Citation Nr: 1337894 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 05-36 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial evaluation higher than 30 percent disabling for generalized anxiety disorder, major depressive disorder, and panic disorder with agoraphobia. 2. Entitlement to an initial evaluation higher than 10 percent disabling for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine; and intermittent bilateral lower extremity radiculopathy prior to June 19, 2008. 3. Entitlement to an initial evaluation higher than 20 percent disabling for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine; and intermittent bilateral lower extremity radiculopathy since June 19, 2008. 4. Entitlement to special monthly compensation based on loss of use of a creative organ. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for disabilities manifested by chronic fatigue, fibromyalgia, and irritable bowel syndrome, including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: David Huffman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active duty service from March 1997 to August 1997 and from February 2003 to May 2004. The case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2011, the Veteran and his spouse testified at a Board video conference hearing that was held before the undersigned Veterans Law Judge. A copy of the transcript is associated with the claims file. This case was remanded by the Board for further development in February 2012. The Board notes that it has reviewed the Virtual VA and VBMS paperless claims processing systems and has included evidence pertinent to the appeal in the decision therein. The issues of entitlement to special monthly compensation based on loss of use of a creative organ, and entitlement to service connection for bilateral hearing loss, tinnitus, sleep apnea, and disabilities manifested by chronic fatigue, fibromyalgia, and irritable bowel syndrome, including as due to an undiagnosed illness are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Generalized anxiety disorder, major depressive disorder, and panic disorder with agoraphobia is manifested by occupational and social impairment with reduced reliability and productivity. 2. Prior to June 19, 2008, spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees and there was no showing of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. Since June 19, 2008, spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine is manifested by the functional equivalent of flexion to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent disabling for generalized anxiety disorder, major depressive disorder, and panic disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2013); 38 C.F.R. § 4.130 Diagnostic Codes (DC) 9400-9434 (2013). 2. Prior to June 19, 2008, the criteria for an initial evaluation higher than 10 percent disabling for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239. 3. Since June 19, 2008, the criteria for an initial evaluation of 40 percent disabling for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. The Board notes that the Veteran is challenging the disability evaluation and effective date assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA's duty to notify in this case has been satisfied regarding the issues herein decided. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. In the February 2012 remand, the Board instructed the RO to take the necessary steps to obtain treatment records from the Veteran's private chiropractor in West Virginia. The RO sent the Veteran correspondence in October 2012 asking that he provide a VA Form 21-4142 so that those records could be obtained. The records were requested in December 2012, however, no response has been received to date. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. ANALYSIS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 . Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 , 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of staged ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. Given that the Veteran has appealed the initial evaluations assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. Fenderson. Generalized Anxiety Disorder The Veteran's generalized anxiety disorder, major depressive disorder, and panic disorder with agoraphobia is evaluated pursuant 38 C.F.R. § 4.130 Diagnostic Code 9400-9434, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. The General Rating Formula provides a 30 percent evaluation when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31 to 40 is assigned where there is 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 younger children, is defiant at home, and is failing at school). Id. A score of 41-50 is assigned where there are 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). Id. A score of 51-60 is assigned where there are 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, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are 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, has some meaningful interpersonal relationships. Id. Based on the evidence presented, the Board finds that a rating of 50 percent for generalized anxiety disorder, major depressive disorder, and panic disorder with agoraphobia is warranted as the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 50 percent rating than that contemplated by a 30 percent rating under Diagnostic Code 9434. A majority of the type of criteria contemplated for a 50 percent rating under Code 9434 have been demonstrated. In this regard, during his various examinations, correspondence and hearings, the Veteran reported symptoms of irritability, anxiety, depressed mood, panic, concentration issues, sleep problems, self-isolation, avoidance, panic attacks, memory loss, and difficulty in establishing and maintaining effective work and social relationships. He has had intermittent periods of employment and expressed that he has no friends. In the February 2006 private evaluation, a GAF score of 45 was assigned. The examiner found that the Veteran had serious impairment in several areas. The Veteran was described as severely depressed and in constant pain. His speech was pressured when describing his pain and emotional difficulties. He described a sense of worthlessness, quick temper, sleep difficulties and agitation. He also described depressed mood and affect. A GAF score of 39 was rendered during the April 2010 private evaluation. He related having some frustration and endorsed symptoms of anxiety, avoidance and some loss of memory at that time. In the February 2012 private evaluation a GAF score of 45 was assigned. He endorsed symptoms of recurrent distressing memories, increased anxiety, difficulty sleeping, panic, avoidance, sleep problems, irritability, outbursts of anger, hyperviligance and exaggerated startle response according to the examiner. The symptoms and findings described above warrant a 50 percent evaluation. The Board finds, however, that an evaluation higher than 50 percent is not warranted. To that end, the evidence shows that the Veteran has been married over 12 years and has two children. Despite some marital issues, he remains married and reports a fair to good relationship with his wife. He denies having any friends but states that he has support in his wife and father. He enjoys fishing and spending time with his sons. He also volunteers with the Fire Department. During his VA and private examinations, he was alert, oriented, and with normal speech and thought processes. He denied suicidal and/or homicidal ideations. The evidence is also devoid of a showing of thought disorder, hallucinations, delusions, obsessions and/or compulsions. Although he was assigned a GAF score of 45 during the February 2006 private evaluation, at that time he was also described as cooperative and without delusions, illusions or hallucinations. His memory was intact and ability to calculate and abstract were intact. The April 2010 private evaluation revealed he was well groomed, pleasant and had clear speech. His thought process was coherent and relevant without digressions or disturbances of logic, his speech was appropriate and without evidence of unusual ideation, and there were no obvious indications of psychotic distortions. Also, he denied suicidal ideations and scored within the normal range of cognitive function. In the February 2012 private evaluation he was again alert, fully oriented and generally cooperative. His speech was relevant, thought processes logical, and intellectual functioning was within the average range. He denied mania and psychosis. It is also noted that the November 2012 VA examiner assigned the Veteran a GAF score of 55 and found that he had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, normal routine behavior, self-care and conversation. The Board recognizes that the Veteran has had periods of unemployment during this appeal. He, nevertheless, attended school full time at some point during this time and is currently employed with a communications company. While it is shown that he has occasional loss of efficiency and at times an inability to perform work, occupational impairment is already contemplated in the 50 percent rating criteria. It is also notable that the Veteran's GAF scores ranged from 39 to 75 during this appeal. He was assigned GAF scores of 39 and 45 from the private examiners which are indicative of serious impairment to some impairment in reality testing or communication. His GAF scores from the VA examiners ranged from 55 to 75 which indicates mild to moderate symptoms. The Board finds that the GAF scores rendered, although varying in range, supports no more than a 50 percent evaluation. Here, the objective evidence to include the findings of the private examiners establishes that the appellant does not have impairment in reality testing. At most, the evidence demonstrates serious symptoms. i.e. serious impairment in social or occupational functioning. The Board finds that the 50 percent rating is consistent with the Veteran's symptoms and the GAF scores assigned. The Veteran has been competent and credible when reporting his symptoms. The Board acknowledges his reports and pleadings. His reports of symptomatology, however, have been considered and contemplated in the 50 percent evaluation. Although the Veteran reports symptoms to include irritability, anxiety, depressed mood, panic, concentration issues, sleep problems, self-isolation, avoidance, panic attacks, mild memory loss, and difficulty in establishing and maintain effective work and social relationships, such findings do not warrant a 70 percent evaluation when all the other manifestations are considered. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In sum, the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 50 percent rating and no more. Stated differently, the medical and lay evidence as well as the GAF scores establish that there is occupational and social impairment with reduced reliability and productivity. The manifestations, however, even when accepted as credible, do not establish occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Lumbar Spine The Veteran appeals the denial of an initial rating higher than 10 percent for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine; and intermittent bilateral lower extremity radiculopathy prior to June 19, 2008 and a rating higher than 20 percent disabling thereafter. The Veteran's disability is rated under Diagnostic Code 5239. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2013). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 (2013) are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under the general rating formula for diseases and injuries of the spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for 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. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 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; and 100 percent for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 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 habits, 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. Based on the evidence presented, the Board finds no basis for assigning a rating higher than 10 percent for the Veteran's lumbar spine disability prior to June 19, 2008. In this regard, the Veteran injured his back while unloading luggage in April 2003. He had full range of motion without pain and no atrophy in September 2003. In November 2003, an impression was given of L5 spondylolysis and spondylolisthesis. The lumbar spine was normal in height and contour at that time and there was no showing of scoliosis. He was found to have a normal gait in May 2004 and was able to flex to 90 degrees and extend to 35 degrees without pain, weakness, lack of endurance, fatigue or incoordination further impacting range of motion. The overall record for this period of time reflects that the Veteran's lumbar spine disability was manifested by forward flexion above 60 degrees. Additionally, his combined range of motion of the thoracolumbar spine was shown to be much greater than 120 degrees, and muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown during this period of time. As such, the criteria for a rating higher than 10 percent for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine prior to June 19, 2008 were not met. In reaching this conclusion, the Board has considered the requirements of 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Neither the lay or medical evidence, however, reflects that the requirements for a higher rating were met during the period addressed above. To the extent that the Veteran reported lumbar pain during this time, the Board notes that the 10 percent rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. With regard to neurologic abnormalities, the Board notes that the Veteran reported radiation of pain and numbness. For claims in which symptoms of a neurologic defect have been claimed or found, 38 C.F.R. § 4.120 dictates that neurological conditions and convulsive disorders are to be rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, or severe incomplete paralysis, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123; 38 C.F.R. § 4.124. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In a February 2012 Board decision, the Veteran was granted a separate disability rating for right and left lower extremity sciatica. In a June 2012 rating decision, he was assigned a separate disability rating for right lower extremity sciatica with an evaluation of 40 percent effective May 26, 2004 and a separate disability rating for left lower extremity sciatica with an evaluation of 20 percent effective May 26, 2004. He did not express disagreement with the decision. As such, no further discussion is needed on this issue. Regarding other neurological complications, although he has bilateral lower extremity lumbar radiculopathy, during this time his manifestations did not warrant a separate compensable rating. To that end, EMG testing revealed essentially normal sensory, motor and reflex findings in September 2003. In May 2004, neurological examination revealed sensation was intact, coordination normal and motor function was 5/5 in all muscle groups. Deep tendon reflexes were brisk and equal. While the evidence demonstrates complaints of numbness and radiation of pain, it does not demonstrate any significant lower extremity radiculopathy impairment resulting therefrom during this time. In reaching this determination, the Board has considered the guidance established in section 4.120, 4.123 and 4.124. However, when rated by analogy, a separate compensable evaluation is not warranted for any other neurological complications during this time. The Veteran also appeals the denial of a rating higher than 20 percent disabling for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine since June 19, 2008. To warrant a higher rating, the evidence must show forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A review of the record discloses that a higher rating is warranted for this period of time as the Veteran's remaining functional forward flexion of the thoracolumbar spine is 30 degrees or less. In this regard, the June 2008 VA examination revealed lumbar spine flexion to 50 degrees with pain and to 45 degrees with repetitive use. The April 2010 VA examination, however, revealed flexion to 30 degrees with objective evidence of pain on motion and following repetitive motion. These findings warrant a 40 percent rating as flexion to 30 degrees or less is shown by the record. Although the Board finds that the criteria for a 40 percent rating has been met, a rating higher than 40 percent is not warranted as the evidence is devoid of a showing of unfavorable ankylosis of the entire thoracolumbar spine. For definitional purposes, ankylosis is a fixation of the joint. Examination reveals the functional equivalent of forward flexion to 30 degrees. Given the ranges of motion reported above, a higher rating is not warranted on this basis. Regarding neurological manifestations, as noted the Veteran is separately rated for right and left lower extremity sciatica. During this period of time, the Veteran denied bowel and/or bladder dysfunction but reported leg or foot weakness, erectile dysfunction, numbness and paresthesias. The evidence is devoid of a showing that his erectile dysfunction is attributable to the lumbar spine. The April 2010 VA examiner was unsure of the etiology of the Veteran's erectile dysfunction but stated it was possibly related to pain meds and/or blood pressure medications. During the November 2012 VA examination, it was opined that his erectile dysfunction was as likely as not attributable to his hypogonadism. The Board is mindful of the Veteran's complaints of numbness, weakness and paresthesias, and his intermittent bilateral lower extremity lumbar radiculopathy. His manifestations, however, do not warrant a separate compensable rating. To that end, the June 2008 examination revealed normal motor, muscle tone and sensory findings. There was also no atrophy on examination. EMG studies in April 2010 showed normal findings and no evidence of neuropathy, myopathy or radiculopathy in the lower extremities. These findings are against a separate compensable rating for lower extremity radiculopathy during this period of time as well. No other neurological impairments have been identified. The Board previously granted service connection for sciatica of both lower extremities. The Board has also considered whether the Veteran's service- connected lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes for both periods of time. The Veteran, however, has not reported any incapacitating episodes. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. ALL CLAIMS The Board finds that the Veteran has presented competent and credible testimony regarding the nature and extent of his disabilities to include his reports of back pain, functional limitations and psychiatric symptoms. Except where otherwise noted, the Board has afforded greater probative value to the VA examinations than the Veteran's reports of symptomatology. The examinations were conducted by medical professionals with the expertise to comment and opine on the matters at issue. The examiners reviewed the records, which included the Veteran's contentions, and conducted a complete physical examination. The medical findings of record are also well reasoned and supported by the historical record. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disabilities. Accordingly, the claims are denied. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The evidence shows some occupational impairment due to the Veteran's disabilities. The objective and subjective evidence, however, does not demonstrate that the Veteran is unemployable as a result of his disabilities. Therefore, any inferred TDIU claim is inapplicable in this case. Regarding referral for extraschedular consideration, consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the Veteran has not required frequent periods of hospitalization for his disabilities and that the manifestations of his disabilities are contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disabilities would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. ORDER Entitlement to an initial evaluation of 50 percent disabling for generalized anxiety disorder, major depressive disorder, and panic disorder with agoraphobia is granted. Entitlement to an initial evaluation higher than 10 percent disabling for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine; and intermittent bilateral lower extremity radiculopathy prior to June 19, 2008 is denied. Entitlement to an initial evaluation of 40 percent for spondylolisthesis L5 with degenerative disc space narrowing, bilateral facet arthropathy and spina bifida occulta L5, lumbar spine; and intermittent bilateral lower extremity radiculopathy, since June 19, 2008 is granted. REMAND The Veteran appeals the denial of special monthly compensation based on loss of use of a creative organ. When this issue was before the Board in February 2012, it was determined that further development was needed. Specifically, the RO was to "afford the Veteran an appropriate VA examination by a physician." While the Veteran was afforded a VA examination in November 2012, the examination was conducted by a physician's assistant not a physician as requested. Furthermore, the Board notes that while the examiner addressed some of the questions presented, she did not address all the questions asked by the Board to include whether it is as likely as not (50 percent or greater probability) that the Veteran's service-connected low back, psychiatric and hypertension disabilities aggravate his erectile dysfunction. The Court has held that a remand by either the Court or the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remand directives set forth in February 2012 have not been fully satisfied, another remand is warranted. The Veteran also appeals the denial of service connection for bilateral hearing loss, tinnitus, sleep apnea, and disabilities manifested by chronic fatigue, fibromyalgia, and irritable bowel syndrome, including as due to an undiagnosed illness. In his VA Form 9 Substantive Appeal received by the RO in May 2013, the Veteran expressed that he wanted a hearing at the local RO before a member of the Board. The Board finds that the substantive appeal was timely filed. The Veteran has not withdrawn his request for a hearing. In light of the request for a hearing, a remand is warranted to afford the Veteran a hearing before a member of the Board. Accordingly, the case is REMANDED for the following action: 1. The RO should afford the Veteran an appropriate VA examination by a physician to determine whether the Veteran has loss of use of creative organ due to his service-connected hypertension, including his medication. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the findings reported in detail. Based on a review claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion as to whether it is as likely as not (50 percent or greater probability) that the Veteran has loss of use of a creative organ due to his service-connected hypertension, including his medication. Moreover, if the Veteran is now taking any additional medications for his service-connected low back and psychiatric disabilities that were not addressed in the August 2008 VA examination and May 2010 addendum, the examiner should also opine as to whether it is as likely as not (50 percent or greater probability) that the Veteran has loss of use of a creative organ due to these medications. Lastly, the examiner should also opine as to whether it is as likely as not (50 percent or greater probability) that the Veteran's service-connected low back, psychiatric and hypertension disabilities aggravate his erectile dysfunction. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. 2. The RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 3. Thereafter, the RO should review the expanded record and readjudicate the issue on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 4. Schedule the Veteran for a travel board hearing at the earliest opportunity in accordance with applicable procedures for the issues of entitlement to service connection for bilateral hearing loss, tinnitus, sleep apnea, and disabilities manifested by chronic fatigue, fibromyalgia, and irritable bowel syndrome, including as due to an undiagnosed illness. The RO must notify the Veteran and his representative of the date and time thereof. If the appellant wishes to withdraw his request for the hearing, that should be done by written document submitted to the RO. 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. 2012). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs