Citation Nr: 1804195 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-45 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to an initial rating higher than 10 percent prior to May 8, 2017, and higher than 30 percent as of that date, for an acquired psychiatric disorder, to include depression. 2. Entitlement to a rating higher than 20 percent for disability of the thoracolumbar spine. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2009, April 2010, and February 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Board remanded this case in May 2014 and April 2017 for further development. The evaluation of the Veteran's psychiatric disorder with depression was increased to 30 percent effective May 8, 2017, by rating decision dated in June 2017. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to May 8, 2017, the Veteran's psychiatric disorder did not cause an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, or more severe occupational and social impairment. 2. As of May 8, 2017, the Veteran's psychiatric disorder did not cause reduced reliability and productivity or more severe occupational and social impairment. 3. The Veteran's thoraolumbar spine disability has not been manifested by forward flexion of 30 degrees or less, or ankylosis. CONCLUSIONS OF LAW 1. Prior to May 8, 2017, the criteria for a rating higher than 10 percent for an acquired psychiatric disorder, to include depression, were not satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.130, Diagnostic Code 9435 (2017). 2. Since May 8, 2017, the criteria for a rating higher than 30 percent for an acquired psychiatric disorder, to include depression, have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.130, Diagnostic Code 9435 (2017). 3. The criteria for a rating higher than 20 percent for disability of the thoracolumbar spine have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5235 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist In its April 2017 remand directives, the Board instructed that the VA examiner who conducted the psychiatric examination must address whether the Veteran's alcohol use was a symptom of his service-connected psychiatric disability, such as a means of self-medication. The May 2017 VA examination reflects the examiner's conclusion that the Veteran's adjustment disorder did not cause his alcohol use. The examiner did not address the issue of whether the Veteran's alcohol use was aggravated by his service-connected psychiatric disorder. The Board finds that this did not compromise the adequacy of the examination, and that the examiner's discussion substantially complied with the Board's remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Board must ensure that there has been compliance with its remand directives); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (substantial rather than strict compliance with the Board's remand directives is required). Specifically, because the Veteran has not been diagnosed with a substance-induced psychiatric disorder, there would be no principled way to establish a medical baseline by which aggravation could be determined. See 38 C.F.R. § 3.310 (2017). With regard to compliance with the Board's remand directives, the Board did not instruct that an aggravation opinion be provided. Accordingly, an aggravation opinion was not warranted. In any event, and in the alternative, because the Board assumes for purposes of this decision that any psychiatric symptoms stemming from or aggravated by the Veteran's alcohol use are wholly attributable to his service-connected psychiatric disorder, no prejudicial error exists. Cf. Mittleider v. West, 11 Vet. App. 181 (1998). Neither the Veteran nor the record raises any other issues regarding VA's duty to notify or duty to assist. II. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. i. Acquired Psychiatric Disorder A. Rating Criteria The Veteran's acquired psychiatric disorder, to include depression, has been rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9435, which pertains to unspecified depressive disorder. Almost all mental health disorders, including depressive disorder, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, a 10 percent disability rating requires: 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 disability rating requires: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability rating requires: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating requires: 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 disability rating requires: 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. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). Id. at 443; see 38 C.F.R. § 4.130. (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has amended certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board. Id.) If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. For claims to which the DSM-IV applies, as is the case here, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. According to DSM-IV, a score of 61-70 indicates "[s]ome 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 score of 51-60 indicates "[m]oderate 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)." Id. A score of 41-50 indicates "[s]erious 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 31-40 indicates "[s]ome 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)." Id. A GAF score thus may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 (observing that a GAF score of 50 indicates serious impairment); accord Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001). While an examiner's classification of the level of psychiatric impairment as reflected in a GAF score can be probative evidence, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2017); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. B. Factual Background Private treatment records dated in July 2008 show that the Veteran was diagnosed with depression, for which he was prescribed medication. The February 2009 VA examination report reflects that the Veteran last worked around 1991 or 1992. He discontinued working because he could no longer physically meet the demands of his work. The Veteran reported getting along "great" with co-workers when he had been employed in the past. He did not have difficulty with immediate supervisors, but reported some difficulty with supervisors who were higher up the chain of command. The examiner observed that "nevertheless," it appeared that the Veteran was able to work well with others in the job setting. The Veteran reported that he had become more socially withdrawn over time. He did have a friend who took care of his horses. The examiner noted that the Veteran demonstrated good social skills during the interview. The Veteran stated that his treating physician felt he might be depressed, and placed him on medication. The Veteran did not feel that he benefited from the medication, and did not continue with the antidepressant medications when the samples ran out. The Veteran reported that his mood was somewhat "negative." He had times when he felt good, but often felt emotionally "low." He also reported difficulty sleeping, with initial insomnia and interrupted sleep. His motivation was variable, but he attributed most of his problems completing tasks to physical rather than psychological difficulties. He was not anhedonic. On examination, affect was full ranging and appropriate. The Veteran described his underlying mood as dysphoric. No impairment in attention or concentration was noted. His memory was functionally intact. His thinking was logical and goal-oriented. Judgment, insight, and abstract reasoning did not appear to be limited. There were no indications of a thought disorder. The examiner diagnosed depressive disorder, NOS (i.e. not otherwise specified), secondary to coping with his chronic medical condition. The examiner assigned a GAF score of 65. With regard to frequency, severity, and duration of symptoms, the examiner found that the Veteran's depression occurred occasionally, but was of mild severity. With regard to the effects on occupational and social functioning, the examiner found that the Veteran's signs and symptoms were mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. An April 2009 private patient health questionnaire reflects that the Veteran endorsed feeling down, depressed, or hopeless nearly every day; having trouble sleeping or sleeping too much nearly every day; feeling tired or having little energy nearly every day; and trouble concentrating on things such as reading the newspaper or watching television nearly every day. He also indicated that more days than not he experienced little interest or pleasure in doing things, poor appetite or overeating, and feeling bad about himself. The April 2009 VA examination report reflects that the Veteran stated that he discontinued the antidepressant medications because he found they were not helpful. He stated that his mood was "somewhat depressed." He continued to experience a low mood on more days than not. He had variable motivation and indicated that his energy was low. He also reported sleep disturbance, including initial insomnia and interrupted sleep. He reported becoming more socially withdrawn, and that he did not like to be around people when he was in pain. He spent most of his time at home. He interacted with two daughters, and reported having a friend. On examination, the Veteran's affect was mildly subdued but reactive. No impairment of concentration or attention was noted. His memory was functionally intact. His thinking was logical and goal-oriented. There were no indications of a thought disorder. The examiner diagnosed depressive disorder, NOS (i.e. not otherwise specified), secondary to coping with his chronic medical condition. The examiner assigned a GAF score of 65. With regard to frequency, severity, and duration of symptoms, the examiner stated that the Veteran's depression occurred occasionally but was of mild severity. There had been neither a remission nor exacerbation of depressive symptoms since the February 2009 examination. With regard to the effects on occupational and social functioning, the examiner found that the Veteran's signs and symptoms were mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted that the Veteran had recently been prescribed medication by a physician, but from the Veteran's description, it served primarily as a sleep aid. An August 2009 VA depression screen was negative for depression. He indicated that over the past two weeks, he had not been bothered by little interest or pleasure in doing things, or by feeling down, depressed, or hopeless. The April 2011 VA examination report reflects that the Veteran described his mood as melancholy. He indicated that he had low mood about once a day. He stated that his energy was somewhat low, but he had good motivation to engage in activities. The examiner observed that activities the Veteran enjoyed such as horseback riding and canoeing were limited due to physical rather than psychological difficulties. The Veteran reported that he had a few friends, but did not see them much anymore. He used to be more socially active, but had lost some interest in seeing others. He spent most of his time at home, and was not interested in a lot of social contact. The examiner observed that the Veteran appeared mildly socially withdrawn, but was quite interactive during the interview. No abnormalities were noted on mental status examination, including with regard to thinking, affect, concentration, and attention. The Veteran's underlying mood was described as dysphoric. The examiner diagnosed depressive disorder, NOS, secondary to coping with physical conditions. The examiner assigned a GAF score of 60 to 65, stating that the Veteran's symptoms appeared to be mild and occur occasionally. The Veteran's depression was largely situational, and secondary to physical problems. The examiner found that the Veteran's signs and symptoms of depression would decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The January 2015 VA examination report reflects the examiner's finding that the Veteran had mild depression, and that his symptoms were not of such severity as to reasonably be expected to have a significant impact on his ability to engage in work activities. He reported having a good relationship with his children. He saw others socially on occasion. He stated that his social life had diminished over time, but attributed this to inability to engage in outdoor activities with friends due to medical issues. A mental status examination was "essentially unremarkable" beyond the Veteran's report of a depressed mood. He stated that his mood was frequently low. The examiner assigned a GAF score of 60 to 65, which the examiner indicated mild symptoms. With regard to occupational and social impairment, the examiner concluded that the Veteran had mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The February 2016 VA examination report reflects that the Veteran reported having friendships. However, his leisure activities such as boating and riding horses had been reduced due to physical problems. He had a daily routine that included visiting with friends in the morning and evening. On examination, no abnormalities were noted. The examiner diagnosed the Veteran with an unspecified adjustment disorder, explaining that this diagnosis overrides the prior diagnosis of depression, and was considered as likely as not secondary to the Veteran's physical conditions. The examiner noted in this regard that psychometric testing was negative for any significant clinical pattern of a mental health condition, and that there was no conclusive evidence to support a diagnosis of depression. The new diagnosis was considered a clarification of the prior diagnosis. With regard to occupational and social impairment, the examiner indicated that a mental condition had been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning, or to require continuous medication. In a September 2016 affidavit, the Veteran stated that he has depression due to chronic pain related to his service-connected musculoskeletal disabilities. He stated that he felt very sad when he thought about all the things he wished he could do or could have experienced if he was not in pain. He stated that he had very low motivation to perform daily routines because he knew they would cause pain. He hardly visited family members because of the pain and depressed moods. He wrote that all of the isolation and pain saddened him to the point of tears on a regular basis. He also got very anxious whenever he had to go somewhere, as he was afraid that someone might bump into him or something bad would happen, so he stayed home as often as he could. The May 2017 VA examination report reflects that the Veteran stated that he always felt tired and that it was hard "to get going." The examiner noted that this could be due to the Veteran's reported sleep impairment, side effects from narcotics, and negative consequences of alcohol use. The Veteran also stated that he liked his own company more than that of others, and had "always been that way." He stated that he is never happy while everyone else is having a good time, but could not provide specific examples of this. He reported that he will "worry about anything," such as whether his car will make it home, or getting to appointments on time. He stated that he had always been that way. He also reported a reduction in interests, stating that he could not fish as he could not walk to the bank or sit in a chair due to pain. He also reported that he used to do his own mechanical work, but could no longer do so because of his back pain. He reported feeling depression, feelings of hopelessness, and worthlessness at times. He also reported problems with concentration, with the examiner noting that this could be due to sleep impairment, the effects from narcotics, or alcohol use. With regard to alcohol use, the examiner noted that the Veteran had a long-standing history of heavy alcohol use, which was a confound for depression and sleep problems. The examiner concluded that the Veteran's alcohol use was less likely than not caused by his service-connected psychiatric disorder. As discussed above, for the purposes of this decision, the Board assumes that all psychiatric symptoms shown in the record, including their severity, are service-connected. Cf. Mittleider v. West, 11 Vet. App. 181 (1998). The May 2017 VA examination report reflects that no abnormalities were observed on mental status examination. The examiner assigned a GAF score of 65. With regard to occupational and social impairment, the examiner found that the Veteran's adjustment disorder caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. C. Analysis The preponderance of the evidence weighs against a rating higher than 10 percent prior to May 8, 2017, and higher than 30 percent since that date, for the Veteran's psychiatric disorder. The VA examination reports consistently show that the examiners concluded that the Veteran's psychiatric disorder caused 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. This degree of occupational and social impairment corresponds with a 10 percent rating under the General Rating Formula. See 38 C.F.R. § 4.130. The evidence does not show that prior to May 8, 2017, the Veteran had an intermittent inability to perform occupational tasks due to psychiatric symptoms, which is required for a 30 percent rating. Id. The Veteran's difficulties with motivation were attributed primarily to his service-connected physical disabilities, which prevented him from engaging in activities he used to enjoy such as horseback riding and fishing. Indeed, in the Veteran's September 2016 affidavit, he stated that he had very low motivation to perform daily routines because he knew they would cause pain. In other words, his lack of motivation was due to physical rather than psychological factors. Similarly, the Veteran indicated that he did have friends he regularly visited, and had a good relationship with his children, but physical factors limited his social activities. At the May 2017 VA examination, the Veteran stated that he liked his own company over that of others, and had always been that way, but this in itself does not indicate more than mild social impairment, as found by the examiner. The April 2009 health questionnaire in which the Veteran endorsed more severe and consistently-present symptoms is outweighed by the VA examination reports dated during the same period and in subsequent years. The April 2009 VA examination was conducted later that same month, and the examiner found mild symptoms that caused decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, which corresponds with a 10 percent rating. The February 2009 and April 2011 VA examination reports reflect similar findings. As these examination reports reflect an objective clinical assessment by a medical professional regarding the degree of severity of the Veteran's symptoms and their effect on occupational and social functioning, they are accorded more evidentiary weight than April 2009 private health questionnaire, which consists solely of check marks with no commentary by a medical professional. The April 2009 VA examiner considered the Veteran's reported a low mood more days than not, but found that it did not result in occupational impairment more severe than a decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress. The Board has also considered the Veteran's statement recorded in the February 2009 VA examination report that he got along "great" with co-workers when he had been employed in the past, and did not have difficulty with immediate supervisors, but reported some difficulty with supervisors who were higher up the chain of command. The sole fact that the Veteran may have had some difficulty with more senior supervisors when he last worked over fifteen years earlier does not in itself show that he had more than mild social impairment, an intermittent inability to perform occupational tasks, reduced reliability and productivity, or more severe occupational impairment. The presence of social impairment is a given with any compensable evaluation of a psychiatric disorder under the General Rating Formula. See 38 C.F.R. § 4.130; see also 38 C.F.R. § 4.126 (while VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment). The February 2009 VA examiner considered this history, but found that the Veteran's psychiatric disorder was manifested by no more than mild symptoms that caused a decrease work in efficiency and ability to perform occupational tasks only during periods of significant stress. The September 2016 affidavit by the Veteran is outweighed by the objective assessments of the VA examiners regarding the degree of occupational impairment caused by the Veteran's psychiatric disorder. Moreover, the fact that the Veteran has depression and feelings of sadness is not at issue. Rather, the VA examiners consistently found that the Veteran's depression did not cause social and occupational impairment corresponding to a rating of 30 percent or higher. Regardless of whether the Veteran's symptoms were equivalent in severity to a rating of 30 percent or higher prior to May 8, 2017, the occupational and social impairment corresponding to a rating of 30 percent or higher were not satisfied, as discussed above. These are independent factors, both of which must be established in order to meet or more nearly approximate the criteria for a given rating under the General Rating Formula. Vazquez-Claudio, 713 F.3d at 118. The AOJ assigned a 30 percent rating effective May 8, 2017, the date of the most recent VA examination, in the June 2017 rating decision. The Board finds that a rating in excess of 30 percent is not warranted. The May 2017 VA examiner found that the Veteran's adjustment disorder caused mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. This degree of occupational and social impairment does not satisfy or approximate the criteria for a 50 percent rating or higher, which require reduced reliability and productivity or more severe functional impairment. See 38 C.F.R. § 4.130. Rather, it more nearly approximates the criteria for a 10 percent rating. See id. In the alternative, the evidence does not show that the Veteran has had speech impairment, panic attacks, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment; impaired abstract thinking, disturbances of motivation and mood (apart from that stemming from the Veteran's physical limitations, as discussed above), or difficulty in establishing and maintaining effective work and social relationships. The Veteran's report of chronic sleep impairment, depressed mood, and feelings of anxiety are set forth in the criteria for a 30 percent rating. Thus, he is not shown to have symptoms equivalent in severity to a rating of 50 percent or higher. Again, irrespective of whether the Veteran has had one or more symptoms associated with a 50-percent rating or higher since May 8, 2017, they are not show to cause reduced reliability and productivity or more severe occupational impairment. Thus, absent the required degree of social and occupational impairment specified in the General Rating Formula, the criteria for a rating of 50 percent or higher are not more nearly approximated. See Vazquez-Claudio, 713 F.3d at 118. The Veteran's GAF scores of 60 to 65, which were assigned for mild symptoms or functional impairment according to the examiners, do not support higher ratings prior to or since May 8, 2017 in light of the examiners' specific findings and discussion regarding occupational impairment, as discussed above. The Board has considered the fact that there may have been fluctuations in severity of the Veteran's psychiatric disorder during the pendency of this claim, but finds that it has not met or more nearly approximated the criteria for ratings higher than those already assigned, for the reasons discussed above. Because the preponderance of the evidence weighs against ratings higher than 10 percent prior to May 8, 2017, and higher than 30 percent as of that date, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. ii. Thoracolumbar Spine Disability A. Rating Criteria The Veteran's thoracolumbar spine disability has been rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 5235, which pertains to vertebral fracture or dislocation. The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. See id. The above criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. In this regard, the criteria "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). The above considerations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). B. Analysis The preponderance of the evidence weighs against a rating higher than 20 percent under the General Rating Formula at any point during the pendency of this claim. The VA examination reports do not show forward flexion of the thoracolumbar spine to 30 degrees or less, including after repetitive testing. Although the Veteran had pain during range of motion, it did not cause further limitation. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). The VA examination reports similarly show that other factors such as weakness, fatigability, or incoordination did not cause further limitation of motion so as to satisfy the criteria for a 40 percent rating. See 38 C.F.R. §§ 4.40, 4.45. With regard to flare-ups, the April 2009 VA examination report reflects that the Veteran had flares occurring one to two times per week, which could be triggered if he slipped and caught himself from falling, or vacuumed. The flare-ups lasted ten to twelve hours, and caused significant impairment. The April 2011 VA examination report reflects that the Veteran reported daily flare-ups that lasted 10 to 60 minutes. The pain was a 10 out of 10 in severity at those times. The January 2015 VA examination report reflects that the Veteran experienced flare-ups not more than twice per year, and which lasted up to two nights. In the May 2017 VA examination report, the examiner checked the "yes" box for flare-ups, and referred to the Veteran's statements of not being able to sleep on his side and experiencing pain when he stood up to shave. The examiner noted that the Veteran did not report a negative impact on basic activities of daily living or sedentary pursuits. The Veteran did not otherwise report flare-ups. The Board finds that the Veteran's reported flare-ups have not occurred frequently enough or lasted long enough to support a higher rating, but rather are contemplated by the 20 percent rating currently assigned. Cf. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (observing that "temporal considerations are important" when determining whether a VA examination must be performed during a flare-up, and that occasional short-lived flare-ups must be distinguished in this regard from those cases where a person experiences a worsened condition for weeks or months which impairs earning capacity). At their worst, in 2009, they reportedly lasted up to 24 hours per week, with each lasting 10 to 12 hours at a time. This does not approximate flare-ups lasting weeks or longer at a time. See id. Subsequently, the Veteran did not report flare-ups of such duration, but rather reported daily flare-ups occurring an hour or less, or flare-ups occurring twice per year and lasting not more than one or two nights. Thus, even if there were further limitation of motion during flare-ups, they did not last long enough or occur frequently enough to warrant a higher or staged rating, either in 2009 or in more recent years. Accordingly, the preponderance of the evidence shows that limitation of motion due to the Veteran's lumbar spine disability has not met or more nearly approximated the criteria for a rating higher than 20 percent under the General Rating Formula, including when taking into account functional loss on repeated use and during flare-ups. The VA examination reports show that the Veteran has not had ankylosis, favorable or unfavorable, of the thoracolumbar spine. Thus, the other criteria for a rating higher than 20 percent under the General Rating Formula have not been satisfied or more nearly approximated. The VA examination reports show that the Veteran does not have a neurologic abnormality associated with his thoracolumbar spine disability. Thus, consideration of a separate rating for a neurologic abnormality is not warranted. The Veteran is not shown to have IVDS. In the alternative, the criteria for a rating higher than 20 percent under the Formula for Rating IVDS have not been satisfied during the pendency of this claim. See 38 C.F.R. § 4.71a, DC 5243. To assign a rating under this formula, there must be incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. Id., Note (1). The evidence does not show that the Veteran's lower back disability has been manifested by such incapacitating episodes during the pendency of this claim. Accordingly, the criteria for a rating higher than 20 percent under DC 5243 are not more nearly approximated. A separate rating under 38 C.F.R. § 4.71a, DC 5003 for arthritis of the thoracolumbar spine may not be assigned, as a rating under this diagnostic code may only be assigned when the disability is noncompensable under the diagnostic code pertaining to limitation of motion. The Veteran's disability of the thoracolumbar spine is already rated based on painful and limited motion under DC 5235. Moreover, in light of the criteria under DC 5003, to assign a separate rating under this diagnostic code would result in compensating twice for the same manifestation, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14 (2017). A rating higher than 20 percent is not available under DC 5003. 38 C.F.R. § 4.71a. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. See 38 C.F.R. § 3.321(b)(1); 82 Fed. Reg. 57830 (December 8, 2017). The Board finds that referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's back pain and associated limitations with regard to standing, walking, sitting, driving, and carrying objects such as groceries, as well as other effects of the Veteran's pain and limited motion in various contexts of daily life and employment, are contemplated by the applicable rating criteria, which take into account pain and functional loss due to factors such as pain, weakness, incoordination, and fatigability. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, General Rating Formula. In this regard, the rating criteria serve as markers of disability at different levels of severity, even if no description of how such disability may affect functioning in the context of life and work is provided in the rating schedule. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 369, 371 (2017) (holding that criteria for hearing loss, which are based solely on numerical results of audiological testing, contemplate the functional effects of hearing loss in "various contexts," as these are "precisely the effects that VA's audiometric tests are designed to measure"). Thus, the sole fact that an example or description of functional impairment, as may be shown in the evidentiary record, is not provided in the rating criteria does not in itself support a finding that the disability at issue is not adequately contemplated by the rating schedule. Cf. id. The Veteran's functional impairment, as described in the examination reports, appears consistent with lower back pain and limited motion of the spine, and no medical professional has suggested otherwise. To the extent that the Veteran has sleep impairment due to his back disability, the effects of it are compensated by the rating assigned his service-connected psychiatric disorder, which contemplates sleep impairment. See 38 C.F.R. § 4.130. The evidence does not show that the Veteran's symptoms and functional impairment are different from, or more severe than, the occupational impairment contemplated by the General Rating Formula such as to render its application impractical in this case. See 38 C.F.R. § 3.321; Thun, 22 Vet. App. at 114. Accordingly, as the Veteran's thoracolumbar spine pathology is not manifested by an exceptional or unusual disability picture, the Board will not refer this case for extraschedular consideration. See id. The Board notes that it is remanding the issue of entitlement to TDIU for a new VA opinion. The purpose of the remand, as discussed below, is to obtain a new medical opinion. The Board finds that there is no reasonable possibility that such development would affect the determination as to whether extraschedular referral is warranted for the Veteran's thoracolumbar spine disability. In this regard, the basis of the Board's conclusion that such referral is not warranted is that the Veteran's lower back disability does not constitute an exceptional or unusual disability picture. The Board's decision on this issue does not turn on whether the Veteran's disability causes marked interfered with employment. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Thus, the Board finds that the record is sufficiently developed to determine whether extraschedular consideration is warranted, and that this issue is not intertwined with the issue of entitlement to TDIU in this case. Cf. Brambley v. Principi, 17 Vet. App. 20 (2003) (holding that the Board's remand of entitlement to TDIU for additional record development was inconsistent with a finding that the record was sufficient to conclude that the Veteran's service-connected disability did not produce a marked interference with employment for the purposes of extraschedular consideration under § 3.321(b)). In rendering this decision, the Board does not doubt or wish to gloss over the fact that the Veteran's thoracolumbar spine disability is significantly disabling. The Board's determination is limited to whether a higher evaluation may be assigned under the applicable legal framework. Because the preponderance of the evidence weighs against a rating higher than 20 percent for the Veteran's thoracolumbar spine disability at any point during the pendency of this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. ORDER An initial rating higher than 10 percent prior to May 8, 2017, and higher than 30 percent as of that date, for an acquired psychiatric disorder, to include depression, is denied. A rating higher than 20 percent for disability of the thoracolumbar spine is denied. REMAND The Board sincerely regrets the delay, but the issue of entitlement to TDIU must be remanded again for further development, as specified below. Such development is necessary to aid the Board in making an informed decision, and will help ensure that this issue is afforded every consideration. A new VA medical opinion must be obtained addressing the impact of the Veteran's service-connected musculoskeletal disabilities on occupational functioning. In the May 2017 VA examination report, the examiner opined that there was no indication that the Veteran would be prevented from gainful sedentary employment, without no further discussion or explanation. VA opinions dated in April 2011 and February 2016 conclude that the Veteran's service-connected disabilities of the thoracolumbar spine, residuals of a fracture of the left distal tibia and malleolus (left lower extremity disability), and residuals of a left pelvis fracture would "less likely as not" cause difficulties with prolonged weight bearing activities including standing, walking, bending, pushing, pulling, lifting, carrying, holding, driving, or operating machinery. However, no explanation was provided for these opinions. Thus, they are not sufficient to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.") Significantly, the April 2011 and February 2016 VA opinions do not reconcile the conclusion that the Veteran would not have difficulties with prolonged weight bearing activities including standing, walking, bending, pushing, pulling, lifting, carrying, holding, driving, or operating machinery with evidence indicating that the Veteran does have limitations in these areas, including his reported pain and the findings of limited range of motion. Moreover, the VA opinions do not address the Veteran's reported limitations with respect to sitting for prolonged periods. In this regard, the April 2010 VA examination report reflects that the Veteran was only able to sit for one hour, stand five to ten minutes, and walk two blocks. The April 2011 VA examination report reflects that the Veteran reported that sitting was limited to 60 minutes. The May 2017 VA examination report reflects that the Veteran stated he could not sit in a chair because of pain. An October 2015 private medical opinion authored by D. Miller Jr., M.D., J.D., a physician with extensive experience as an orthopedic surgeon, states that it is well known that individuals with significant low back problems have an "absolute intolerance for prolonged sitting." Accordingly, a new VA medical opinion is warranted that takes into account the Veteran's reported difficulties with prolonged sitting, and which is supported by a more thorough discussion of how the Veteran's service-connected disabilities would affect his ability to engage in sedentary work. With regard to the October 2015 evaluation by Dr. Miller, the Board finds that it similarly does not offer a sufficient explanation specific to the Veteran regarding the impact of his service-connected musculoskeletal disabilities on his occupational functioning. Most of the discussion is limited to a review of evidence dated in the 1990's or earlier, and a critique of a VA medical opinion. The only discussion of the current impact on the Veteran's ability to engage in a sedentary occupation states that the Veteran could not tolerate prolonged sitting even with appropriate breaks, without further explanation. Moreover, Dr. Miller also notes that the Veteran's vocational background and experience consisted of more physically active occupations, and that he had a high school education, which would limit his ability to find work that was "not labor-intensive." Dr. Miller concluded that the Veteran was precluded from securing or following substantially gainful employment of all types in the community in which he lives. However, the availability of work in the community is not a relevant factor in determining whether unemployability is established for TDIU purposes. See Smith v. Shinseki, 647 F.3d 1380, 1384 (Fed. Cir. 2011) (noting that VA regulation governing TDIU claims includes no requirement that VA consider the availability of work, and deferring to VA's interpretation that the availability of work is an "extraneous factor" that is irrelevant to a TDIU determination) (citing VA Adjudication Procedures Manual Rewrite M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, 2-F-12)). Accordingly, the October 2015 opinion by Dr. Miller is not sufficient for the Board to make an informed decision on this issue. Cf. Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim). Accordingly, the case is REMANDED for the following action: 1. Add to the claims file any outstanding VA treatment records dated since June 2017. 2. Obtain a new VA medical opinion addressing the impact of the Veteran's service-connected disabilities of the thoracolumbar spine, left lower extremity, and pelvis on his occupational functioning. The Veteran should not be scheduled for an examination unless the clinician who renders the opinion deems it necessary. The opinion need not state whether the Veteran is capable of sedentary employment. Rather, the examiner should discuss how and to what extent the Veteran's service-connected orthopedic disabilities affect his ability to perform occupational tasks, including with regard to sitting, standing, walking, lifting, bending, pushing, and pulling. The examiner should note in this regard that the Veteran has reported being unable to sit for prolonged periods of time without pain. The opinion must be supported by a complete explanation. 3. Then, after completing any other development that may be indicated, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. §§ 5109B, 7112 (2012). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs