Citation Nr: 1337175 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-36 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), with symptoms to include acid reflux, to include as secondary to service-connected degenerative disc disease. 2. Entitlement to an increased rating for degenerative disc disease at L5, evaluated as 20 percent disabling prior to November 5, 2009. 3. Entitlement to an increased rating for degenerative disc disease at L5, evaluated as 40 percent disabling since November 5, 2009. 4. Entitlement to an increased rating for left lower extremity radiculopathy, evaluated as 10 percent disabling. 5. Entitlement to an initial disability rating for right lower extremity radiculopathy, evaluated as 10 percent disabling. 6. Entitlement to an initial evaluation in excess of 30 percent for depressive disorder, also claimed as anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran had active service from April 1997 to February 2000. These claims come before the Board of Veterans' Appeals (Board) from rating decisions by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board observes that in a letter received in July 2008 the Veteran reported that he experienced upper back pain and numbness, with radiation to his shoulders, arms, and hands. He stated that he was "not given a percentage of disability" for the upper region of his back, arms or hands. As such, it appears that he is raising a new claim, which has not yet been addressed. The Board refers this issue to the RO for appropriate action and/or clarification. In a March 2010 rating decision, the Veteran was separately awarded service connection for radiculopathy of the right lower extremity, associated with degenerative disc disease at L5. He was assigned a 10 percent rating for the right lower extremity, effective August 14, 2009. Because radiculopathy of the right lower extremity was awarded during the course of this appeal for the Veteran's back disability, and because consideration of awarding separate evaluations for neurological manifestations of lumbar spine disability is specifically directed under the current rating criteria applicable to the spine, the Board believes that this separate rating is part and parcel of the back claim that has been perfected on appeal, and its propriety will be considered in the decision below. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issue of entitlement to service connection for stomach problems, variously diagnosed as GERD, to include symptoms such as acid reflux, and to include as secondary to service-connected degenerative disc disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to November 5, 2009, the Veteran's lumbar spine disability has been manifested by forward flexion limited to no less than 60 degrees with pain, and combined range of motion to 210 degrees with pain, and there were no signs of ankylosis, or spasm and/or guarding severe enough to result in abnormal spinal contour. 2. Since November 5, 2009, the Veteran's lumbar spine disability has been manifested by forward flexion limited to no less than 30 degrees, and there were no symptoms of ankylosis. 3. During the entire time period on appeal, there were no physician-prescribed periods of bedrest. 4. The Veteran's left lower extremity radiculopathy was characterized by normal reflexes, normal sensory and motor tests, but also with radiating pain and numbness, referenced by the examiner as moderate to severe radiculopathy. 5. The Veteran's right lower extremity radiculopathy was characterized by normal reflexes, normal sensory and motor tests, but also with radiating pain and numbness, referenced by the examiner as moderate to severe radiculopathy. 6. The Veteran's depressive disorder with anxiety has been characterized by symptoms to include panic attacks several times weekly, flattened affect, and mood disturbances and results in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Criteria for a rating in excess of 20 percent for a lumbar spine disability prior to November 5, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2013). 2. Criteria for a rating in excess of 40 percent since November 5, 2009, for degenerative disc disease at L5, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2013). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 20 percent rating, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1-4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8620 (2013). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 20 percent rating, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C.A. 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1-4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8620 (2013). 5. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 50 percent rating, but no higher, for depressive disorder, also claimed as anxiety, associated with degenerative disc disease, L5, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.21, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, providing VA examinations. The March 2011 psychiatric and November 2009 VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal, and are adequate for purposes of this appeal. There is no evidence that any VA error in notifying or assisting the Appellant reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Degenerative disc disease at L5 Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, and include consideration of weakened movement, excess fatigability, incoordination, swelling and pain on movement. 38 C.F.R. § 4.45 (2013). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2013). The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following applicable ratings are assigned for disability of the thoracolumbar spine: A 20 percent rating is assigned 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 not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2013). Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) 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): 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): Round each range of motion measurement to the nearest five degrees. Note (5): 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): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2013). In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 40 percent rating when incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5242 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) following 38 C.F.R. § 4.71a, Diagnostic Code 5242 provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever results in a higher evaluation for that segment. Radiculopathy Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Diagnostic Code 8620, under which the Veteran is currently rated, addresses the criteria for evaluating neuritis of the sciatic nerve, and is consistent with the criteria for evaluating degrees of paralysis set forth below. 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2013). Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2013). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. The Veteran is currently awarded a 20 percent rating for degenerative disc disease at L5 from March 21, 2007 to November 4, 2009, and a 40 percent rating from November 5, 2009. He is also awarded a 20 percent rating for service connected left lower extremity radiculopathy since March 21, 2007, and a 10 percent rating for right lower extremity radiculopathy, effective August 14, 2009. The Veteran contends that he is entitled to greater ratings for his disabilities. VA treatment records from 2007 show that the Veteran's gait was within normal limits. He experienced tenderness in the lumbar spine area and had a positive straight leg raising test. The Veteran denied experiencing muscle spasms of the lumbar spine. The Veteran was provided a July 2007 VA examination for his spine. He reported that he experienced constant low back pain that radiated down his left lower extremity with numbness in the back of his leg. The flare was constant without medication, at a level 10 of 10. Pain increased with prolonged sitting. The Veteran used a brace. He had been incapacitated one day over the previous year. He reported that he had lost two jobs because of his back; one which required prolonged sitting, and the other that required loading pallets on trucks. The Veteran reported that his back interfered with his current job when he experienced increased pain after sitting. He reported that the pain interfered with activities of daily living, to include being unable to play with his daughter, exercise, run, or have relations with his wife. On examination, his gait was steady and smooth, and his posture was good. Range of motion testing revealed forward flexion to 90 degrees, with pain at 60 degrees. Extension was from 0 to 30 degrees. Left and right lateral flexion, and left and right rotation were each from 0 to 30 degrees, with pain at 30 degrees. There was pain with range of motion. Repetition produced increased pain, weakness, lack of endurance, fatigue and incoordination with forward flexion to 60 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally with no additional loss of motion. X-ray impression was of an essentially normal lumbosacral spine. Computed tomography scan was of L4-5 broad disk bulge with a broad ventral disk protrusion, which resulted in moderate central canal stenosis. Diagnosis was of mechanical back with lumbar spasm and radiculopathy, left lower extremity, and broad disk bulge, L4-5, with broad ventral disk protrusion and moderate central canal stenosis. In May 2008 the Veteran described the effects of his back pain, to include interfering with spending physical, quality time with his children due in part to pain. He also reported that he occasionally fell to the ground because of his back pain, unable to move for approximately half an hour, and hardly moving for three weeks. He expressed that he was unable to perform household chores such as caring for his lawn, or automobile maintenance. VA treatment records from February 2008 show magnetic resonance imaging with impression of multi level disc protrusions L4-5 to the left and L5-S1 affecting both sides. Magnetic resonance imaging of the lumbar spine in 2008 revealed central skewed to the left broad-based protrusion with annular tear producing moderate acquired central spinal canal stenosis (L4-L5), and degenerative disc disease at L5-S1 with small central disc bulge/osteophyte complex without evidence of lateralization or evidence of compromise of the neural foramina. Chronic back pain was assessed. April 2008 neurosurgery consult revealed that the Veteran reported pain radiated down the posterior aspects of his legs into his feet, urinary urgency, and feeling as if his leg went to sleep. There was no evidence of myelopathy, and the Veteran walked without assistance, and without difficulty. Lower extremity reflexes and motor function were normal throughout at five of five and two plus. There was at that time lack of clear lumbar radiculopathy, such that no neurosurgical intervention was indicated at the time. Conservative treatment was recommended. The Veteran reported experiencing back pain that was a 10 of 10, and his legs went to sleep. June 2008 note indicated that degenerative joint disease was present, but that there was no abnormal spinal curvature. The Veteran denied new back pain, muscle spasms or new joint disorders. Private electrodiagnostic study in part revealed evidence of severe chronic L4 and L5 radiculopathy bilaterally, and S1 radiculopathy on the left causing significant axonal loss more throughout the peroneal motor nerve as compared to the posterior tibial motor nerves. As compared to studies related to the back in 2005, it was apparent that the Veteran's condition was regressing with further axonal losses. April 2008 private treatment note indicated that bowel function was normal; however, the Veteran reported bladder incontinence problems. March 2009 imaging of the lumbar spine gave impression of mild degenerative disc disease at L4-5 and L5-S1. There was no acute injury. In 2009, the Veteran reported experiencing worsening back pain, weakness in his lower extremities, and he requested a cane and back brace. He indicated that he experienced some bowel and bladder incontinence. He was treated with medication management, to include such prescriptions as oxycodone, and a transcutaneous electrical stimulation unit. He reported that treatment either did not help, or helped very minimally. July 2009 lumbar spine magnetic resonance imaging gave an impression of mild-to-moderate multilevel degenerative disc disease and degenerative joint disease with associated ligamentous hypertrophy, with consequent mild spinal canal stenosis at the L4-L5 and consequent mild bilateral L5-S1 neuroforaminal stenosis. There was a focal left paracentral protrusion with associated probable annular tear arising from posterior aspect of the L4-L5 intervertebral disc, which abuts descending left L5 nerve root. There was also minimal endplate degenerative changes noted in the superior endplates of the S1 and L5 vertebral bodies. In September 2009 the Veteran indicated that he could no longer work labor-intensive jobs due to his back. He described how it interfered with activities of daily living. He described wearing a back brace, and taking medications, to include for pain and inflammation. He indicated that he experienced limited movement. He reported that his left lower extremity pain was unbearable, interfered with daily activities, and was treated with medication and a cane. The Veteran was afforded a VA examination in which his lumbar spine was evaluated in November 2009. At that time, range of motion testing revealed forward flexion limited to 30 degrees, extension to 0 degrees, and lateral rotation and lateral flexion to 10 degrees each for the right and the left. Range of motion testing revealed pain throughout motion, but was not further limited in degree of motion following repetition. Range of motion testing was associated with pain, but no weakness, instability, or incoordination following testing. As such, the Veteran's motion was grossly restricted according to the examiner. The Veteran was noted to walk with a slow, painful gait. He used a cane and a back brace. X-ray revealed mild, multilevel degenerative disc disease. Regarding right lower extremity radiculopathy the Veteran reported experiencing pain in the right buttock radiating down the left to the front of the thigh and the groin. He reported a similar problem with shooting pains as he experienced on his left lower extremity. He reported that although the left side had originally been worse than the right, he experienced worsening right side symptoms that were more similar to the left side at this time. He indicated that movement involving the lower extremities aggravated his symptoms, such as walking, jarring, and sudden movements. Rest alleviated the pain; however, when he would get up he again experienced sharp pain. He reported that the discomfort interfered with activities of daily living, such as dressing himself. His tolerance for walking was limited to one block, and even that required the use of a cane and caused pain. Examination revealed two plus reflexes in the knee and ankles, the ability to feel in his lower extremities, and five of five power in both lower extremities. Impression was of lumbar spine degenerative disc disease, L4-L5 with herniated nucleus pulposes, and bilateral lower extremity radiculopathy. The examiner indicated that there was no question that the Veteran was in pain, had a back problem, and based on two magnetic resonance imaging studies had herniation in the distal lumbar spine. The Veteran also experienced referred neurological pain. There was not a neuropathy in the sense that the Veteran still had motor and sensory function, and normal reflexes. The examiner indicated that the Veteran's pain was, in his opinion, sciatic referred pain. The examiner determined that the peculiar distribution of pain, mainly in the thigh probably related to herniation at the fourth lumbar vertebra through fifth lumbar vertebra radiculopathy. The examiner opined that the Veteran had a moderate to severe disability, referencing the radiculopathy. VA treatment records through 2011 show that the Veteran continued to experience numbness, back pain, and radiculopathy. He was advised that narcotics were not the best treatment for his back pain. He reported that he had fallen from his back giving out. The Board has considered the Veteran's lay statements that his lumbar spine disability is worse than currently evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's lumbar spine and associated lower extremity radiculopathy has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than any subjective reports of increased symptomatology at a specific disability level. Regarding his degenerative disc disease prior to November 5, 2009, forward flexion was at most limited to 60 degrees with pain, and combined range of motion to 210 degrees. The Veteran reported bowel and bladder impairment and that he experienced urinary urgency. He wore a brace, and experienced lumbar spasm, but there was no abnormal spinal contour. The Veteran reported that he had hardly moved for three weeks following an instance when his back gave out. There is no indication that the Veteran experienced ankylosis of the thoracolumbar spine, and there is no indication that there was spasm or guarding severe enough to result in abnormal spinal contour. There is also no indication that there was physician-prescribed bed rest for at least four weeks. As such, the preponderance of the evidence is against a finding that the criteria for the 40 percent rating for lumbar spine disability have been met, and the Veteran is entitled to no higher rating that the 20 percent currently assigned. Regarding his degenerative disc disease from November 5, 2009, forward flexion was at most limited to 30 degrees, and combined range of motion to 70 degrees. The Veteran wore a brace, used a cane, and walked with a slow, painful gait. His reflexes were normal, and he had motor and sensory function. He had sciatic referred pain, and radiculopathy from the L4-L5 herniation, which was moderate to severe. Again, there was no indication of ankylosis, either favorable or unfavorable. As such, the preponderance of the evidence is against a rating in excess of 40 percent for degenerative disc disease at L5. Although the Veteran has reported urinary impairment, this has been considered in his separately service-connected and rated erectile dysfunction. For instance, in his November 2009 genitourinary examination for erectile dysfunction, the Veteran denied urinary incontinence, rather he indicated that he occasionally leaked urine, and urinated approximately six times a day and two times a night. In March 2009 the Veteran reported experiencing bowel impairment. This was not, however, mentioned at any other VA examination or in other treatment. The Board is not able to identify any further evidence of neurological symptomatology associated with the service-connected low back disability, other than that radiculopathy discussed below. Therefore, a separate rating in excess of that herein granted or referred to the RO is not warranted for neurological impairment. As noted in the introduction, the issue of a bowel disorder related to degenerative disc disease has been referred. Regarding the Veteran's service-connected left and right lower extremity radiculopathy, the sum of the evidence indicates that he experiences normal sensory and motor functions, as well as normal reflexes. Nevertheless, he experiences sciatic referred pain, and the November 2009 examiner indicated his radiculopathy was moderate to severe. As such, resolving every reasonable doubt in the Veteran's favor, the Board finds that he is entitled to a 20 percent rating for each of his left and right lower extremity radiculopathy. His symptoms, however, do not rise to the level contemplated in the higher, 40 percent rating pursuant to Diagnostic Codes 8520, 8620. He did not indicate there was muscle atrophy, and sensory examinations and muscle strength were as noted, normal. The Board has considered additional staged ratings, and finds that under the circumstances they are not warranted. The symptoms presented, during the periods of time addressed in this decision, by the Veteran's back disorder, and associated left and right lower extremities radiculopathy, to include pain, numbness, and limited motion are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other Veterans with the same or similar disability. There is no evidence at any time during the appeal that the Veteran's disabilities necessitated frequent hospitalization. The Board finds no evidence warranting a referral of this claim for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Depressive Disorder with anxiety Depressive disorder, claimed also as anxiety is rated under Diagnostic Code 9434. The General Rating Formula for Mental Disorders provides for a 30 percent rating for occupational and social impairment with occasional decreases 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 rating 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 understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such symptoms as" 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 only 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). The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). GAF scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Initially, the Board observes that in July 2011 the RO granted entitlement to service connection for depressive disorder, also claimed as anxiety, and evaluated it as 30 percent disabling, effective May 9, 2008. VA treatment records from 2008 show that the Veteran had a positive depression screen, and reported experiencing symptoms to include panic attacks. He appeared depressed and had a flat affect. VA treatment records from 2009 show that the Veteran reported experiencing symptoms to include panic attacks, nightmares, difficulty sleeping, irritability, decreased concentration, hypervigilance, and an exaggerated startle response. He was assessed as having panic disorder without agoraphobia and depressive disorder not otherwise specified. He was assigned a Global Assessment of Functioning score of 51. He reported arguing with his wife often. He also discussed work problems related to his back, and possible legal penalties for inability to pay child support. He reported experiencing depression, and vague suicidal thoughts (with no plan or intent). In 2009 the Veteran was assessed as having a GAF score of 55, with diagnoses of dysthymic disorder and panic disorder. He was clean, calm and cooperative. The Veteran's affect was constricted, and mood was the same. Thought process was considered goal-directed, and content without suicidal or homicidal ideations, auditory or visual hallucinations, paranoia, or delusions. The Veteran reported experiencing auditory hallucinations, albeit vaguely. A July 2009 letter from A. G.L. Elkon, Ph.D., indicated that the Veteran's symptoms included depressed mood, irritability difficulty sleeping, loss of interest in previously enjoyed activities, and difficulty in relationships. Notably, he suffered from frequent and debilitating panic attacks. A corresponding July 2009 treatment note assessed the Veteran as having a GAF score of 55. The Veteran reported that he had experienced legal difficulties due to his inability to pay child support. The Veteran reported that he was unemployed, and had been since 2007, prior to which time he worked in the service center for WalMart. He was appropriately dressed and groomed, with sufficient attention and concentration. His memory was intact, and he was oriented. His behavior was defensive, angry, and hostile. His speech was clear, coherent, and spontaneous. His mood was dysphoric, depressed, anxious, and irritable. His affect was angry, irritable, and dissatisfied. He had neurovegetative signs of depression, listed as initial onset of insomnia, reduced interests, reduced energy, reduced concentration, thoughts of death and dying, agitation, and anhedonia. His thought process and content were poor. His thought content was relevant. His judgment was poor, and insight fair. He was assessed with panic disorder and major depressive disorder. VA treatment records through April 2011 show that the Veteran was treated for anxiety and depression, to include with medications such as Prozac. His symptoms included a flat affect, vague auditory hallucinations, panic attacks, bad dreams, anxiety, depressed mood, limited energy, irritability, insomnia, passive suicidal ideation, poor sleep, lack of energy, and poor concentration. In May 2009 he was assessed as having a GAF score of 55. The Veteran reported no history of suicide attempts, or homicidal ideation. He was treated with various medications to include Alzprazolam for anxiety, and Trazadone. Private treatment records also document the Veteran's symptoms to include emergency room visits for panic attacks related to his anxiety. Symptoms included depression and anxiety. His medications included Xanax. The Veteran has submitted statements to the effect that his family and personal life suffer as a result of his depression, anxiety, and related panic attacks. VA treatment notes from November 2009 indicated that the Veteran had a brighter affect, and mellow mood and affect. He was at that time assessed as having a GAF score of 63. Other treatment notes that month assessed a GAF score of 57. VA treatment notes from 2010 indicated that the Veteran was experiencing marital conflict, and intense, more frequent panic attacks. He had a gun for protection, and experienced two break-ins. He denied suicidal or homicidal ideation and audio or visual hallucinations. Insight and judgment were adequate. Mood and affect were "not good." He was assessed as having a GAF score of 60. The Veteran was afforded a March 2011 VA psychiatric examination. The Veteran was described as being terse and irritable during the interview. The Veteran reported that he did not get along with his wife. His first marriage had reportedly ended for the same reasons that he was having problems in his current marriage. He reported that he experienced daily, persistent depression, rated as a 10 of 10. He indicated that he experienced poor sleep (with several awakenings through the night), and experienced difficulty falling asleep. He reported experiencing "crazy dreams" about war. He endorsed difficulty focusing, for example on managing bills. He had a low sense of self worth, and endorsed frequent guilty feelings. He reported feeling hopelessness and helplessness. He occasionally had thoughts of suicide. He reported no homicidal thoughts. The Veteran reported hearing voices that told him to do things, such as hit someone else. He also reported that when he was at his house it seemed as if someone walked by, even though no one was actually there. The Veteran endorsed anxiety, and explained that before he recognized the symptoms as a panic attack, he used to go to the emergency room thinking that he was having a heart attack. He described the panic attacks as occurring two to three times weekly. The Veteran was short tempered. He indicated that he could not concentrate. The Veteran did not work. The Veteran reported that his daytime activities included picking his daughter up from school, studying radiology at college, and looking online for work. He indicated that he had no friends, and no contact with his family of origin. He seemed to have little contact with his children. He reported that he attended church monthly. The Veteran denied going out recreationally with his family, and indicated that he never took vacations. The Veteran reported that he was often too depressed to shower, and that his wife handled the family finances because he could not focus. On examination, the Veteran was clean, well groomed, and in casual clothing. He seemed irritated to be at the appointment, and at times as if he were falling asleep, although he remained alert. He sat with slumped posture, and often closed his eyes. His speech was normal in rate, tone, rhythm and volume, but his answers were terse. He denied active suicidal and homicidal thoughts. He reported that he experienced both auditory and visual hallucinations; however, the examiner indicated that the character of the reported auditory hallucinations was more consistent with thoughts than with psychotic phenomena. No delusions were elicited. His mood was depressed and anxious. The Veteran's affect seemed irritable and constricted. The Veteran seemed to endorse almost all questions positively. Yet, the Veteran had some trouble identifying when he experienced guilty feelings, or problems with concentration. The Veteran was alert and oriented. He did miss the precise date by several days. He also gave an approximate answer to the city. The examiner reviewed the Veteran's claims folder, to include recent GAF scores ranging from 51 to 55. The examiner diagnosed the Veteran as having depressive disorder not otherwise specified, and assessed a GAF score of 58. In sum, the examiner indicated that the Veteran had well-documented complaints of depressed mood, poor sleep, markedly diminished interest, low appetite, fatigue, feelings of worthlessness, poor concentration, and recurrent thoughts of death. The examiner indicated, however, that he sensed a noticeable element of exaggeration in the examination. The Veteran endorsed essentially all symptoms at a high rate of frequency and a high level of severity. In some instances, he seemed to have difficulty giving examples of how he noticed the problem. The examiner indicated that the Veteran's presentation was also contradictory, giving as an example his denial of using pain medication, but appearing as if he would fall asleep during the interview. In addition, the Veteran's reports were not verified in some instances, such as his reported weight loss that was undocumented in medical records. The examiner believed the Veteran was overly invested in appearing sick, to a point where answers were contradictory. For instance, the Veteran reported poor grades were due to unavailability of his mental health clinicians, when records indicated this was not the case. The examiner indicated that the Veteran's reported inability to work was largely due to physical problems, rather than depression. In addition, the Veteran's marital problems and familial problems were partly due to his physical problems as well as depression. The Veteran had no friends. He reported no interests, but attended school. He reported failing classes due to lack of focus and inability to receive appropriate help from mental health clinicians, yet often approached treatment passively and refused recommended interventions. He seemed able to manage basic and functional activities of daily living within the bounds of his physical capabilities. As such, the examiner opined that there was social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with routine behavior, self care and normal conversation due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (names, directions, and recent events). The examiner added a proviso that this level of disability could be somewhat overstated due to over endorsement of symptoms. The examiner indicated that the Veteran's wife handled the family's funds, which seemed to work well for them, but that if the Veteran's social situation changed, it would be prudent to consider appointment of a fiduciary. The Board has carefully considered the Veteran's pleadings regarding his symptoms, which include experiences with panic attacks, irritability, nightmares, anxiety, and depression, and his assertion that he is entitled to an increased rating. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which the disability is evaluated. After considering the totality of the record, the Board finds the evidence supports a 50 percent disability rating throughout the course of this appeal, and no higher for the Veteran's depressive disorder with anxiety. The evidence demonstrates that the Veteran has impairment due to such symptoms as nightmares, flattened affect, anxiety, depression, difficulty sleeping, and panic attacks. He has also competently and credibly reported that he experiences irritability, panic attacks, and has occasionally thought of suicide. He reported familial difficulties, such as conflict with his wife and distance from his children. Finally, he has been assigned GAF scores as low as 51, with the lower scores indicative of moderate symptoms. Although the Veteran experienced some variation in symptomatology, his symptoms more nearly approximate those associated with a 50 percent rating. Though he does not meet all the criteria for a 50 percent rating, his symptomatology reflects many of the criteria. Thus, in an effort to properly rate this Veteran, the Board resolves all reasonable doubt in the Veteran's favor and finds that he is entitled to a 50 percent rating for his PTSD. With respect to whether the Veteran is entitled to a rating in excess of 50 percent for his depressive disorder, he has not demonstrated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms as obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The Board finds the preponderance of the evidence to be against a 70 percent rating. The Veteran has denied homicidal thoughts. Although he has endorsed suicidal ideation, he has indicated no intent to act. He has had no legal difficulties other than those related to inability to pay child support. He has denied any obsessive or compulsive rituals which interfere with routine activities, and his speech has not been intermittently illogical, obscure, or irrelevant at any time of record. Although he experiences several panic attacks weekly and depression, he has not reported near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. He has not reported impaired impulse control (such as unprovoked irritability with periods of violence). He has been oriented at all times of record (although most recently within a few days of the date and a nearby city), with no bouts of delusional or psychotic thinking. Although the Veteran has reported experiencing auditory and visual hallucinations, the examiner has indicated that the description was more consistent with thoughts, and that there was a noticeable element of exaggeration in the Veteran's endorsement of all symptoms. His personal appearance and hygiene have also been within normal limits. Although he has denied significant social interaction, he is married, albeit there is marital conflict, and with several children, one of whom is in the home. Overall, the preponderance of the evidence is against a finding of social and occupational impairment with deficiencies in most areas, as would warrant a 70 percent rating. The Board has considered whether to issue staged ratings, but finds them not appropriate under the circumstances. With regard to extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's symptomatology, to include nightmares, depression, irritability, panic attacks, and anxiety is adequately contemplated by the rating schedule for mental health disorder. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Overall, the evidence is at least in balance as to whether a rating of 50 percent is warranted for the Veteran's depressive disorder with anxiety; however, the preponderance of the evidence is against a rating of 70 percent. The benefit-of-the-doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107(b) ; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER A rating in excess of 20 percent for degenerative disc disease at L5 prior to November 5, 2009 is denied. A rating in excess of 40 percent for degenerative disc disease at L5 from November 5, 2009 is denied. A rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. A rating of 20 percent, but no higher, for right lower extremity radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. A rating of 50 percent, but no higher, for the Veteran's depressive disorder with anxiety is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran contends that he is entitled to service connection for GERD, also claimed as acid reflux, to include as secondary to degenerative disc disease at L5. Specifically, he has suggested that the medications, to include pain medication and anti-inflammatories that he takes for his back cause or worsen his stomach issues. Service treatment records show that the Veteran had diarrhea in June 1998, and was assessed with acute gastroenteritis in August 1998 when he experienced vomiting and loose bowels. Treatment note from October 1998 assessed gastroenteritis when the Veteran was again seen for nausea, vomiting and diarrhea. He reported experiencing continuous stomach pain in March 1999, and was again assessed as having acute gastroenteritis in June 1999. Private medical records show that in June 2007 his history of digestive issues was noted, and he was assessed as having GERD. In August 2009 he reported that his acid reflux and ulcer were secondary to his degenerative disc disease and radiculopathy, to include the medications that he took for these disabilities. He reported that he experienced constant stomach pains and discomfort, nausea, vomiting, and chest pain due to acid reflux. He indicated that he had been treated for acid reflux, and to rule out a heart attack. He reported that he was on a restricted diet and medications to help him with symptoms related to his acid reflux. The Veteran was afforded a March 2011 VA examination for esophagus/hiatal hernia, and GERD. The Veteran reported problems with reflux in service, although he did not recall the specific date of onset. He reported noting symptoms of heart burn in service. He indicated that he continued to experienced episodes of daily heart burn and that acid and food came up his throat at night causing him to experience a choking sensation that awoke him. He experienced intermittent episodes of bilateral upper arm and shoulder discomfort associated with reflux. He stated that symptoms were triggered by his medications and certain foods. He indicated that he had dark stools a few times a month, and occasional episodes of blood in his stool, with the last episode the previous year. Following examination, the examiner opined that the Veteran's GERD was less likely than not caused by or related to his service, or his in-service treatment for gastroenteritis. The examiner noted that the Veteran was currently service connected for lumbar spine degenerative disc disease. The Veteran reported stomach irritation with Percocet in March 2009, and reported taking over-the-counter ibuprofen for pain. The examiner indicated that the current upper GI did not show evidence of GERD, ulcers or gastritis. Although the Veteran reported symptoms of GERD, current upper GI examination did not show any evidence of reflux or ulcerations, and therefore, the examiner determined it was less likely than not that the Veteran's service-connected lumbar spine disc disease medications aggravated or increased the disability manifestations or symptoms of GERD. In May 2011 the Veteran reported that he took his stomach medications regularly, but continued to experience stomach issues. In September 2012 the Veteran was assessed as having refractory GERD, dyspepsia. H. Pylori testing was negative. In light, of the Veteran's diagnoses of GERD, the Board finds that an addendum opinion should be provided accounting for the Veteran's disability during the course of the claim, even if not apparent at the VA examination. In addition, the examiner's opinion regarding a theory of entitlement based on the Veteran's service-connected lumbar spine disability and related medication use, addresses the aggravation factor, but does not address the causation factor. As such, a VA addendum opinion is necessary to determine whether degenerative disc disease, to include medication usage, at least as likely as not caused GERD. Accordingly, the case is REMANDED for the following actions: 1. Obtain an addendum opinion from the March 2011 VA examiner, if available. Provide the claims folder, and access to Virtual VA, as needed. Following record review, and examination if deemed necessary by the examiner, provide an opinion regarding whether the Veteran's GERD is related to his service, or caused or worsened by service-connected degenerative disc disease, to include related medication usage. Any opinion provided should be supported by rationale. If that examiner is unavailable, or additional examination is needed to obtain a response, such examination should be scheduled. 2. After completion of the above, readjudicate the claim. If the issue remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs