Citation Nr: 1619077 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 10-10 433 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for the service-connected psychiatric disability. 2. Entitlement to assignment of separate compensable disability ratings for neurological abnormalities of the bilateral lower extremities associated with the service-connected lumbar spine disability. 3. Entitlement to service connection for meralgia paresthetica of the bilateral lower extremities. 4. Entitlement to service connection for a bilateral hip disorder. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Esq. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is a veteran (the Veteran) who had active duty service from February 1984 to November 1994. This appeal comes before the Board of Veterans' Appeals (Board) from September 2008, September 2009, and April 2010, rating decisions of the RO in St. Petersburg, Florida. The Veteran initially requested a Board hearing; however, in a statement received in May 2011, the Veteran's representative indicated that the Veteran wished to withdraw the hearing request. In February 2012, the Board remanded the issues addressing the rating for the psychiatric disability and assignment of compensable ratings for lower extremity neurological abnormalities, as well as the TDIU issue, for additional evidentiary development. Those matters have since been returned to the Board for further appellate action and the Board will further address the results of this development below. The Board also denied entitlement to a disability rating in excess of 40 percent for the lumbar spine disability, an issue on appeal at that time. The Board's decision with respect to that matter is final. See 38 C.F.R. § 20.1100 (2015). The issues of entitlement to service connection for meralgia paresthetica of the bilateral lower extremities, entitlement to service connection for a bilateral hip disorder, and TDIU entitlement, are addressed in the REMAND below and are therein REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran and his representative if further action is required. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected psychiatric disability has been manifested by 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, or mild memory loss (such as forgetting names, directions, recent events). 2. There are no neurological abnormalities of the lower extremities associated with the service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for the service-connected psychiatric disability are met; the criteria for a rating higher than 30 percent have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2015). 2. The criteria for a separate compensable rating for neurological abnormalities associated with the right lower extremity are not met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2015). 3. The criteria for a separate compensable rating for neurological abnormalities associated with the left lower extremity are not met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability Rating Claims Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Schedular Rating-Psychiatric Disability In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms and the veteran's capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner's assessment of the level of disability at the moment of 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. See 38 C.F.R. § 4.126. The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 10 percent rating is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted for PTSD if 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if it is productive of 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 compete 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, may be assigned 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); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating contemplates 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. 38 C.F.R. 4.130, Diagnostic Code 9411. The Global Assessment of Functioning (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 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). The Board notes initially that the GAF scores assigned in this case have generally been in the range of 61 to 70. A VA Mental Health Note of August 25, 2009, reveals a score of 65, as do a November 8, 2011, Psychiatric Consult, a May 18, 2012, Psychiatric Progress Note, and a September 4, 2012, Physical Medicine Rehab Note. A GAF score of 61-70 indicates 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. A September 17, 2008, Social Security Disability Evaluation assigned a GAF score of 60, and a December 24, 2008, VA Mental Health Note assigned a score of 58. GAF scores in the range of 51-60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers). Thus, the GAF scores assigned indicate primarily mild symptoms which have at times increased to moderate symptoms. Words such as "mild" and "moderate" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2015). It should also be noted that use of terminology such as "mild" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2015). The September 17, 2008, Social Security Disability Evaluation notes that the Veteran's symptoms include poor sleep, anhedonia, fatigue, excessive feelings of guilt, poor concentration, decreased appetite, feelings of helplessness and hopelessness, psychomotor retardation, and past episodes of suicidal ideation. At the time of the examination, the Veteran denied suicidal or homicidal ideation. He was alert and oriented to time, place, and person. He was casually attired and demonstrated good basic functioning in grooming and hygiene. Overall, his behavior was cooperative and appropriate. His speech was logical and coherent, and of a normal rate and tone. No errors in articulation were noted. Attention and concentration were within normal limits. He denied any symptoms indicative of psychosis, including auditory and visual hallucinations, as well as ideas of reference. He demonstrated no flight of ideas or loose associations. Thought processes were described as abstract. There was no gross impairment in memory functioning. The Veteran was able to recall three out of three words after a two-minute interval and could discuss details from his recent and remote past. The examiner found that his functional ability was significantly impaired based on his episodes of depression, that his social functioning was poor based on reports of limited interactions with his same age peer group, and that he would require assistance in managing his funds. A VA Mental Health Assessment of August 25, 2009, reveals complaint of symptoms including feelings of isolation, depressed mood, distressing dreams, poor sleep (reported as difficulty getting to sleep and staying asleep secondary to chronic pain), past passive suicidal ideations (although he denied an intent, plan, or current ideation), and feeling helpless, hopeless, and worthless. The Veteran reported that his relationship with wife had never been good, but his relationship with his children was "the best in the world." He described himself as "like a hermit" though he generally gets along with other people. The frequency and duration of depression was described by the Veteran as being every day during times when he can't do anything. The severity of the Veteran's depression was assessed as mild to moderate. His mood at the time of the examination was assessed as dysphoric. His affect was full; he was oriented to person, time, and place; and his thought process and content were unremarkable. There were no delusions, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, suicidal ideation, or homicidal ideation. The Veteran's impulse control was good and there were no episodes of violence. The Veteran was found to be able to maintain minimum personal hygiene and there was no problem with activities of daily life. The Veteran's memory was normal for remote, recent, and intermediate recall. The Veteran was administered the MMPI-2 by the August 2009 examiner, and the degree of psychopathology he reported was noted as unusual, even in a clinical population. The examiner explained that, while these results may represent a cry for help, it is also quite likely that there was some intentional exaggeration of the current symptom picture, possibly for secondary gain issues. Thus clinical interpretation of the results was not conducted by the examiner. The examiner found that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning to any degree. Affidavits submitted by the Veteran in April 2011 are identified as being written by his son, daughter, and friend. These generally attest to physical limitations, but also to depression, trouble sleeping, lack of desire to go places, poor hygiene, irritability, confusion, and frustration. His daughter noted that the Veteran has talked about suicide. His son and his friend described the Veteran's depression as severe. A November 8, 2011, Psychiatric Consult reveals that the Veteran denied current persistent depressive symptoms. He reported that, two or three times per month, he might feel sad. Otherwise, his medication was helping him. His main concern at the time of the examination was insomnia. The Veteran denied aggressiveness or ideas of harming himself or others. He denied current persistent daily severe depressive symptoms, hallucinations, manic/hypomanic symptoms, panic attacks, or suicidal ideas/plans/prior gestures/attempts. The Veteran described as his stressors problems related to the social environment, and economic problems, but reported no problems with his primary support group, educational problems, occupational problems, housing problems, problems with access to health care services, problems related to interaction with the legal system/crime, or other psychosocial and environmental problems. On examination, the Veteran was appropriately dressed and groomed; he had spontaneous vocal speech; his mood was euthymic; his affect was broad; his mood and affect were appropriate; he denied any homicidal thoughts, plans, or ideas; he denied any suicidal thoughts, plans, or ideas; and, he denied delusional thoughts. The Veteran was found to be coherent, relevant, and logical. He reported no panic attacks, no obsessions or compulsions, no disorders of perception, no visual hallucinations, and no auditory hallucinations. He was alert and fully oriented to time, place, and person. His memory and concentration were preserved and his judgment was fair. The examiner found that major depression was in remission with medications. A September 4, 2012, Physical Medicine Rehab Note reveals symptoms including sadness, anger, anxiety, irritability, frustration, isolation, flashbacks, nightmares, and insomnia. Upon review of the evidence in this case, the Board finds that the Veteran's level of social and occupational impairment has not remained constant, but has ranged from being in remission, to mild impairment, and to occasional moderate impairment. While the Board is certainly cognizant of the finding of one examiner that the Veteran's responses indicated exaggeration of symptoms, and of the unwillingness of that examiner to attribute any occupational or social impairment to the Veteran's depressive disorder, the Board has balanced this finding against the Veteran's account of experiencing depression, sleep impairment, and social isolation, as well as the accounts of members of his family and friend describing similar symptoms in addition to confusion and irritability. Regarding irritability, the Veteran has also described mood swings and that his family "is sort of afraid of me due to my mood changes". Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). The accounts of the Veteran and his family members and friend are competent with respect to describing his behavior and his observable symptoms. After balancing the conflicting evidence, the Board finds that the Veteran's depressive disorder has been productive of occasional occupational and social impairment to some degree throughout the period on appeal. The Board notes that the essential difference between the criteria for the 10 percent rating and the 30 percent rating is that, while both contemplate occasional symptoms rather than constant symptoms, both the frequency and duration of periods of impairment are less with the 10 percent rating criteria. While the word "transient" is not defined in the rating schedule and has no specific medical definition, it is generally defined as something passing especially quickly into and out of existence. In contrast, "occasional" and "intermittent," as used for the 30 percent rating, are respectively defined as happening or done sometimes but not often, and also as not constant or steady. See Merriam-Webster.com. Merriam-Webster, n.d. Web. 3 Mar. 2016. In this case, the Board finds that the Veteran's symptoms have not been productive of occupational and/or social impairment on a constant basis as they have at times been in remission. However, they have been productive of occupational and/or social impairment on a more frequent basis than is contemplated by "transient" symptoms causing impairment only during periods of significant stress. Moreover, the Veteran's disability is consistently shown to include symptoms of the type and degree contemplated as a depressed mood, chronic sleep impairment, social withdrawal, and anxiety. There is also some suggestion of periods of confusion, which might be of the type and degree contemplated as forgetting names, directions, recent events. The Board also notes that, while the GAF scores have generally reflected mild impairment, there are two scores in the range of moderate impairment, supporting a finding that the Veteran's impairment is occasionally to a moderate degree. On balance, this demonstrates that, while moderate impairment is not consistently shown, the Veteran's overall symptomatology is more than mild. After balancing the evidence, the Board concludes that a 30 percent rating is warranted for the entire period on appeal. As the criteria specifically contemplate a condition which occasionally waxes and wanes, as demonstrated here, the Board finds that a staged rating is not appropriate notwithstanding the fact that the Veteran's psychiatric disability has been described by one examiner as being in remission. However, the Board finds that symptomatology of the type and degree contemplated for a 50 percent rating is not shown or more nearly approximated than are the criteria for a 30 percent rating. As discussed above, the essential distinction between the 30 percent and 50 percent rating appears to be centered on whether interference with occupational function is intermittent or constant. The criteria for the 30 percent rating include temporal qualifiers such as "occasional" and "intermittent" whereas the criteria for a 50 percent rating do not. Rather, they describe a more consistent or ongoing reduced reliability and productivity. Here, the finding of depression in remission in November 2011 as well as a negative depression screen in March 2014, reveal that the Veteran's depression is not constant, but is more accurately described as occasional or intermittent. The Veteran has also not demonstrated clinically symptoms like or similar to a 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 compete tasks), impaired judgment, or impaired abstract thinking. Regarding disturbances of motivation and mood, such symptoms have only been occasional and are not ongoing. Regarding a difficulty in establishing and maintaining effective work and social relationships, the evidence certainly establishes that the Veteran had a negative relationship with his wife, from whom he is now separated. However, it also demonstrates that he has maintained largely effective relationships with his children and a friend who have submitted affidavits in his behalf. He also described that he got along with people well although he was socially withdrawn and living like a hermit. The Board notes that the presence of symptomatology like or similar to this description has been used to elevate his disability rating to the 30 percent level despite the lack of a clear showing of entitlement at that level. In essence, the Board has found that the Veteran's symptoms more nearly approximate the 30 percent criteria than they do the 10 percent criteria, in part due to the presence of limited symptoms at the 50 percent level. The Board finds that none of the criteria for a rating of 70 percent or 100 percent are met. There are no symptoms like or similar to current suicidal ideation (although historically reported), 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, difficulty in adapting to stressful circumstances (including work or a work-like setting), and inability to establish and maintain effective relationships. While the Veteran's family members have described poor hygiene, this evidence must be viewed in the context of consistent findings on examination that the Veteran is capable of maintaining acceptable personal hygiene and of maintaining his activities of daily living. In essence, the Board finds that episodes of poor hygiene are not inherently evidence of psychiatric impairment. The findings in the clinical reports do not relate solely to the Veteran's appearance at the examination, but to his ability to maintain hygiene and activities of daily living due to his psychiatric disability. The medical evidence appears to discount any connection between the service-connected psychiatric disability and episodes of poor hygiene. In essence, the Board's finding amounts to an attribution of symptomatology to nonservice-connected factors as opposed to the service-connected disability, which is supported by competent medical evidence. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The Veteran's representative has argued that the September 2008 evaluation provides evidence in support of a rating of 70 percent. However, other than reciting the symptomatology noted in that report, he provided no persuasive argument as to how that report suggests that the criteria for a 70 percent rating are met. The Board notes that the reference to suicidal ideation in that report was historic, and the Veteran has otherwise denied current suicidal ideation, including at the time of that evaluation. The Board acknowledges the reference in the September 2008 report to the Veteran's functional ability being "significantly" impaired due to depression. While the word "significantly" or "significant" suggests a measurable or noticeable amount or degree, it does not suggest or imply any specific amount or degree. While the word implies an effect that is noticeable, this fact is acknowledged by the Board and is established in the record by the assignment of a 30 percent rating and the corresponding description of mild to moderate depression. Also notable, the examiner assigned a GAF score of 60, which is reflective of only moderate symptoms. This is a more accurate reflection of the level of symptomatology thought to be present by the examiner than a historic reference to suicidal ideation. While a GAF score does not equate to any specific rating level, the Board finds the examples listed for the GAF range including the score of 60 to describe impairment less severe than the examples included under the 70 percent rating level. The representative has also cited several of the examples listed for the 70 percent rating. However, the presence of absence of specific examples is not determinative as these are not rating criteria. It must be demonstrated that the actual level of impairment is demonstrated. See Mauerhan, 16 Vet. App. at 442. Contrary to the representative's assertion in the February 2016 correspondence, the Veteran has not reported constant symptoms of depression. In November 2011 he denied current persistent depressive symptoms and reported that, two or three times per month, he might feel sad. That examiner found that his depression was in remission. More recently, he had a negative depression screen in March 2014. These findings are not consistent with "constant" depression. Contrary to the representative's assertion in the February 2016 correspondence, the Veteran is not unable to establish and maintain effective relationships. The evidence demonstrates that he does in fact maintain effective relationships with his children, and that he has at least one friend. Thus, he does not have symptomatology of the same degree as an "inability." The Board has found that the Veteran has symptoms of the same degree as a "difficulty" in establishing and maintaining effective work and social relationships and the Board has used symptomatology of this type and degree to increase the rating to 30 percent despite the lack of definite entitlement at that level. Contrary to the representative's assertion in the February 2016 correspondence, the evidence does not demonstrate speech that is intermittently illogical, obscure, or irrelevant. Clinically, the Veteran has consistently been described as logical and coherent. The reference cited from the statement of the Veteran's daughter that he "did not even sound like himself," does not suggest symptomatology of the type and degree contemplated for a 70 percent rating. The Board acknowledges the descriptions of the Veteran's son and friend that the Veteran is severely depressed. However, assessments of the degree of psychiatric symptomatology are essentially medical opinions. While the Veteran's son and friend are competent to describe the Veteran's observable symptoms, their assessment of his level or degree of psychiatric impairment, or of the level or degree of his depression, is not competent evidence. The competent assessments of his level of depression have been in remission, mild, and moderate, as supported by GAF scores. Regarding the 100 percent rating level, the Board finds that total occupational and social impairment is not demonstrated. There is no symptomatology like or similar to 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, or memory loss for names of close relatives, own occupation, or own name. In short, the gross impairment of behavior resulting in severe disorientation of the individual which is contemplated by the 100 percent rating criteria, is simply not evident in this case at any time. While the Board has found that the criteria for a 30 percent rating are met, this finding was based on the presence of some of the criteria from higher levels in spite of the lack of clear entitlement at the 30 percent level. The Board essentially finds that the criteria for a 30 percent rating are more nearly approximated than are those for the current 10 percent rating. See 38 C.F.R. § 4.7. The Board has also found that the criteria for a rating in excess of 30 percent are neither met nor more nearly approximated than the criteria for the 30 percent rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, with respect to any ratings in excess of 30 percent, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lower Extremity Radiculopathy Service connection is in effect for a lumbar spine disability. Pertinent law provides that any associated objective neurologic abnormalities are to be separately evaluated under an appropriate diagnostic code, including, but not limited to, bowel or bladder impairment. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Thus, it is essential that any neurological abnormalities be "associated" with the lumbar spine disability. Determining this association is an inherently medical question requiring knowledge of the causes of neurological disorders generally, and attribution of symptomatology to specific neurological disorders. The Board finds, initially, that the remanded issue of entitlement to service connection for meralgia paresthetica of the bilateral lower extremities is not intertwined with this issue, which deals exclusively with the existence of neurological abnormalities associated with the service-connected lumbar spine disability. The competent medical evidence distinguishes the Veteran's meralgia paresthetica from the lumbar disc pathology as an independent neurological condition. Accordingly, the Board's decision with respect to this issue does not prejudice the Veteran's ability to pursue a claim of entitlement to service connection for meralgia paresthetica. Indeed, the Veteran does not currently contend that his meralgia paresthetica is associated with his lumbar spine disability. In his January 2015 Notice of Disagreement, he stated "it is not caused by my lumbar spine disabilities and it is not related to any other terms provided by the VA over the years to describe Radiculopathy, Sciatica or DJD; I have had this condition for more than 20 years and it started while on active duty." Prior to an August 2013 VA examination, the medical evidence generally attributed the Veteran's complaint of primarily left lower extremity pain and tingling to nerve impingement caused by the service-connected lumbar spine disorder despite repeated findings that imaging results did not demonstrate any significant nerve impingement. Notably May 2008 MRI findings revealed disc bulging and herniation, but no significant foraminal or canal narrowing or stenosis at any level. A May 27, 2008, examination by J.L. Joy, MD, interpreted those results as showing no evidence of severe nerve root compression. An April 10, 2009, MRI was noted as stable in comparison to the May 2008 MRI, with no disc herniations or significant/severe spinal stenosis identified. A September 27, 2012, Pharmacy Note interpreted the 2009 MRI as showing no significant abnormalities and noted that the Veteran displayed symptoms of a different disorder, meralgia paresthetica. A November 28, 2012, Surgical Consultation interpreted September 2012 MRI results as "very innocent study to explain the severity of the pain." The examiner noted "I do not see a lesion for surgical recommendation." Indeed, surgery was not recommended. Despite this early attribution of symptoms to the lumbar spine disability, it was the opinion of the August 2013 VA examiner that the Veteran's lower extremity neurological impairment was not the result of lumbar disc impingement or radiculopathy, but was due to the unrelated condition of left lateral meralgia paresthetica, which was found to be less likely than not caused by or result from Veteran's lumbar spine disability. The examiner found no objective evidence of lumbar radiculopathy. The rationale was that the Veteran's clinical history and symptoms (left lateral thigh numbness and burning-like pain sensation) were compatible with the diagnosis of left lateral meralgia paresthetica, described as a painful mononeuropathy of the lateral femoral cutaneous nerve, commonly due to focal entrapment of this nerve as it passes through the inguinal ligament. The examiner explained that, with such entrapment, pain may be acute and radiate into the ribcage, groin, thigh, and knee. According to the examiner, the lateral femoral cutaneous nerve is responsible for the sensation of the anterolateral thigh. It is a purely sensory nerve and has no motor component. The condition typically occurs in isolation and clinical history and examination are usually sufficient for making the diagnosis. As discussed above, the Board acknowledges that, in conflict with the August 2013 opinion, there are numerous notations in the clinical record of lumbar radiculopathy and sciatica, as well as intervertebral disc syndrome and degenerative disc disease. In addition, the Board acknowledges a January 9, 2009, Nerve Conduction Velocities test which was interpreted as showing old, chronic, left S1 radiculopathy. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The Board notes that, without exception, the findings attributing neurological symptoms in the lower extremities to the lumbar spine disability do not attempt to distinguish between various diagnoses such as radiculopathy and left lateral meralgia paresthetica, and indeed, do not acknowledge the possibility of other causes. While there is occasional acknowledgement of the apparently contradictory MRI findings noted above, there is no discussion of these findings. The basis for the conclusion of the Nerve Conduction Velocities test was also not explained by the examiner, nor was there any discussion of whether the findings demonstrated by that test might be attributable to other neurological causes, such as left lateral meralgia paresthetica. In cases such as this one, where there are multiple diagnoses to which the symptomatology may be attributed, opinions which acknowledge and address this fact and which attempt to distinguish between and among the various diagnoses are more persuasive than opinions which do not address or acknowledge other potential diagnoses. Such lack of discussion or even acknowledgment leaves the impression that the clinician may not be aware of all the pertinent facts and evidence. The weight of a medical opinion is diminished where that opinion is based on an inaccurate factual premise, an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board is left with the distinct impression that the treatment providers listing radiculopathy and sciatica as the cause of the Veteran's symptoms had not considered a diagnosis of left lateral meralgia paresthetica, which has since been confirmed. Therefore, the Board assigns these findings lesser probative weight than that of the August 2013 VA examiner, which addressed all potential causes. Notwithstanding the Board's finding regarding the attribution of symptomatology, the Board acknowledges clinical findings which support the existence of degenerative disc disease and herniated discs. However, such findings do not establish that any neurological symptomatology is related to or associated with these conditions. In other words, the fact that the Veteran has degeneration or herniation of his lumbar spinal discs, is not conclusive evidence that these conditions actually cause nerve impingement. Here, the most persuasive opinion is that these conditions have not caused nerve impingement. The Board acknowledges that service connection has been granted for left L5 radiculopathy. The Board's decision does not sever service connection, but merely applies to the rating assigned to the service-connected condition. Moreover, there is no rating reduction at issue as the disability rating for L5 radiculopathy has always been noncompensable. Rather, the Board's decision is a permissible attribution of symptomatology between service-connected and nonservice-connected disorders on the basis of, and supported by, competent medical evidence. See Mittleider, 11 Vet. App. at 182. In sum, the competent evidence deemed most persuasive by the Board relates the Veteran's lower extremity neurological symptomatology to a nonservice-connected disorder and specifically refutes any association with the service-connected lumbar spine disability. Accordingly, the Board concludes that assignment of separate compensable ratings for neurological abnormalities of the lower extremities is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for the issues on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. With respect to PTSD, the Board finds that the first Thun element is not satisfied. All the Veteran's PTSD symptoms are either explicitly part of the schedular rating criteria under the general formula for rating mental disorders at 38 C.F.R. § 4.130; are analogous to the schedular rating criteria (see 38 C.F.R. §§ 4.20, 4.21), or are "like or similar to" the schedular rating criteria (see Mauerhan at 442-43). The schedular rating criteria specifically provide for disability ratings based on a combination of history and clinical findings. The Veteran's symptoms of irritability, social withdrawal, depressed mood, occasional confusion, and chronic sleep impairment, are specifically included in the rating schedule, and the assigned 30 percent disability rating specifically compensates the degree of occupational and social impairment, including due to specific symptomatology. The GAF scores indicated in the DSM-V, which reflect overall degree of impairment due to psychiatric disorders, and which the Board weighed and considered in this case, are part of the schedular rating criteria. Because the schedular rating criteria are adequate to rate the Veteran's service-connected PTSD, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. With respect to the claimed neurological impairment, the Board has found that there are no associated neurological abnormalities; therefore, there are no symptoms to rate. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). In this regard and consistent with the reasoning presented above, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). In so finding, the Board notes that the Veteran has made no argument that the collective and combined effect of all of his service-connected disabilities renders the rating schedule for mental disabilities inadequate to evaluate his disability, and he has provided no specifics regarding such inadequacy. Rather, it has been his contention that his mental and psychiatric symptomatology is of the type and degree contemplated for a rating at a level higher than 10 percent. To the extent of a 30 percent rating assigned, the Board agrees with this assertion. Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him in June 2008, December 2008, March 2009, and July 2013 under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The RO has also obtained thorough medical examinations regarding the rating claims. The Veteran has made no specific allegations as to the inadequacy of any examination. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The Board acknowledges assertions made in the VA Form 9 dated January 27, 2010, which include vague assertions of failure to follow the duty to assist and failure to follow VA Adjudication Manual, failure to adjudicate issues or claims reasonably raised by the record, and any other due process errors. However, this correspondence offers no detail by which the Board can address these concerns. If the representative believes that there are actual violations of these provisions, they must be described with some specificity for the Board to address them. As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's February 2012 remand instructions by associating with the claims file pertinent updated VA treatment records, providing a Statement of the Case regarding the rating for the Veteran's depressive disorder, and obtaining an examination and opinion regarding lower extremity neurologic abnormalities. The opinion identified the nature of the Veteran's lower extremity neurological impairment and provided an opinion with respect to etiology. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER A disability rating of 30 percent, but not higher, for the service-connected depressive disorder is granted. Assignment of a separate compensable disability rating for neurological abnormalities of the right lower extremities associated with the service-connected lumbar spine disability is denied. Assignment of a separate compensable disability rating for neurological abnormalities of the left lower extremities associated with the service-connected lumbar spine disability is denied. REMAND In an October 2014 rating decision, the RO denied service connection for, inter alia, diabetes mellitus, and paresthetic meralgia of the bilateral lower extremities. The Veteran disagreed with the denial of service connection for diabetes mellitus and paresthetic meralgia of the bilateral lower extremities in January 2015. In February 2015, the RO issued a Statement of the Case addressing only the issue of entitlement to service connection for diabetes mellitus. To date, there has been no Statement of the Case addressing paresthetic meralgia of the bilateral lower extremities. The Board notes that the issue of entitlement to service connection for paresthetic meralgia of the bilateral lower extremities is distinct from the issue here on appeal, which is limited to a separate compensable rating for neurological abnormalities associated with the service-connected lumbar spine disability. Indeed, separate compensable ratings have been denied for the reason that the medical evidence attributes lower extremity neurological symptomatology to a cause other than the service-connected lumbar spine disability, i.e., nonservice-connected paresthetic meralgia. That matter is not a part of the current appeal; however, a timely Notice of Disagreement has been received. Where a Notice of Disagreement is filed, but a Statement of the Case has not been issued, the Board must remand the claim to the Agency of Original Jurisdiction to direct that a Statement of the Case be issued. See 38 C.F.R. §19.9(c)(2015); Manlincon v. West, 12 Vet. App. 238 (1999). In a December 28, 2015 rating decision, the RO denied service connection for a bilateral hip disorder, characterized as trochanteric bursitis, fibrocystic changes of the femoral head and neck conjunctions, femoral acetabular impingement. In a written statement dated January 5, 2016 and received at the RO on that date, the Veteran specifically identified the December 2015 decision to deny service connection and essentially put forward an alternative theory of etiology, claiming that the hip disorders were due to his service-connected knee disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that basing a claim for service connection on a new theory of etiology does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). Separate theories in support of a claim for a particular disability are to be adjudicated under one claim. See Robinson v. Peake, 21 Vet. App. 545, 550-51 (2008). The Board accordingly interprets the Veteran's assertion as a Notice of Disagreement with the December 2015 and as an argument that a different theory of etiology should have been considered. The Board notes that the Veteran's statement predates the official change in law requiring a NOD to be submitted on standardized form 21-0958. See See 38 C.F.R. § 20.201 (from March 24, 2015); also 79 Fed. Reg. 57660, 57698 (noting the effective date is March 24, 2015); VA Form 21-0958, "NOTICE OF DISAGREEMENT." To date a Statement of the Case addressing this issue has not been sent to the Veteran. The Board has assigned an increased rating for the Veteran's service-connected psychiatric disability. Therefore, the issue of entitlement to a TDIU must be readjudicated in light of the higher rating. The Board also notes the issue of entitlement to TDIU is inextricably intertwined with the remanded issues of entitlement to service connection for paresthetic meralgia and a bilateral hip disorder, as a grant of service connection for either disorder would be expected to impact the determination as to his employability in consideration of all service-connected disabilities. Accordingly, the claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, the claim of entitlement to service connection for a bilateral hip disorder, and the claim of entitlement to TDIU are REMANDED for the following action: 1. Send the Veteran a Statement of the Case pertaining to the issues of (a) entitlement to service connection for paresthetic meralgia of the bilateral lower extremities and (b) entitlement to service connection for a bilateral hip disorder, and in connection therewith, provide the Veteran with appropriate notice of his appellate rights. To vest the Board with jurisdiction over these issues, a timely Substantive Appeal (completed and signed VA Form 9 or equivalent) must be filed after receiving the Statement of the Case. See 38 C.F.R. § 20.202 (2015). If, and only if, the Veteran perfects either appeal or both appeals, that issue/those issues must be returned to the Board for appellate review. 2. After implementing the Board's decision to grant an increased 30 percent rating for the service-connected psychiatric disorder, adjudicate the issue of entitlement to TDIU. If the benefit is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These issues must be afforded expeditious treatment. The law requires that all claims 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 2014). ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs