Citation Nr: 1804286 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-10 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a higher disability rating for service-connected chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy, to include the question of the propriety of the reduction in rating for the disability from 40 percent to 10 percent effective July 1, 2013, was proper. 2. Entitlement to an effective date earlier than May 10, 2013, for the award of a 70 percent disability rating for major depressive disorder. 3. Entitlement to a disability rating greater than 70 percent for major depressive disorder. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Private Attorney ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from March 1982 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2013 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Specifically the April 2013 rating decision, in part, reduced a 40 percent rating for the Veteran's lumbar spine disability to 10 percent effective July 1, 2013. Subsequently, by rating decision dated in November 2014, the RO increased the Veteran's lumbar spine disability from 10 percent to 20 percent disabling effective November 21, 2014. The June 2014 rating decision increased the Veteran's disability rating for his service-connected major depressive disorder to 70 percent disabling effective May 10, 2013. The issue of entitlement to a TDIU has been raised as a component of the increased rating appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran indicated on his March 2014 VA Form 9 that he wished to testify at a Board videoconference hearing. In March 2014 correspondence, he withdrew the hearing request. This case was previously before the Board in September 2015 at which time it was remanded for additional development. FINDINGS OF FACT 1. The April 2013 rating decision in which the RO reduced the rating for chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy from 40 percent to 10 percent, the February 2014 statement of the case (SOC), as well as supplemental SOCs (SSOCs) dated in December 2014 and January 2017, reflect that the RO failed to consider, and to apply, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. 2. The current formal claim for service connection for major depressive disorder was received on February 3, 2011. 3. Since February 3, 2011, the Veteran's major depressive disorder has met the requirement for a 70 percent disability rating and no higher. 4. The Veteran's chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy has not resulted in ankylosis of the thoracolumbar spine. Incapacitating episodes have not been shown, and the evidence has not shown any objective neurologic abnormalities associated with the back disability, aside from the right-sided radiculopathy in the L5-S1 nerve root, which has been separately rated. 5. The Veteran has established service connection for major depressive disorder, rated 70 percent disabling; chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy with intervertebral disc syndrome; right sided lumbar radiculopathy in the L5-S1 nerve root, rated 20 percent disabling; diabetes mellitus, type II., rated 20 percent disabling; left ankle ligament sprain, rated 10 percent disabling; and scar, residuals of surgery associated with chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy with intervertebral disc syndrome, rated noncompensable, resulting in a combined disability rating of 90 percent. 6. Resolving all reasonable doubt in the Veteran's favor, the Board finds that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. As the RO's reduction of the rating for service-connected chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy from 40 percent to 10 percent, effective July 1, 2013, was not in accordance with the law, the criteria for restoration of the 40 percent rating from that date are met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.105, 3.344 (2017). 2. The criteria for assignment of an effective date of February 3, 2011, and no earlier, for a 70 percent rating for service-connected major depressive disorder have been met. 38 U.S.C. § 5110(b) (2014); 38 C.F.R. §§ 3.157(b)(1), 3.400(o)(2), 4.7, 4.130, Diagnostic Code (DC) 9434 (2017). 3. The criteria for a rating in excess of 40 percent for chronic lumbosacral strain with herniated disc, status post right "5 hemilaminectomy and discectomy have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, DCs 5242-5243, 5237 (2017). 4. The criteria for an initial rating of 70 percent, but not higher, for major depressive disorder have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 9434 (2017). 5. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the duty to assist, the claims file contains the Veteran's post-service reports of private and VA treatment, Social Security Administration records, and VA examination reports. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Additionally, the Veteran was most recently afforded a VA spine examination in December 2016 and a VA psychiatric examination in March 2017. In the case at hand, neither the Veteran nor his representative has asserted that either the December 2016 or March 2016 VA examination is inadequate or that such disability has worsened since the December 2016/March 2017 VA examinations. See 38 C.F.R. § 3.327 (a) (2015). Furthermore, there is no objective evidence indicating that there has been an increase in the severity of the Veteran's disabilities since these examinations. As such, the Board finds that it is not necessary to remand the claim for the purpose of scheduling new VA examinations. The Board has considered whether it is necessary to remand the back disability claim in light of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). As will be discussed in more detail below, the Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59 (2016). The Board notes that the Veteran is already in receipt of a rating for his low back disability that contemplates the maximum loss of range of motion and favorable ankylosis, and that the only way he may receive a higher schedular rating is by demonstrating unfavorable ankylosis. (As will be described in more detail below, in the context of this claim, favorable ankylosis exists when the low back is fixed in a neutral position, while unfavorable ankylosis exists when the low back is fixed either in flexion or extension.) Thus, entitlement to an increased rating may only be demonstrated by showing that the back is fixed in one particular position rather than in another. This rating criterion does not involve assessment of range of motion, as the Veteran's ability to move his low back would necessarily preclude a finding of unfavorable ankylosis. The Board therefore finds that a remand of this claim in order to obtain an examination that complies with Correia would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). Finally, the Board finds that the AOJ has substantially complied with the Board's September 2015 remand directives. Specifically, the AOJ obtained records from the Social Security Administration and issued a statement of the case concerning the major depressive disorder and TDIU issues. Therefore, the Board finds that the AOJ has substantially complied with the September 2015 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). II. Reduction Analysis Historically, the RO granted service connection for chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy in an August 2009 rating decision, assigning a 10 percent disability rating effective April 30, 2009 (the date of the Veteran's claim) along with a temporary total rating from June 17, 2009 to July 31, 2009 due to surgical or other treatment necessitating convalescence. The Veteran submitted a claim for an increased rating for his lumbar spine disability in January 2010. Following VA spine examination in February 2010, the RO, in part, increased the 10 percent disability rating for the Veteran's lumbar spine disability to 40 percent, effective January 5, 2010. In February 2012, the Veteran submitted a formal claim for a TDIU. In connection with this claim he was afforded a new VA spine examination in February 2012. Subsequently, by rating decisions dated in July 2012 and December 2012, the RO proposed to decrease the Veteran's disability rating for the lumbar spine disability, from 40 percent to 10 percent disabling based on findings in the February 2012 VA examination. The RO effectuated the proposed reduction effective July 1, 2013 by rating decision dated in April 2013. Initially, the Board notes that, prior to reducing a veteran's disability rating, VA is required to comply with pertinent VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his or her right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). However, where there is no reduction in the amount of compensation payable to a beneficiary, 38 C.F.R. § 3.105(e) does not apply. See VAOPGCPREC 71-91. In this case, the RO afforded the Veteran notice of the proposed reduction as well as an opportunity to supply evidence or request a hearing. As such, the RO satisfied the procedural requirements of 38 C.F.R. § 3.105(e) (to include notifying the Veteran of the proposed reduction), and such requirements need not be discussed further. Turning next to the question of the propriety of the reduction, the Board notes that Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, the RO, in an April 2013 rating decision, reduced the rating for the Veteran's lumbar spine disability from 40 to 10 percent, effective July 1, 2013. The 40 percent rating had been assigned in the RO's February 2010 rating decision, which increased the Veteran's disability rating for the lumbar spine from 10 percent to 40 percent, effective January 5, 2010. Thus, the 10 percent rating was in effect for less than 5 years. Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply in this case. As regards disability ratings in effect for less than 5 years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). Unfortunately, the April 2013 rating decision that effectuated the reduction of the rating, the February 2014 SOC, as well as SSOCs dated in December 2014 and January 2017 reflect that the RO failed to consider, and provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. Therefore, the Board finds that the correct standard was never applied when the RO effectuated the reduction of the rating. See 38 C.F.R. § 3.344(c). The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, render a rating decision void ab initio. Such an omission is error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292. See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Accordingly, the 40 percent rating assigned for chronic lumbosacral strain with herniated disc, status post right l5 hemilaminectomy and discectomy, must be restored, effective July 1, 2013. Given the outcome warranted in view of this procedural error, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. III. Earlier Effective Date Analysis The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C. § 5107(b). A claim is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). By way of history, the Veteran submitted an initial claim for service connection for depressive disorder on February 3, 2011. However, prior to this claim, by rating decision dated in January 2011, the RO granted service connection for major depressive disorder and assigned a 30 percent disability rating effective February 3, 2011, the date of the Veteran's claim. In correspondence received by the RO on May 10, 2013, the Veteran requested an increased rating for his depression and, by rating decision in June 2014, the RO increased the Veteran's disability rating for major depressive disorder from 30 percent disabling to 70 percent disabling effective May 10, 2013. Given the discrepancy in dates (i.e., the RO granted service connection for depressive disorder in January 2011, prior to the Veteran's claim in February 2011) it appears that the January 2011 rating decision was actually issued in January 2012. However, in affording the Veteran the benefit of the doubt, the Board will assume that the current claim on appeal was received on February 3, 2011 and has been pending since this time. As this appeal stems from an initial grant of service connection for depressive disorder, that date serves as the date of claim. As such, it is necessary to determine whether, sometime between February 30, 2011, and May 10, 2013, an increase in the Veteran's depressive disorder became factually ascertainable. To do so, the rating criteria for this disability must be examined. The Veteran's depressive disorder is rated under the General Rating Formula for Mental Disorders. Under this formula, a 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A review of the pertinent medical evidence dated between February 3, 2011 and May 10, 2013 includes a March 2011 VA psychiatric examination. At that time, it was noted that the Veteran last worked as a forklift operator in April 2008. The Veteran was a full-time student at a community college, lived by himself, and had no close relationships. It was noted that the Veteran had moderate impairment in functioning, especially with social functioning. He periodically neglected cleaning and hygiene with severe depressive spells where he stayed in bed, lacked motivation, experienced crying spells a couple of times per month, had chronic sleep disturbances (only slept two to three hours at a time), and chronic fatigue. It was noted that the Veteran was laid off from his job due to a disagreement with a supervisor. The Veteran had few social activities and experienced passive suicidal and violent thoughts without intent or plan to harm himself. Similarly, a February 2012 VA psychiatric examination noted that the Veteran was still unemployed, a full-time student at a community college, and living by himself, and had no close relationships. It was noted that the Veteran struggled with his college classes due to stress and lack of focus (he could only read for 15 minutes at a time). He experienced irritability, depressed mood, sleep issues, disturbed motivation and mood, difficulties with work and social relationships, anhedonia, guilt, as well as diminished concentration and attention. Also of record are comprehensive medical opinions from a physician as well as a vocational consultant. In a January 2017 statement from Dr. R.W., the physician reviewed the claims file, to include the March 2011 and February 2012 VA examination reports and opined that the Veteran's major depressive disorder was severe enough to prevent him from sustaining gainful employment. Also, in a July 2017 statement from S.B., a vocational consultant, S.B. reviewed the claims file, to include the March 2011 and February 2012 VA examination reports and found that the Veteran's emotional symptoms and limitations eliminate his access to sedentary work. Given the above, the Board finds that February 3, 2011 is the proper effective date for the assignment of a 70 percent disability rating for service-connected depressive disorder. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). As for the potential of an effective date earlier than February 3, 2011, although the Veteran has, no doubt, experienced depression warranting a 70 percent disabling rating prior to February 3, 2011, he did not submit a claim for service connection for a psychiatric disability until February 3, 2011. As noted above, VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Furthermore, the Veteran's attorney has not requested an effective date earlier than February 3, 2011. IV. Increased Rating Analysis Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In a decision, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Lumbar spine With regard to the Veteran's lumbar spine disability, as above, the RO granted service connection for chronic lumbosacral strain with herniated disc, status post right l5 hemilaminectomy and discectomy in an August 2009 rating decision, assigning a 10 percent disability rating effective April 30, 2009 (the date of the Veteran's claim) along with a temporary total rating from June 17, 2009 to July 31, 2009 due to surgical or other treatment necessitating convalescence. The Veteran submitted a claim for an increased rating for his lumbar spine disability in January 2010. Following VA spine examination in February 2010, the RO, in part, increased the 10 percent disability rating for the Veteran's lumbar spine disability to 40 percent, effective January 5, 2010. In February 2012, the Veteran submitted a formal claim for a TDIU. In connection with this claim he was afforded a new VA spine examination in February 2012. Subsequently, by rating decisions dated in July 2012 and December 2012, the RO proposed to decrease the Veteran's disability rating for the lumbar spine disability, from 40 percent to 10 percent disabling based on findings in the February 2012 VA examination. The RO effectuated the proposed reduction effective July 1, 2013 by rating decision dated in April 2013. However, as the reduction of the 40 percent rating for chronic lumbosacral strain with herniated disc, status post right l5 hemilaminectomy and discectomy is found to be void ab initio, the Board has restored the 40 percent rating for the lumbar spine disability, from July 1, 2013. The Veteran's lumbar spine disability is rated pursuant to 38 C.F.R. § 4.71a, DCs 5242-5243 and 5237 which pertain to degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and lumbosacral strain. Lumbosacral strain and degenerative arthritis of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the Formula provides for ratings as follows. A 10 percent rating is warranted 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 body height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Of the Notes listed in the regulation, of particular relevance is Note (1) that specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Also relevant is Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months and a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, supra. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The medical evidence relating to the Veteran's February 2012 claim for an increased rating consists of VA examination reports dated in February 2012, November 2014, and December 2016; VA treatment records dated through June 2016; and private treatment records dated through July 2017. During the February 2012 VA examination, the Veteran reported that he had intermittent stiffness and sharp pain to the lower back and right buttock. He could not bend to pick up objects on the floor and could not sit or stand for more than 20 minutes due to lumbar spine pain. He did not use a brace and walked with a cane. It was noted that the Veteran was a certified heavy equipment operator but had been unemployed for the past year due to his lumbar spine condition. On range of motion testing, the Veteran had active and passive range of motion of the lumbar spine with use of goniometer times three, forward flexion to 75 degrees with pain at 70 degrees, extension to 30 degrees with pain at 25 degrees, bilateral lateral flexion to 35 degrees with pain at 35 degrees, and bilateral lateral rotation to 30 degrees with pain at 30 degrees. With repetitive use times three, the Veteran's range of motion was not additionally limited due to pain, weakness, or fatigability. There was no muscle atrophy and muscle tone was adequate in the lumbar spine. There was no swelling, inflammation, or edema. There was no evidence of deformity or instability in the lumbar spine. The Veteran complained of mild pain on palpation of the lumbar spine. Muscle strength in the lumbar spine was 5/5. Sensory testing with the use of monofilament showed no decrease in sensation in the lower extremities. The Veteran complained of numbness and burning in the foot. Deep tendon reflex was mildly decreased in the right ankle but normal in the knees. The Veteran had no lower extremity contractures, no prosthesis, or amputation. There was no muscle atrophy and muscle tone of the lumbar spine was adequate. There was mild tenderness on palpation. During the November 2014 VA examination, the Veteran reported chronic constant back pain which he treated with medication, providing minimal temporary relief. The Veteran denied flare-ups that impacted the function of the thoracolumbar spine. However, he did report that the his lumbar spine disability regularly resulted in functional loss described as difficulty bending at the wait or standing more than 15 to 20 minutes. On range of motion testing, the Veteran had forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner noted that the loss of motion contributed to functional loss in that the Veteran was restricted in the above activities. There was pain with weight bearing and the Veteran had localized tenderness or pain on palpation of joints and/or soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions but this resulted in additional loss of function. Specifically after three repetitions the Veteran had forward flexion to 25 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The Veteran was not examined after repeated use over time. However, the examiner noted that the findings supported the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time however, the examiner was not able to describe this deficit in terms of range of motion. The examination was not completed during a flare-up but, as above, the Veteran denied experiencing flare-ups. There was no guarding or muscle spasm of the spine. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was also normal with the exception of the right ankle, which was hypoactive. Sensory examination was also normal with the exception of the right lower leg/ankle, which was decreased. Straight leg raising was negative. There was moderate radiculopathy of the right lower extremity but no other signs or symptoms of radiculopathy. There was no ankylosis of the spine and no other neurologic abnormalities. While it was noted that the Veteran had IVDS it was also noted that there were no episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. As above, the Veteran constantly used a cane to assist with ambulation. There was X-ray evidence of arthritis but no evidence of a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner opined that the Veteran's lumbar spine disability impacted his ability to work in that he would not be able to perform physical employment, only sedentary employment. It was noted that the Veteran last worked in 2008 as a heavy equipment operation and was enrolled in college learning network security. During the December 2016 VA examination, the Veteran reported ongoing radicular back pain that, despite continued, regular epidural injections and physical therapy, nonetheless persisted with associated symptoms and functional impairment. Significantly, the Veteran denied flare-ups of the thoracolumbar spine but did report functional loss due to the lumbar spine disability. Specifically, the Veteran reported constant low back pain that, along with burning, numbness, and tingling, occasionally radiated down his right buttock, hamstring, and calf to the dorsum of his right foot associated with reclining two hours, sitting 30 minutes, standing 25 minutes, walking 15 minutes, bending, or lifting and/or carrying loads heavier than 20 pounds. On range of motion testing, the Veteran had forward flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner noted that the loss of motion contributed to functional loss in that the Veteran was restricted in the above activities. There was no pain with weight bearing and no localized tenderness or pain on palpation of joints and/or soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions and this did not result in additional loss of function. The Veteran was not examined after repeated use over time and the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, or incoordination significantly did not limit the Veteran's functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the spine. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination was also normal. Sensory examination was normal with the exception of the right lower leg/ankle and foot/toes, which was decreased. Straight leg raising was negative. There was mild radiculopathy of the right lower extremity but no other signs or symptoms of radiculopathy. There was no ankylosis of the spine and no other neurologic abnormalities. While it was noted that the Veteran had IVDS it was also noted that there were no episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. With regard to assistive devices, it was noted that the Veteran regularly used a brace and cane and occasionally used a walker. There was X-ray evidence of arthritis but no evidence of a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner opined that the Veteran's lumbar spine disability impacted his ability to work. Specifically, it was noted that the Veteran's low back condition precluded an occupation requiring constant, uninterrupted sitting, prolonged or extensive weightbearing, frequent or repetitive bending, or lifting and/or carrying even modestly heavy loads. Relative to this condition alone, given appropriate accommodations such as frequent breaks as needed, however, the Veteran could nonetheless be reasonably expected to function otherwise in a sedentary capacity. Also of record are VA treatment records dated through June 2016 as well as medical opinions regarding the Veteran's employability due to his service-connected lumbar spine disability. The VA treatment records dated through June 2016 show similar findings as noted in the VA examination reports above. Significantly, in a July 2017 statement from S.B., a vocational consultant, S.B. reviewed the claims file, to include the VA examination reports discussed above and found that the Veteran's low back disability eliminated his access to physical work. Upon review of the evidence, the Board concludes that a rating in excess of 40 percent for the Veteran's chronic lumbosacral strain with herniated disc, status post right l5 hemilaminectomy and discectomy is not warranted. With regard to the potential for a higher rating under the criteria for IVDS, while a disability rating higher than 40 percent is warranted when there is evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, the Veteran's reports of being bedridden and unable to do anything during the extreme flare ups, is not definitionally equivalent to an actual incapacitating episode according to Note (1) in DC 5243 since there is no indication this bed rest is physician-prescribed, only instead at the Veteran's personal election. Significantly, while the November 2014 and December 2016 VA examination reports show that the Veteran has IVDS, the Veteran denied experiencing any flare-ups and the examiners also indicated that the Veteran did not have IVDS with resulting incapacitating episodes. With regard to the potential for a higher rating under the criteria for loss of motion, the Board notes that a rating higher than 40 percent based on orthopedic impairment requires a finding of ankylosis. Ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28th ed. 1994) at 86). For VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). There is no evidence that the Veteran's spine is fixed in position, or ankylosed. Significantly, the Veteran had flexion to 75 degrees (70 degrees with pain) during the February 2012 examination, flexion to 40 degrees (25 degrees upon repetition) during the November 2014 VA examination, and flexion to 40 degrees during the December 2016 VA examination. Accordingly, the Board finds that the evidence does not support the assignment of a higher rating for the Veteran's lumbar spine disability. Furthermore, neither the Veteran nor representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Major depressive disorder As above, the Veteran's major depressive disorder is rated under DC 9434. Under that code, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. § 4.71a, DC 9434, General Rating Formula for Mental Disorders (2017). The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130 (2016). DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between 0 and 100, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. VA has recently changed its regulations, and now requires the use of DSM-5, effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in the evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014, and is not applicable to cases certified to the Board prior to that date. As this case was certified to the Board after August 4, 2014, GAF scores will not be used in the evaluation of the psychiatric disorder. 79 Fed. Reg. 45093 (2014). Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. In addition, the rating must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (2016). Evidence relevant to the current level of severity of major depressive disorder includes VA examination reports dated in March 2011, February 2012, February 2014, and March 2017. As above, during the March 2011 VA psychiatric examination, it was noted that the Veteran last worked as a forklift operator in April 2008. The Veteran was a full-time student at a community college, lived by himself, and had no close relationships. It was noted that the Veteran had moderate impairment in functioning, especially with social functioning. He periodically neglected cleaning and hygiene with severe depressive spells where he stayed in bed, lacked motivation, experienced crying spells a couple of times per month, had chronic sleep disturbances (only slept two to three hours at a time), and chronic fatigue. It was noted that the Veteran was laid off from his job due to a disagreement with a supervisor. The Veteran had few social activities and experienced passive suicidal and violent thoughts without intent or plan to harm himself. Similarly, the February 2012 VA psychiatric examination noted that the Veteran was still unemployed, a full-time student at a community college, and living by himself, and had no close relationships. It was noted that the Veteran struggled with his college classes due to stress and lack of focus (he could only read for 15 minutes at a time). He experienced irritability, depressed mood, sleep issues, disturbed motivation and mood, difficulties with work and social relationships, anhedonia, guilt, as well as diminished concentration and attention. During the February 2014 VA examination, the examiner continued a diagnosis of major depressive disorder, recurrent, severe. It was noted that the Veteran continued to live by himself and attend classes three days per week. He had not dated anyone in the past three years and did not have any friends. His older brother was his only significant social contact. It was noted that the Veteran was having trouble in school due to experiencing periodic "spells" lasting one to three days where he had no energy or desire to get out of bed. He was often tired and found it difficult to concentrate. On mental status examination, the examiner noted that the Veteran's psychiatric symptoms included: depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and mental sluggishness. During the March 2017 VA psychiatric examination, the examiner continued a diagnosis of major depressive disorder and also diagnosed alcohol use disorder, noting an onset of November 2016. At that time, the Veteran reported that he continued to live alone with no close relationships. He completed his Associate's Degree in engineering in 2014 and began taking classes towards a Bachelor's Degree but was dismissed from Drexel University in November 2016 due to the Veteran not maintaining acceptable academic performance. The Veteran reported began drinking significant amounts of alcohol in November 2016 following his dismissal from school. The Veteran reported experiencing a depressed mood and crying spells every day. He also experienced nightmares three to four times per week. The Veteran reported intense anger triggered when people try to correct him. He had difficulty falling and staying asleep, even with medication. His difficulty concentrating impacted his performance in college and his low energy/motivation impacted his keeping himself and his apartment clean. He had a poor appetitive resulting in losing 40 pounds in the last three months. He had no interests and felt worthless. It was noted that the Veteran experienced passive wishes of not waking up but, according to the examiner, he clearly denied both suicidal and homicidal ideation. However, the Veteran did report two recent occasions where he had violated personal space in an aggressive manner. The examiner opined that the Veteran's depressive disorder resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judging, as well as thinking and/or mood. On mental status examination, the examiner noted that the Veteran's psychiatric symptoms included: depressed mood; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and neglect of personal appearance and hygiene. Also of record are VA treatment records dated through June 2016 as well as medical opinions regarding the Veteran's employability due to his service-connected depressive disorder. The VA treatment records dated through June 2016 show similar findings as noted in the VA examination reports above. As above, in a January 2017 statement from Dr. R.W., the physician reviewed the claims file, to include the VA examination reports discussed above and opined that the Veteran's major depressive disorder was severe enough to prevent him from sustaining gainful employment. Also, in a July 2017 statement from S.B., a vocational consultant, S.B. reviewed the claims file, to include the VA examination reports discussed above and found that the Veteran's emotional symptoms and limitations eliminate his access to sedentary work. After a careful review of the objective medical evidence, the Board finds that the Veteran's depressive disorder has not met, or more nearly approximated, the criteria for a 100 percent rating under the DC 9434 at any point pertinent to this appeal. Initially, the Veteran has not manifested gross impairment of thought processes or communication, or delusions, which are listed as examples of the type, extent, and severity of symptoms warranting a 100 percent schedular rating. There is no lay or medical description of significant impairment of thought process other than occasional suicidal thoughts, without intent. There have been no reports of delusions or hallucinations. Examiners conducting the Veteran's mental status evaluations have consistently described no thought content abnormalities. His communication impairment is limited to flattened affect. Overall, the Board finds that the Veteran has not manifested gross impairment of thought processes or communication, or "persistent delusions." Another factor listed as an example supporting a 100 percent rating is grossly inappropriate behavior, or being a persistent danger of hurting self or others. Other than the physical altercations described in the March 2017 VA examination report, the Veteran has not described those aspects of impairment. He has demonstrated the capability for self-care. He has voiced passive thoughts of suicide, but expresses no intent. There have been no reported episodes of agitation or disorientation wherein he was a threat to himself. Overall, the Board finds that the Veteran has not manifested a "persistent" threat to himself or others as contemplated by the criteria for a 100 percent rating under the General Formula of Rating. With respect to orientation, there is no lay or medical evidence of disorientation to time or place which is an example supporting a 100 percent rating under the General Formula for Rating. The Veteran has been described as having mild memory and motivation problems. However, there is no lay or medical evidence that the Veteran's psychiatric status is or has been so severe at any point pertinent to this appeal that he has demonstrated memory loss for names of close relatives, his occupational status or his own name which is another example supporting a 100 percent rating under the General Formula for Rating. The Board has examined all the factors and evidence to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating at any time pertinent to this appeal. However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the examiner's assessments of the Veteran's overall psychological, social and occupational functioning, the Board must conclude that the Veteran's major depressive disorder has not met or more closely approximated the criteria for a 100 percent rating at any relevant time. The Veteran can efficiently converse with the VA examiners, and can generally manage his daily activities on his own. He is not psychotic or out of touch with reality. Overall, his major depressive disorder is not shown to manifest the type, extent and severity of symptoms demonstrating "total occupational and social impairment" within the meaning of the rating schedule at any point pertinent to this appeal. The Board finds that total occupational and social impairment is not shown. In so holding, the Board has generally found the statements and testimony of the Veteran to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation. However, even when taking into account this testimony, the Board finds that the criteria for a rating greater than 70 percent have not been met at any time pertinent to this appeal. To the extent that the descriptions provided by the Veteran can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the VA physicians who have greater expertise and training than the Veteran in evaluating the extent and severity of a psychiatric disability. Accordingly, the Board finds that the evidence does not support the assignment of a higher rating for the Veteran's major depressive disorder. Furthermore, neither the Veteran nor representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. at 366. V. TDIU The Veteran generally contends that he is unable to maintain employment due to his service-connected disabilities. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a claimant does not meet the aforementioned criteria, a total disability rating may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran is service-connected for major depressive disorder, rated 70 percent disabling; chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy with intervertebral disc syndrome; right sided lumbar radiculopathy in the L5-S1 nerve root, rated 20 percent disabling; diabetes mellitus, type II., rated 20 percent disabling; left ankle ligament sprain, rated 10 percent disabling; and scar, residuals of surgery associated with chronic lumbosacral strain with herniated disc, status post right L5 hemilaminectomy and discectomy with intervertebral disc syndrome, rated noncompensable. The Veteran's combined rating for compensation purposes is 90 percent. 38 C.F.R. § 4.25. Therefore, he meets the threshold criteria for TDIU. 38 C.F.R. § 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. As above, in a January 2017 statement from Dr. R.W., the physician reviewed the claims file, to include the VA examination reports discussed above and opined that the Veteran's major depressive disorder was severe enough to prevent him from sustaining gainful employment. Also, in a July 2017 statement from S.B., a vocational consultant, S.B. reviewed the claims file, to include the VA examination reports discussed above and found that the Veteran's service-connected lumbar spine disability limits the Veteran to sedentary work and that the Veteran's emotional symptoms and limitations eliminate his access to sedentary work. S.B. opined that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected depression, L5-S1 radiculopathy, lumbosacral strain, and diabetes mellitus, type II, and that the record supported this finding as far back as the date of filing. Based on the foregoing, the Board finds that the medical evidence supports a finding that the Veteran's service-connected disabilities make him unemployable. Specifically, the evidence suggests that the Veteran's service-connected lumbar spine disability impacts his ability to maintain physical employment and his service-connected major depressive disorder impacts his ability to maintain sedentary employment. Therefore, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability and, therefore TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. ORDER As the reduction of the 40 percent rating for chronic lumbosacral strain with herniated disc, status post right l5 hemilaminectomy and discectomy is found to be void ab initio, the claim for restoration of the 40 percent rating, from July 1, 2013, is granted. An effective date of February 3, 2011, and no earlier, for the assignment of an initial 70 percent disability rating for service-connected major depressive disorder is granted, subject to the laws and regulations governing the payment of monetary awards. An disability rating greater than 40 percent for chronic lumbosacral strain with herniated disc, status post right l5 hemilaminectomy and discectomy is denied. An initial disability rating greater than 70 percent for major depressive disorder is denied. A TDIU is granted. ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs