of right leg complaints in September 1989 after heavy lifting. He reported a right leg tingling sensation in May 1990. Straight leg raising to 20 degrees on the right produced lower extremity numbness. The assessment was lumbar strain, possible herniated nucleus pulposis. Treatment records from the Veteran's non-qualifying period of service include a June 13, 1990 record wherein the Veteran complained of low back pain with right leg weakness. On June 1990 examination, the Veteran was able to move his right foot and toes and had equal sensation to sharp touch in both lower extremities. The assessment was lumbar sprain/strain. A June 14, 1990 X-ray report noted a defect at L4 consistent with spondylolysis. June 1990 inpatient records for treatment of back pain include a CT report that showed "no herniated disc" and an MRI report that showed "no degenerative changes in this disc or herniated disc." The report noted "[n]o compression fractures or disc space narrowing noted." In August 1990, the Veteran underwent back surgery at L4. The Veteran fell down stairs in April 1991 and weakness in the left leg was noted, but the record was silent as to right leg symptoms. Strength was 5/5 on the left, and an X-ray showed surgical hardware in place with no evidence of fracture, dislocation, or soft tissue abnormality. A March 1992 ortho evaluation noted that the Veteran complained of his left leg giving out, but no complaints were noted with respect to the right leg and there was no numbness in the legs at the time of the evaluation. A May 1992 discharge examination reflecting normal right lower extremity examination, and a history of fracture of L-3 and L-4 was noted with reconstructive surgery. The Veteran denied pertinent right leg symptomatology, and his right lower extremity neurological examination was normal. A VA X-ray of the back in December 1995 showed surgical hardware but no evidence of significant degenerative changes. During a January 1996 VA examination, he reported back pain and left lower extremity symptomatology, but the record was silent as to right lower extremity symptomatology. His reflexes in both legs were active and equal. The Veteran sought back treatment in February 1997 following a twisting injury when he was driving a loader with loss of sensation in his left leg. A diagnostic X-ray report noted satisfactory alignment, relatively well-maintained disc spaces, and no evidence of acute compression fracture or pathological lesion. A March 1997 private treatment record noted that the facet joints above and below the site of the fusion were "open." An MRI was ordered to rule out herniated nucleus pulposus. A March 1997 letter from the provider assessed lumbar radicular syndrome, but his letter only mentioned left lower extremity complaints. The MRI report specifically notes no definite disc herniation or other extra general defect. An April 1997 private treatment record noted that the MRI showed degenerative discs at L4-5 and L5-S1. The motor and sensory examination of the lower extremities was noted to be "intact," and the Veteran was assessed with lumbar strain. In June 1997, the Veteran sought private treatment for back pain radiating down the right leg after lifting heavy boxes. X-ray results were negative. During an August 1998 VA spine examination the Veteran reported pain radiating down his left leg, but was silent as to complaints with respect to his right leg. Strength, pulses, warmth, and reflexes in the lower extremities were normal. The examiner noted X-rays showed vertebral bodies of normal height and well-maintained intervertebral disc spaces. Right leg radiculopathy was not diagnosed. During an August 2005 VA examination, numbness and weakness in the right lower extremity were reported by the Veteran. Physical examination noted full 5/5 muscle strength and intact sensation in the right lower extremity. The impression was spondylolisthesis with left lower extremity radiculopathy. No impression or diagnosis regarding right lower extremity radiculopathy was provided. A private physician, Dr. J. L., provided a medical opinion in March 2009. He noted that he had reviewed all medical records and the claims folder. He concluded that the Veteran had a service injury to his spine and continued to have severe pain that radiates down both lower extremities since the time of the injury. The impression was status post back injury with surgical repair, resulting in bilateral lower extremity radiculopathy. Dr. J.L. noted MRIs subsequent to the 1991 surgery had shown "herniated discs" and gave the impression that the Veteran's spine disability included "disc herniation" which, in part, caused the bilateral lower extremity radiculopathy. On VA neurological and spine examinations in April 2009, the Veteran complained of intermittent sharp pain shooting in his lower extremities, left more than right, and intermittent pain of the toes of both feet. It was not clear that the symptoms were related to his back but he said that the leg pains could be associated with a day or two of increased back pain. He reported occasional shooting pain in the right lower extremity to the mid-thigh to the mid-calf, of relatively recent onset. On examination, right lower extremity vibration, light touch, and position sense were 2/2, while pain to pinprick was 1/2. Right knee and ankle jerks were 1+. X-rays from December 2008 revealed moderate disc space narrowing at L4-L5. Muscle strength was judged to be normal (5/5) in both lower extremities by direct and indirect testing. The examination reports noted that the Veteran failed to report for his scheduled electrodiagnostic testing. An MRI from December 2008 reported "no evidence of disc herniation, canal stenosis, or obvious neural impingement." On VA spine examination in April 2009, the examiner reported that significant examination findings included that there was "no pathology on the MRI that would suggest a nerve impingement at the L2-L3 level." On VA neurology examination in July 2009, the right lower extremity complaints were similar to those reported on VA examination in April 2009. On examination, muscle strength of the Veteran's right lower extremity was normal at 5/5, and sensory examination of it was normal. Right ankle reflexes were 2+ and there was no atrophy, abnormal muscle tone or bulk, or abnormal movements. Nerve conduction studies revealed no evidence of an active radiculopathy in the Veteran's right lower extremity. The examiner stated that the diagnosis was no electrodiagnostic or physical examination findings of a right lower extremity radiculopathy. During the Veteran's March 2011 RO hearing, he described right leg symptomatology. On VA neurology examination in April 2011, the Veteran complained of low back pain and radiation to both of his legs, left greater than right. On examination, right knee jerk was 2+, and right ankle jerk was 1+. Right lower extremity nerves were unaffected. The Veteran had normal vibration, position sense, pinprick, and light touch, and no dysesthesias. He had active movement against full resistance in right ankle dorsiflexion, plantar flexion, and great toe extension, with normal muscle tone and no atrophy. The Veteran's April 2011 MRI was considered, and noted to show no disc herniation and patent neural foramina. The July 2009 electromyogram/nerve conduction study was noted to show no evidence of an active radiculopathy in the Veteran's right lower extremity. It was noted that the Veteran has diabetes mellitus. The examiner concluded that there was no clinical or electrodiagnostic/nerve conduction study evidence of right radiculopathy. She noted that the EMG/nerve conduction study found no evidence of right radiculopathy, and that the MRI showed that the canal was broad and the neural foramina were patent throughout. There was no evidence of spinal or foraminal stenosis on MRI. Based on the evidence, the Board concludes that service connection is not warranted for right lower extremity radiculopathy, as the preponderance of the evidence is against a finding that the Veteran has had right lower extremity radiculopathy at any time during the current appeal. The negative evidence in this regard is the conclusions of the 2009 and 2011 VA examiners. These negative opinions outweigh the positive opinion of the Veteran's private physician in March 2009. The Board finds the opinion of the March 2009 physician to be less probative and persuasive because the support for Dr. J.L.'s conclusions is, in part, that "MRI's . . . have shown . . . herniated discs." This statement is factually inaccurate as none of the MRI reports of record show herniated discs. In fact, the most recent MRI reports in 2008 and 2011 clearly conclude that disc herniation is not shown. As Dr. J.L.'s opinion is based, at least in part, on inaccurate facts, it has little to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). On the other hand, the VA examiners clearly based their conclusion that the Veteran did not have right lower extremity radiculopathy on a review of the record; a consideration of the Veteran's lay statements regarding his symptomatology; the results of their physical examination of the Veteran; and results of diagnostic testing, including MRI reports, and, in the case of the 2011 neurological examiner, EMG reports. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A VA EMG/nerve conduction study of the Veteran's right lower extremity was normal in July 2009, and VA MRIs in December 2008 and April 2011 revealed no evidence of disc herniation, canal stenosis, or obvious neural impingement. The VA examiner in July 2009 indicated that there were no electrodiagnostic or examination findings of right lower extremity radiculopathy, after considering the December 2008 MRI, the July 2009 electrodiagnostic evidence, and the current examination findings. The VA examiner in April 2011 considered both the July 2009 EMG/nerve conduction study and the Veteran's April 2011 MRI, as well as examination findings, and concluded that there was no objective evidence of a right radiculopathy, including based on those findings. For these reasons, the opinions of the July 2009 and April 2011 VA examiners are given more weight than that of the Veteran's private physician in March 2009. Prejean v. West, 13 Vet. App. 444 (2000) (factors for determining probative value of medical opinions include their thoroughness and detail, whether they discussed why contrary opinions were not persuasive, and the opinion-writer's access to relevant records). The Board has also considered the Veteran's statements he has right lower extremity radiculopathy manifested by pain and weakness. He is competent to report symptoms like pain and weakness because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent, as a layperson, to supply a diagnosis of right lower extremity radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is so because such a diagnosis addresses internal neurological processes that are not capable of lay observation and requires interpretation of diagnostic reports like MRIs and EMGs. Medical expertise is necessary for such interpretation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to the existence of a neurological disability. Nothing in the record demonstrates that the Veteran has received any special training or acquired any medical expertise in evaluating neurological conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Since the preponderance of the evidence is against a finding that the Veteran has had right lower extremity radiculopathy disability at any time during this appeal, service connection for the same cannot be granted. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at any time during the pendency of that claim, even if the disability resolves prior to the Secretary's adjudication of the claim). Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of a current disability, service connection cannot be granted); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). Increased rating criteria Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. Under 38 C.F.R. § 4.40 (2012), functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45 (2012), factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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. 38 C.F.R. § 4.7. Left lower extremity radiculopathy The Veteran appeals the RO's January 2009 assignment of a 10 percent rating for left lower extremity radiculopathy. This is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, an evaluation of 10 percent is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires severe incomplete paralysis of the sciatic nerve. A 60 percent evaluation requires severe incomplete paralysis, with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. On VA neurology examination in April 2009, the Veteran reported numb patches of his left lower extremity that come and go, and intermittent pain of the toes of his left foot. He also complained of burning electrical pain that shoots down his left lower extremity to his middle 3 toes and at other times, just to his left calf. Examination revealed 5/5 muscle strength of his left lower extremity muscles. His left knee and ankle reflexes were 1+. There appeared to be some atrophy of the medial left thigh, which was 25 inches in circumference compared to the same area's circumference of 26 inches on the right medial thigh. The examiner stated that there were no findings related to the left sciatic nerve injury that were still present on objective testing on that examination, and that the Veteran failed to report for electrodiagnostic testing. On VA neurology examination in July 2009, the Veteran's complaints were similar to those reported in April 2009. On examination, his motor strength was 5/5 in his left lower extremity. Sensory examination was normal to vibratory sense, light touch, pinprick, and position sense. Left knee and ankle reflexes were 2+, and left plantar was normal. There was no muscle atrophy, abnormal muscle tone or bulk, or abnormal movements. Nerve conduction studies revealed no evidence of an active radiculopathy in the left lower extremity. There were some mild residual changes involving the left L5 and S1 myotomes, consistent with previous radiculopathy, but no active or acute muscle membrane changes were noted. During the Veteran's March 2011 hearing, he testified that his left leg goes out sometimes and that last year, it went numb/dead, and he went down. He experiences an electric shock, and the pain feels like his little toes will get shot off the end of his foot. On VA neurology examination in April 2011, the Veteran complained of pains in his low back radiating to his left leg. On examination, left knee jerks were 2+ and ankle jerks were 1+. Plantar flexion was normal. Vibration, pain or pinprick, and light touch sensation were decreased on the left side, and position sense was normal. Motor examination revealed active movement against full resistance in left hip, knee, and ankle flexion and extension, and in left great toe extension. Muscle tone was normal with no atrophy. The examiner reviewed the EMG/nerve conduction studies from July 2009 and the MRI from April 2011 and felt that the Veteran's left radiculopathy which had been diagnosed in 1991 was better, noting that recent EMG/nerve conduction studies revealed only residual changes and no active or acute muscle membrane changes. Based on the evidence, the Board concludes that no more than a 10 percent schedular disability rating is warranted for the Veteran's left lower extremity radiculopathy under Diagnostic Code 8520, as the Veteran does not have moderate incomplete paralysis of his sciatic nerve on the left. Instead, mild incomplete paralysis is more nearly approximated. The preponderance of the evidence indicates that the Veteran does not have any muscle impairment as a result of his service-connected left lower extremity radiculopathy. Muscle strength testing has revealed 5/5 strength in his left lower extremity on repeat occasions. Moreover, sensory examinations have been mostly or completely normal, and nerve conduction studies in July 2009 revealed no evidence of an active left lower extremity radiculopathy, with only mild residual changes involving the left L5 and S1 myotomes. While the Veteran testified in March 2011 that his left leg goes out sometimes, the objective medical evidence shows that there is no muscle impairment currently related to the left lower extremity radiculopathy. In light of the above, a schedular rating in excess of 10 percent is not warranted for the left lower extremity radiculopathy. In arriving at this conclusion, the Board has specifically considered whether the Veteran is entitled to a "staged rating." See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). It is the Board's conclusion, however, that the Veteran's service-connected left leg radiculopathy has never been more than 10 percent disabling since the time that the claim for increase was filed. A "staged rating" is not warranted. Postoperative spondylosis The Veteran's postoperative spondylolysis is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5239, which is for spondylolisthesis or segmental instability. Under the general rating formula for diseases and injuries of the spine, diseases and injuries to the thoracolumbar spine are to be evaluated 20 percent and higher under diagnostic codes 5235 to 5243 as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine.....................................................100 Unfavorable ankylosis of the entire thoracolumbar spine ..............................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.............................................................................40 . . . Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis............................................20 . . . Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): 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. The formula for rating intervertebral disc syndrome based on incapacitating episodes provides: With incapacitating episodes having a total duration of at least six weeks during the past 12 months........................................................................60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months............................................................40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months...........................................................20 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2012). To obtain a 40 percent rating under 38 C.F.R. § 4.71a's General Rating Formula for Diseases and Injuries of the Spine, the evidence would have to show forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ankylosis of the Veteran's thoracolumbar spine has not been reported in any of the medical records contained in the Veteran's claims folder, including the 2009 and 2011 examination reports, and including in the radiographic studies which have been reported. Additionally, the Veteran's range of motion was normal on April 2009 VA spine examination, and on VA spine examination in April 2011, he had flexion to 72 degrees, extension to 30 degrees, left lateral rotation to 30 degrees, right lateral rotation to 25 degrees, right lateral flexion to 25 degrees, and right lateral rotation to 30 degrees, without objective evidence of pain or additional limitations following repetitive motion. Accordingly, the Board concludes that the Veteran does not have forward flexion of his thoracolumbar spine limited to 30 degrees or less, or that he has ankylosis of his entire thoracolumbar spine. Accordingly, under the General Formula, a rating higher than 20 percent for the postoperative spondylolysis is not warranted. The Veteran has reported symptoms of fatigue, stiffness, weakness, spasms, decreased mobility, problems with lifting and carrying, pain (including intermittent, sharp, shooting flare-ups), and flare-ups every one or two months that last hours. Physical examinations revealed normal gait and posture, no muscle spasm, and no additional limitation or objective evidence of pain after repetitive motion. Under the circumstances, and considering the totality of the evidence, the Board finds that the overall limitation of motion in the Veteran's low back cannot be properly characterized severe enough to warrant the assignment of a higher evaluation, even when 38 C.F.R. §§ 4.40, 4.45 are considered. To obtain a 40 percent rating under 38 C.F.R. § 4.71a's Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the evidence would have to show incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. This is not shown. On VA examination in April 2009, the Veteran reported that he had muscle spasms and that he was told to have 2 days of bed rest once in the last year. The examiner noted that there was no record noted for the period of time mentioned. On VA neurology examination in April 2011, the examiner indicated that there were no incapacitating episodes of spine disease. Accordingly, the Board concludes that the Veteran does not have incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. In light of this, under formula for rating intervertebral disc syndrome based on incapacitating episodes, a rating higher than 20 percent for the postoperative spondylolysis is not warranted, even when 38 C.F.R. §§ 4.40, 4.45 are considered. The Veteran's March 2011 RO hearing testimony did not contain any evidence of thoracolumbar spine ankylosis or limitation of flexion to less than 30 degrees. In light of the above, a schedular rating in excess of 20 percent is not warranted for the postoperative spondylolysis at L4-5 with degenerative changes. In arriving at this conclusion, the Board has specifically considered whether the Veteran is entitled to a "staged rating." See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). It is the Board's conclusion, however, that the Veteran's service-connected low back disorder has never been more than 20 percent disabling since the time that the claim for increase was filed. A "staged rating" is not warranted. Depression The Veteran appeals for a higher rating than 30 percent for his depression prior to July 6, 2011, and higher than 50 percent from that date. It is rated as dysthymic disorder, 38 C.F.R. § 4.130, Diagnostic Code 9433. The Veteran's depression is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which a 30 percent evaluation is warranted where 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2011). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. 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). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, 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 at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. VA treatment records include an October 2008 record which noted that the Veteran was recently separated and was not interested in counseling. He was to continue his prescription of Celexa and his dosage was increased. A December 2008 record noted that the Veteran was fully oriented with normal speech and appropriate affect. He reported trouble sleeping and that he was in the process of a divorce. On VA psychiatric examination in July 2009, the Veteran indicated that he loved and trusted his wife of 14 years, although their marriage was "rocky at points," and that they spent evenings together reading. He was active in his household and he and his wife worked well as a team to resolve family and household decisions. He regularly took care of household chores and tasks and shopped independently or sometimes while accompanied by his wife, as he became anxious when around a lot of people. He shopped at odd hours to reduce anxiety, and sometimes waited in the car for his wife if the store was busy. He was involved in their finances. He had 3 children, loved them, and felt close to them. He was an active father who was very supportive of the childrens' school and community activities. He coached his son's games and did well when his attention was focused on coaching tasks, but he became anxious when observing a game and tended to isolate. He was close with his father and missed him now that he was gone, and he was close with his mom, whom he would call pretty regularly. He would call his siblings to talk every 2 months and invited them to spend time with his family and wanted his children to maintain contact with their cousins. The Veteran was close to a cousin who lived in Germany and had 2 close friends with whom he had contact 1-2 times a week. When they got together, they would play music and shoot the breeze and do stuff in the garden. He also had a number of acquaintances with whom he maintained positive interactions. He would golf with others or play cards. He could do okay in small groups if it was for a short time and he could pick his chair. He reported positive routine contact with neighbors and occasional socializing with other couples. He regularly participated in church services and attended a marriage group through the church 2 times a month. The Veteran was sober and did not smoke marijuana. He denied current suicidal ideation. On examination, the Veteran was appropriately dressed and groomed with adequate hygiene. He was very pleasant, cooperative, and open, and his level of activity and speech rate, rhythm, clarity, and volume were normal. He was well oriented to situation, time, place, and person, he had intact abstract reasoning and attention/concentration, and his intelligence was broadly average. His memory was intact, and his judgment and insight were fair. His prevailing mood was melancholy, but his affect was full range, and his thought process was goal directed and well organized. No suicidal or homicidal thoughts or delusion ideation was reported. He was in contact with reality. The examiner indicated that there was not occupational and social impairment with reduced productivity and reliability due to mental disorder signs and symptoms, but that there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task due to mental disorder signs and symptoms. The GAF was 53, with the examiner noting that the score is in a range specifying moderate symptoms or moderate difficulty in social or occupational functioning. On VA evaluations in August and November 2009, the Veteran denied being depressed. He denied feelings of hopelessness, and he denied having thought about harming or killing himself or anyone else in the past month. On July 6, 2011 VA psychiatric examination, the Veteran reported that he and his wife had been separated for over a year now, and that the relationship was strained by his irritability. He stated that he felt depressed about 1 day per week, for all day, and occasional crying spells. Depressive symptoms were assessed to be moderate. On examination, the Veteran was cooperative and friendly, and he had an appropriate affect, good mood, and intact attention. His orientation was intact to person, time, and place, and his thought process and content were unremarkable, with no delusions. As for judgment, he understood the outcome of behavior, and his intelligence was average. He had no obsessive or ritualistic behavior, panic attacks, or homicidal or suicidal thoughts, and his impulse control was felt to be fair. Remote, recent, and immediate memory were normal. The Veteran reported that he was working in an office and that he had done so for 2 years, and that he was doing well at work and got along well with supervisors and co-workers. He had lost no time from work during the last 12 months. The Veteran's current GAF was 60. The Veteran did not have total occupational and social impairment due to mental disorder signs or symptoms, and they did not result in deficiencies in judgment, thinking, family relations, work, or mood. There was no reduced reliability and productivity due to symptoms. There was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but the Veteran had generally satisfactory function, with routine behavior, self-car, and normal conversation. The Board concludes that prior to July 6, 2011, the preponderance of the evidence is against a finding that the Veteran's psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. The VA psychiatric examiner in April 2009 concluded that this was the case after considering the Veteran's symptoms, and the symptoms reported at that time were consistent with that determination. The Veteran had a normal affect, his speech was not circumstantial, circumlocutory, or stereotyped, he did not have panic attacks more than once a week, and he did not have memory impairment. There was no evidence of difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation or mood, or difficulty in establishing and maintaining effective work and social relationships. Although part of this period the Veteran had marital problems, he maintained positive relationships with family and friends. Significantly, the examiner noted that the Veteran had "relatively good coping skills at present, strong family support, and compliance with medications." Although his GAF of 53 on this examination is slightly lower than the GAF noted in the 2011 VA examination, the GAF score is just one factor for consideration. Further, and the 2009 examiner found this GAF score was consistent with "mild to moderate functional impairment," again signaling that a rating higher than 30 percent is not appropriate. The Board also concludes that from July 6, 2011, the preponderance of the evidence is against a finding that the Veteran's psychiatric symptoms resulted in occupational and social impairment, with deficiencies in most areas. He was depressed about 1 day a week with occasional crying spells, and his depressive symptoms were assessed as moderate. He was cooperative and friendly and he had an appropriate affect, good mood, and intact attentions. He had no obsessive or ritualistic behavior, panic attack, or homicidal or suicidal thoughts, and impulse control was fair. Memory was intact and he had been working in an office for 2 years, getting along well with others there and losing no time from work in the past year. His GAF was 60 and the examiner indicated that his symptoms did not result in deficiencies in judgment, thinking, family relations, work, or mood (most areas). Accordingly, based on the evidence, the Board finds that a schedular rating higher than 30 percent prior to July 6, 2011 or higher than 50 percent from that date for depression is not warranted. In arriving at these conclusions, the Board has specifically considered whether the Veteran is entitled to additional "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). It is the Board's conclusion, however, that the stages already assigned for the Veteran's depression are appropriate. Extraschedular and Rice Considerations The Board recognizes that the Veteran and the record may be understood to suggest impact of the service-connected disabilities on the Veteran's work functioning. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran for his left leg radiculopathy, low back disability, and depression fit squarely with the criteria found in the relevant Diagnostic Codes, as discussed above. In short, the rating criteria contemplate not only his symptoms but the severity of his disabilities. For these reasons, referral for extraschedular consideration is not warranted. Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran's July 2009 VA psychiatric examination report indicates that he did well academically in college courses which he stopped taking in 2008; that he had had multiple supervisory positions post-service; had driven trucks and run equipment and worked in oil fields; and had last worked for the Census Bureau about a month before the examination. He had been laid off after working there for about 5 months and he anticipated being called back when they required more staff. The Board notes that the April 2011 VA neurology examination shows that the Veteran's low back disability has a moderate impact on physical employment and none on sedentary employment. The July 2011 VA psychiatric examination report indicates that his depression causes occasional decrease in work efficiency. At that time, the Veteran had been employed full time for 2 years without missing work and was getting along well with workmates. There is no indication that his left lower extremity radiculopathy has caused him any employment problems and he reported in July 2011 that he had missed no work in the past 2 years. Accordingly, the Board concludes that further action is not necessary with regard to a TDIU at this time. The preponderance of the evidence is against service connection for right lower extremity radiculopathy and higher ratings than those assigned for left lower extremity radiculopathy, postoperative spondylolysis at L4-5 with degenerative changes, and depression, and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for right lower extremity radiculopathy is not warranted. A rating in excess of 10 percent for left lower extremity radiculopathy is not warranted. A rating in excess of 20 percent for postoperative spondylolysis at L4-5 with degenerative changes is not warranted. A rating in excess of 30 percent for depression prior to July 6, 2011 and 50 percent from that date is not warranted. The appeal is denied. ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs