Citation Nr: 18146098 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-24 149 DATE: October 30, 2018 ORDER A rating in excess of 10 percent for Meniere’s disease based on symptoms of tinnitus is denied. Beginning August 31, 2016, a separate evaluation of 30 percent for Meniere’s disease based on symptoms of dizziness under Diagnostic Code 6204 is granted. A staged rating in excess of 30 percent for major depressive disorder prior to September 1, 2016, is denied. A staged rating in excess of 70 percent for major depressive disorder since September 1, 2016, is denied. REMANDED Entitlement to a rating in excess of 40 percent for L5-S1 herniated disc status post laminectomy (low back disability) is remanded. Entitlement to a staged rating in excess of 10 percent for sciatica of the left lower extremity prior to October 25, 2017, is remanded Entitlement to a staged rating in excess of 20 percent for sciatica of the left lower extremity since October 25, 2017, is remanded Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to September 1, 2016, is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s Meniere’s disease more nearly approximated symptoms manifested by recurrent tinnitus. 2. Beginning August 31, 2016, the Meniere’s disease was manifested by dizziness with unsteadiness. 3. Prior to September 1, 2016, the Veteran’s major depressive disorder more nearly approximated symptoms productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood with crying bouts, irritability, nervousness, ruminations, obsessive thoughts, restlessness, and being socially withdrawn. 4. Since September 1, 2016, the Veteran’s major depressive disorder more nearly approximated symptoms productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for Meniere’s disease based on symptoms of tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.87, Diagnostic Code 6260 (2018). 2. Beginning August 31, 2016 a separate 30 percent evaluation for symptoms of dizziness associated with Meniere’s disease is granted. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.87, Diagnostic Code 6204 (2018) 3. The criteria for a staged rating in excess of 30 percent for major depressive disorder prior to September 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2018). 4. The criteria for a staged rating in excess of 70 percent for major depressive disorder since September 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had active service from July 1979 to October 1979 with additional confirmed active duty for training in May 1988. The Board notes that the TDIU issue was raised in prior rating decisions, and was granted since September 1, 2016; however, the issue has been staged to address the prior rating period that is still part of the current appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability rating—whether expressly raised by a Veteran or reasonably raised by the record—is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Increased Rating Claims As background, the Veteran’s claim for total disability due to individual unemployability was received by VA on March 7, 2012. As a result, all of the Veteran’s service-connected disabilities were reevaluated for compensation purposes. The Board has also considered the history of the Veteran’s disability prior to the rating period on appeal to see if it supports a higher rating during the current rating period. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to a rating in excess of 10 percent for Meniere's disease, claimed as vertigo and loss of balance. The Veteran contends that his service-connected Meniere’s disease (claimed as vertigo and loss of balance) warrants a higher rating than currently assigned under 38 C.F.R. § 4.87, Diagnostic Code 6205-6260 (10 percent, effective March 16, 2011). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Under Diagnostic Code 6205, Meniere’s disease, a 30 percent disability rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a 100 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205. Note 1 to Diagnostic Code 6205 indicates that Meniere’s disease can be rated by separately rating vertigo under Diagnostic Code 6204 for dizziness and/or staggering, Diagnostic Code 6100 for hearing impairment, and Diagnostic Code 6260 for tinnitus, and applying the method which results in a higher overall evaluation (but ratings for hearing impairment, tinnitus, or vertigo are not to be combined with an evaluation under Diagnostic Code 6205). 38 C.F.R. § 4.87, Diagnostic Code 6205. Therefore, in examining the Veteran’s disability, the Board will consider not only Diagnostic Code 6205, but also Diagnostic Code 6204 (peripheral vestibular disorders), Diagnostic Code 6260 (tinnitus, recurrent), and 38 C.F.R. § 3.385, Diagnostic Code 6100 (hearing loss), in order to determine the highest overall evaluation to which the Veteran is entitled. Under Diagnostic Code 6204, peripheral vestibular disorders, a 10 percent disability rating is warranted for occasional dizziness; and a 30 percent rating is appropriate for dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. The note associated with Diagnostic Code 6204 states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under Diagnostic Code 6204. The term “staggering” is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster’s New College Dictionary, 3rd ed., at 1099. Under Diagnostic Code 6260, a maximum 10 percent disability rating is warranted for recurrent tinnitus. The applicable DC for hearing impairment is DC 6100. 38 C.F.R. § 4.85. The diagnostic criteria associated with DC 6100 do not list any specific symptoms or functional effects. 38 C.F.R. §§ 4.85, Table VI, Table VIA, Table VII, 4.86; see also Doucette v. Shulkin, 28 Vet. App. 366, 367 (2017). Rather, hearing loss is evaluated through the mechanical application of a veteran’s audiometric test results to the rating tables. Doucette, 28 Vet. App. at 367, citing Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule utilizes three tables to evaluate hearing impairment; Tables VI, VIA, and VII. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining Roman numeral designations for the level of hearing impairment in each ear. 38 C.F.R. § 4.85 (e). Roman numeral designations are derived from Table VI or VIA. 38 C.F.R. §§ 4.85 (b), (c). Table VI is based on a combination of puretone threshold average and speech discrimination percentage. 38 C.F.R. § 4.85 (b). The Roman numerals range from I to XI. A higher Roman numeral is assigned based on a combination of a higher puretone threshold average and a lower speech discrimination percentage. If the use of speech discrimination is not appropriate, then Table VIA is the appropriate source of the Roman numeral designation, which is based solely on puretone threshold average. 38 C.F.R. § 4.85 (c). Puretone threshold average is the average of the puretone thresholds at the 1000, 2000, 3000, and 4000 Hertz frequencies. 38 C.F.R. § 4.85 (d). The Veteran received a VA examination in October 2012. The examiner could not render an opinion because he said the evidence of record did not point to the Veteran having a valid diagnosis for Meniere’s disease. VA treatment records from August 2014 show that the Veteran denied having any dizziness, tinnitus, vertigo, or hearing loss. Other VA treatment records from April and October 2015 as well as April and September 2016 showed normal studies of the Veteran’s peripheral and central vestibular systems. On VA examination in August 2016, the Veteran endorsed increased vertiginous episodes with positional changes over the past two to three years and progressive hearing loss. He also reported that the spinning sensation increased when bending forward. The examiner noted a prior diagnosis for peripheral vestibular disorder and that the Veteran currently experienced tinnitus symptoms more than once weekly for over 24 hours and symptoms of vertigo more than once weekly for less than one hour. The examiner also reported that the Veteran had a history of otitis media in the past and some hearing difficulties. Physical examination revealed nystagmus and dizziness sensation with the Veteran’s head tilted back. The Veteran’s gait was noted to be unsteady and that he walked with a cane. Romberg testing was reported as abnormal or positive for unsteadiness. Diagnostic testing revealed bilateral hearing within normal limits up to 3000 hertz with mild sensorineural hearing loss at the higher frequencies, which showed 35 decibels at 4000 hertz for both ears. The average for the 1000, 2000, 3000, and 4000 hertz frequencies in the right ear was 25 decibels and the left ear was 23.75. Speech recognition was 100 percent bilaterally. The Board finds that evaluating the conditions separately will result in a higher overall evaluation. Specifically, he does not meet the DC 6205 criteria for at least a 30 percent rating because he has not been shown to have, at the least, a hearing impairment with attacks of vertigo less than once a month, with or without tinnitus. As noted above, the Veteran has frequently denied having hearing loss, and even during the August 2016 VA examination during which he reported decreased hearing, testing did not reflect a hearing impairment for VA purposes. Further applying the puretone threshold and speech recognition scores to Table VI would result in a Roman Numeral of I bilateral which would result in a noncompensable rating. As noted above the condition is currently rated as 10 percent disabling under 6260 for tinnitus. The Veteran does not meet the DC 6260 criteria for a higher rating than 10 percent for tinnitus as this is the maximum schedular rating available and is adequate to rate the Veteran’s disability based on the evidence of record. The Veteran has not described any symptoms associated with the tinnitus that are not contemplated by the current diagnostic criteria. For these reasons, the Board finds referral for consideration of an extra-schedular evaluation is not warranted. However, he does meet the DC 6204 criteria for a 30 percent rating based on occasional dizziness since August 31, 2016. The August 2016 VA examination reflected complaints of dizziness. Additionally, the Veteran was noted to need a cane and have an unsteady gait and a positive Romberg test. The Board finds this is akin to occasional staggering. Staggering, as set out in the dictionary definition noted above, includes standing unsteadily. As such the highest schedular rating under 6204 is warranted. The Board finds that the schedular rating criteria is adequate to rate the Veteran’s vertigo, and referral for consideration of an extra-schedular evaluation is not warranted. The Board has also considered whether higher or separate Diagnostic Codes are applicable. The evidence of record indicates that the Veteran’s service-connected Meniere’s disorder is primarily manifested by tinnitus as well as vertigo since August 31, 2016. The Board has considered whether higher ratings are available under other ear-related Diagnostic Codes 6200-6260, but find that his symptoms are clearly accounted for in the separate 10 percent ratings pursuant to DC 6204 and 6260. Thus, other Diagnostic Codes are not for application. Based on the foregoing, the Board concludes that the Veteran’s Meniere’s disease, exhibited by symptoms of vertigo, has been no more than 30 percent disabling for effective August 31, 2016. Furthermore, the Veteran’s Meniere’s disease, exhibited by symptoms of tinnitus, have been no more than 10 percent disabling for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to staged ratings in excess of 30 percent for major depressive disorder prior to September 1, 2016, and in excess of 70 percent thereafter. The Veteran contends that his service-connected major depressive disorder is more severe than the current staged ratings assigned. This psychiatric disability was initially rated at 30 percent, prior to September 1, 2016, under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. During the course of the appeal, the RO granted a 70 percent rating for major depressive disorder, effective September 1, 2016, via a February 2016 rating decision. Major depressive disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9434. Under this General Rating Formula, a 30 percent evaluation is provided for 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 normal conversation), 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, recent events). A 50 percent rating is warranted for 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. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. Finally, a total, or 100 percent, rating is awarded on evidence of 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 VA Secretary, acting within his authority to “adopt and apply a schedule of ratings,” chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that “the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment”). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has been officially released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. The Court added that it does not hold that the Board commits prejudicial error every time the Board references GAF scores in a decision. This appeal was initially certified to the Board in April 2018 and the file was first transferred to the Board in June 2018, so it was pending before the Board after August 4, 2014. As such, the DSM-IV does not apply and the GAF scores will not be discussed. (a.) Staged Rating Prior to September 1, 2016 After a full review of the record, and as discussed below, the Board finds that prior to September 1, 2016, the Veteran’s psychiatric symptoms meet or more nearly approximate the criteria for a 30 percent rating. The evidence of record reflects that the Veteran’s major depressive disorder was productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood with crying bouts, irritability, nervousness, ruminations, obsessive thoughts, restlessness, and being socially withdrawn. On VA examination in October 2012, the examiner continued a diagnosis for major depressive disorder only and did not render any other mental diagnoses. The examiner reported that the Veteran’s mental health symptoms were best summarized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as depressed mood with crying bouts, irritability, nervousness, ruminations, obsessive thoughts, restlessness, and being socially withdrawn. The examiner noted relevant mental health history included the Veteran’s first encounter with a mental health professional in 1989 due to “suicidal ideation.” However, there was no history of psychiatric hospitalizations or parasuicidal behavior. The examiner found that the Veteran was competent to handle his own financial affairs. The examiner also reported that the Veteran’s mental health disability did not prevent his ability to obtain, perform, and secure financially gainful employment. VA treatment records from August 2014 show that the Veteran was briefly hospitalized for four days due major depressive disorder with anxious distress. He identified a major stressor at the time of admittance as problems with a neighbor. The examiner noted that the Veteran responded well to treatment and showed good impulse control. At the time of discharge, the Veteran was noted to be alert, oriented to time, place and person. His mood was euthymic and his affect congruent. His thought processes were logical, coherent and relevant. He reliably denied any suicidal or homicidal ideations. He denied any auditory or visual hallucinations and denied any distress from psychotic symptoms and none were observed at the time of discharge. He was free of any delusional influence that would make him a threat to self or others. His cognition was intact and his insight and judgment were adequate. The Veteran was found able to make decisions independently at present and fully aware of the risks and possible consequences of refusing versus accepting recommended treatment. Based on the foregoing, the Board finds that the Veteran’s major depressive disorder symptoms during this period (e.g. depressed mood with crying bouts, irritability, nervousness, ruminations, obsessive thoughts, restlessness, and being socially withdrawn) were not demonstrated to be so frequent and disabling as to result in, at the least, occupational and social impairment with reduced reliability and productivity. The examiner did not find the Veteran’s symptoms interfere with his routine activities. His speech was not intermittently illogical, obscure, or irrelevant; at all times of record during this period, he was able to converse with the examiner in a clear, coherent manner. He did not exhibit near-continuous panic or depression that affected his ability to function independently, appropriately and effectively. The examiner of record during this time found the Veteran was able to maintain his personal hygiene, finances, and household without assistance. The examiner also commented that the Veteran’s mental health disability did not prevent him from being able to obtain, perform, and secure financially gainful employment. The Board has also considered whether additional Diagnostic Codes are applicable for this period. The evidence of record indicates that the Veteran’s service-connected major depressive disorder was primarily manifested by symptoms of depressed mood with crying bouts, irritability, nervousness, ruminations, obsessive thoughts, restlessness, and being socially withdrawn. There is no medical or lay evidence of mental health symptoms that would not result in the prohibition of pyramiding other Diagnostic Codes. The examiner was also found that the Veteran did not have any other psychiatric diagnosis other than major depressive disorder. Furthermore, the Veteran’s major depressive disorder symptoms are clearly accounted for in the 30 percent rating pursuant to DC 9434. Thus, DC 9201 to 9433 and 9435 to 9521 are not for application. Accordingly, the Board concludes that the Veteran’s major depressive disorder was 30 percent disabling, but no higher, for the period prior to September 1, 2016. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. (b.) Staged Rating Since September 1, 2016 After a full review of the record, and as discussed below, the Board finds that since to September 1, 2016, the Veteran’s psychiatric symptoms do not more nearly approximate a 100 percent rating. The evidence of record reflects that the Veteran’s major depressive disorder was productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. The Veteran received another VA examination in September 2016. The examiner continued the diagnosis for major depressive disorder and found no other mental health diagnoses. The examiner reported that the Veteran’s mental health disability was best summarized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. The Veteran was noted to have rapid speech with poor eye contact. The Veteran gave the examiner a handwritten list of his psychiatric symptoms, which were included as part of the report made by the examiner. The VA examiner found the Veteran was competent and capable of managing his financial affairs. The examiner further reported that the Veteran was “definitely in need of continuous psychiatric treatment in order to prevent further exacerbation of his condition and development of suicidal ideations.” There were no psychotic symptoms found. Subsequent VA treatment records show the Veteran continued to seek treatment for his psychiatric disability. There are no records showing worsened symptoms other than those documented by the September 2016 VA examination. Based on the foregoing, the Board finds that the Veteran’s documented major depressive disorder symptoms (e.g. depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships ) were not demonstrated to be so frequent and disabling as to result in total occupational and social impairment. The VA examiner during this period did not find the Veteran’s symptoms interfere with his routine activities. At the September 2016 VA examination, the Veteran had rapid speech and poor eye contact. The examiner of record during this time found the Veteran was able to maintain his personal hygiene, finances, and household without assistance. The Board has also considered whether additional Diagnostic Codes are applicable for this period. The evidence of record indicates that the Veteran’s service-connected major depressive disorder major depressive disorder was primarily manifested by the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. There is no medical or lay evidence of mental health symptoms that would not result in the prohibition of pyramiding other Diagnostic Codes. Furthermore, the Veteran’s major depressive disorder symptoms are clearly accounted for in the 70 percent rating pursuant to DC 9434. Thus, DC 9201 to 9433 and 9435 to 9521 are not for application. Accordingly, the Board concludes that the Veteran’s major depressive disorder was 70 percent disabling, but no higher, for the period since September 1, 2016. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. (c.) Additional Considerations The Board has considered the Veteran’s statements of record during each period of the appeal that a higher disability rating is warranted for his psychiatric disability. The Veteran is competent to report symptomatology relating to his major depressive disorder because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Board finds that the question of the severity of his major depressive disorder is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners’ findings that were made during each staged rating period of the appeal. Competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the VA examiners during each period of the appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for L5-S1 herniated disc status post laminectomy (low back disability) is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s low back disability, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. The evidence of record also shows a possible increased worsening of symptoms due to the Veteran’s low back disability. He has more recently endorsed erectile dysfunction and other VA treatment records suggest sensory findings in the right lower extremity which has yet to be addressed by a VA examination. 2. Entitlements to staged ratings in excess of 10 percent for sciatica of the left lower extremity prior to October 25, 2017, and in excess of 20 percent thereafter, and a total disability rating based on individual unemployability due to service-connected disabilities prior to September 1, 2016, are remanded. The claims for increased staged ratings for the left leg sciatica are inextricably intertwined with the claim for a higher rating for a low back disability, as the disability benefits questionnaire for the low back includes questions related to symptoms of radiculopathy. Likewise, TDIU is inextricably intertwined with the granting of higher ratings, and is therefore remanded as well. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his low back disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (Continued on the next page)   To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability alone and discuss the effect of the Veteran’s low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Connally, Counsel