Citation Nr: 18146720
Decision Date: 11/01/18	Archive Date: 10/31/18

DOCKET NO. 16-21 340
DATE:	November 1, 2018
ORDER
A rating in excess of 10 percent for a right foot disability is denied.
An increased 20 percent rating for a lumbar spine disability prior to May 26, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits.
A rating in excess of 40 percent for a lumbar spine disability since May 26, 2016, is denied.
A compensable rating for a lumbar spine scar is denied.
A rating in excess of 10 percent for right lower extremity radiculopathy prior to May 26, 2016, is denied.
A rating in excess of 20 percent for right lower extremity radiculopathy since May 26, 2016 is denied.
A 10 percent rating for neurological manifestations of the left lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits.
A rating in excess of 50 percent for depressive disorder is denied.
A total disability rating based upon individual unemployability (TDIU) prior to March 3, 2015, is denied.
A TDIU from March 3, 2015, to May 26, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits.
FINDINGS OF FACT
1. Throughout the appeal period, the Veteran’s right foot disability has been manifested by moderate symptoms to include pain, weakness, and swelling.
2. Prior to May 26, 2016, the Veteran’s lumbar spine disability was manifested by flexion to greater than 30 degrees, but with ongoing spasms and pain causing frequent flare-ups and restriction of spinal contour.
3. Since May 26, 2016, the Veteran’s lumbar spine disability has not resulted in ankylosis of the spine.
4. Throughout the appeal period, the Veteran’s lumbar spine scar has not been painful or unstable and there is underlying tissue damage.
5. Prior to May 26, 2016, the Veteran’s radiculopathy of the right lower extremity was mild in degree.
6. Since May 26, 2016, the Veteran’s radiculopathy of the right lower extremity was moderate in degree.
7. Throughout the appeal period, the Veteran has suffered from mild neurological manifestations of the left lower extremity secondary to his lumbar spine disability.
8. Throughout the appeal period, the Veteran’s depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as depression, disturbance to motivation and mood, and difficulty establishing and maintaining effective work and social relationships.
9. Prior to March 3, 2015, the Veteran obtained and maintained substantially gainful employment.
10. From March 3, 2015, to May 26, 2016, the Veteran’s service-connected disabilities precluded substantially gainful employment.
CONCLUSIONS OF LAW
1.  Throughout the appeal period, the criteria for a rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.71a, DC 5284.
2. Prior to May 26, 2016, the criteria for an increased 20 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.71a, DC 5243.
3. Since May 26, 2016, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.71a, DC 5243.
4. The criteria for a compensable rating for a lumbar spine scar have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.118, DC 7802.
5. Prior to May 26, 2016, the criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 3.321 (b), 4.25, 4.26, 4.71a, DC 8520.
6. Since May 26, 2016, the criteria for a rating in excess of 40 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 3.321 (b), 4.25, 4.26, 4.71a, DC 8520.
7. Throughout the appeal period, the criteria for a separate 10 percent rating for neurological manifestations of the left lower extremity have been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 3.321 (b), 4.25, 4.26, 4.71a, DC 8520.
8. The criteria for a rating in excess of 50 percent for depressive disorder have not been met. 38 U.S.C. § 1155, 5103, 5107 (2012) 38 C.F.R. § 3.102, 3.159, 4.7, 4.124(a), 4.130, DC 9434.
9. Prior to March 3, 2015, the criteria for a TDIU were not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.
10. From March 3, 2015, to May 26, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from July 1989 to November 1989 and from July 2009 to August 2009.
Increased Rating
Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. 
Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.1. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 
The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 
With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the lumbar spine and cervical spine are each considered a major joint. 38 C.F.R. § 4.45.
1. Right foot disability
The Veteran’s right foot disability has been rated as 10 percent disabling pursuant to Diagnostic Code 5284, which contemplates foot injuries. Under Diagnostic Code 5284, a moderate foot injury warrants a 10 percent rating, a moderately severe foot injury warrants a 20 percent rating, and a severe foot injury warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5284.
The Board finds that an increased rating is not warranted. On June 2011 VA examination, the Veteran reported constant pain and swelling in the right foot that was worse with activity. He also experienced fatigue related to the foot injury. Physical examination showed a normal gait. There was no abnormality of the foot such as callosities or unusual shoe wear pattern. The right ankle was normal. Range of motion of the right foot was normal. The examiner found no diagnosis of a current right foot disability because there was no current pathology. On May 2016 VA examination, the Veteran reported pain on weightbearing and sometimes swelling of the foot. Physical examination resulted in a finding of no abnormality of the right foot. The severity of the right foot disability based upon interview with the Veteran was assessed as moderate in severity. X-ray examination showed mild tarsal arthropathy.
Given the above, and following a review of the VA and private treatment records, the Board finds that a rating in excess of 10 percent is not warranted. Despite a lack of objective findings of a right foot abnormality or disability, the Veteran has reported subjective symptoms of pain and swelling, for which he has been awarded a 10 percent rating. Absent more severe physical findings on examination or in the treatment records, the Board does not find that a moderately severe foot injury has been demonstrated. The Board finds no other diagnostic code that would provide for a higher rating for the Veteran’s symptoms, as they are currently contemplated under DC 5284.
2. Lumbar spine disability
The Veteran’s lumbar spine disability is currently rated as 10 percent disabling prior to May 26, 2016, and as 40 percent disabling thereafter, under DC 5243 which pertains to intervertebral disc syndrome. 38 C.F.R. § 4.71a, DC 5243. 
Intervertebral disc syndrome is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Relevantly, this formula provides a rating of 20 percent for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A rating of 60 percent for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Note (1).
The Veteran’s claim can also be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under that criteria, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the lumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.
For VA compensation purposes, 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2.
In this case, prior to May 26, 2016, the Board finds that an increased 20 percent rating for a lumbar spine disability is warranted. In so finding, the Board has considered the evidence in the VA and private treatment records documenting the Veteran’s reports of back pain that was often 8/10 to a 10/10. These records also demonstrate reports of ‘debilitating’ back pain, as well as spasms that resulted in a changed forward flexed posture. The Veteran reported that getting up from sitting would cause him a flare in back pain. Based upon the significant back pain that is evident in these records, and the objective findings of change to spinal contour related to back spasms on flare up, the Board finds that the higher 20 percent rating better contemplates the Veteran’s disability picture. However, these records, as well as the June 2014 VA examination, do not document the symptoms contemplated by the next higher 40 percent rating. On June 2014 VA examination, the Veteran had forward flexion to 65 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to greater than 30 degrees. On repetitive testing, he was able to reach these ranges of motion. There was pain on movement. The remainder of the records also do not document severely reduced flexion to 30 degrees or less. The Veteran has not requested that any further records related to his claim be obtained. Accordingly, the Board finds that a 40 percent rating is not warranted for this period of time.
Since May 26, 2016, a rating in excess of 40 percent for a lumbar spine disability is not warranted. Although the Veteran is currently in receipt of the maximum schedular disability rating available for the low back based on limited motion, and not ankylosis, it is necessary to consider whether additional functional loss due to pain and weakness on use results in the disability being comparable to ankylosis to the degree warranting a higher evaluation. The Board finds that it does not. In this regard, the Board acknowledges that the Veteran’s low back has at times shown significant impairment on range of motion and after completing activity. However, the Board does find that such retained range of lumbar spine motion is not comparable to ankylosis. Thus, while the rating schedule contemplates more severe symptoms of loss of range of motion, the Veteran has not exhibited such impairment to meet the higher rating. The Board further finds that all the symptomatology and impairment caused by the Veteran’s lumbar spine disability is specifically contemplated by the schedular rating criteria. The Veteran’s lumbar spine disability has manifested in painful movement and limitation of motion due to pain, and during flare-ups. The schedular criteria for rating the lumbar spine disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. All the symptomatology and functional impairment described above result from the limitation motion of the lumbar spine, to include as due to pain, stiffness, muscle spasm, and all the symptoms described by the Veteran are contemplated in the schedular rating(s) assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion or muscle spasm or tenderness or antalgic gait, or indirectly as orthopedic factors that limit motion and function. See 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a.
Lastly, the evidence does not reflect that the Veteran has been prescribed bedrest by a physician to the extent necessary to obtain a higher rating at any time during the appeal period pursuant to DC 5243.
 
3. Lumbar spine scar
The Veteran is currently in receipt of a noncompensable rating for his lumbar spine scar.
Diagnostic Code 7801 concerns deep and nonlinear scars. A 10 percent evaluation is warranted for a deep and nonlinear scar that encompasses an area or areas of at least 6 square inches but less than 12 square inches. 
Diagnostic Code 7802 concerns scars that are superficial and nonlinear. A 10 percent rating is warranted for a superficial and nonlinear scar that involves an area or areas of 144 square inches or greater.
Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. If one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Note (2).
Diagnostic Code 7805 provides for other scars to be evaluated by any disabling effects not considered in a rating provided under codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7801-7805.
In this case, the Veteran has a scar following a microdiscectomy. On May 2016 VA examination, the scar was assessed to be 2.8 centimeters by .8 centimeters, however, it was not assessed to be painful or unstable. The evidence does not otherwise suggest that the scar meets the criteria for a compensable rating as outlined above.
4. Neurological manifestations in the lower extremities
When rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 
When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. 
Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve.
First, the Board finds that a 10 percent rating for mild neurological symptoms of the left lower extremity is warranted throughout the appeal period. Specifically, although no radiculopathy or other neurological deficit of the left lower extremity was diagnosed on 2014 or 2016 VA examination, the treatment records document ongoing reports of radiating pain and numbness in the left lower extremity. Therefore, while it is questionable whether the Veteran’s symptoms meet the diagnosis of radiculopathy of the left lower extremity, he has demonstrated neurological-type sensory symptoms that would meet the criteria for a 10 percent rating under DC 8520, such as was documented in January 2011 and August 2016 VA treatment records. However, a higher rating is not warranted, as the two VA examinations of record declined to formally diagnose radiculopathy of the left lower extremity. Muscle strength and sensory examination were within normal range on both VA examinations.
With regard to the right lower extremity, the Board finds that a rating higher than 10 percent prior to May 26, 2016, and 20 percent thereafter, is not warranted. Specifically, prior to the May 2016 VA examination documenting moderate neurological symptoms of the right lower extremity, the record does not demonstrate objective symptoms that were more than mild. The Veteran reported ongoing right lower extremity numbness and pain, however, there was no documentation of moderate loss of muscle strength, sensation, or reflexes. The 2014 VA examination showed normal muscle strength, motor examination, sensory examination, and straight leg raising test. In fact, the VA treatment records documented reports of symptoms more on the left side than the right side. 
However, on May 26, 2016, VA examination, the Veteran was shown to objectively suffer from moderate neurological symptoms of the right lower extremity, and was diagnosed with such accordingly. Severe symptoms, such as atrophy, loss of reflexes, or loss sensation, was not shown. Thus, a rating higher than 20 percent since May 26, 2016, is not warranted. In that regard, the VA treatment records also demonstrate moderate symptoms of the right lower extremity since May 2016, but do not document severe symptoms.
5. Depressive disorder
The Veteran’s depression has been rated as 50 percent disabling under DC 9434. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 
A 70 percent rating is assigned when the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 
A maximum 100 percent rating is assigned when there is total occupational or social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. 
When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118.
In this case, the Board finds that a rating higher than 50 percent for the Veteran’s depressive disorder is not warranted. Significantly, on June 2014 VA examination, the Veteran was assessed to suffer from occupational and social impairment due to mild or transient symptoms. Mental status examination was within normal limits and the Veteran did not exhibit symptoms accounted for by the higher 70 percent rating. Specifically, his speech and behavior were within normal limits, there was no evidence of delusions, he did not report panic attacks, and he was able to function independently. His insight and judgment were intact. While he exhibited a depressed mood, he was fully oriented and attention and concentration were intact. On June 2016 VA examination, the Veteran was assessed to suffer from the same degree of occupational and social impairment as in 2014. He was noted to manage his depression with medication. He reported having had a suicidal thought in the past year. Again, his mental status examination was within normal limits. A psychiatric test had indicated severe depression, however he presented with moderate depression on examination. The Veteran was independent in his activities and was hoping to rejoin the law enforcement workforce. The examiner reviewed the VA treatment records and noted episodes of depression and anxiety when stressed. 
The VA treatment records dated during the appeal period demonstrate moderate depressive symptoms in line with a 50 percent rating. In February 2011, the Veteran exhibited a depressed mood and loss of interest in activities, decreased sleep with early awakening, and irritability and restlessness. He mentioned thoughts of dying but denied any suicidal plans or intent. He exhibited some severe symptoms such as crying and loss of energy, some moderate symptoms such as self-dislike and loss of interest, and mild symptoms such as sadness and guilt feelings. Mental status examination showed stable but moderately dysphonic mood. He was oriented and cooperative. His speech was normal. His thought process was usual. His insight and judgment were good. In March 2016, the Veteran reported a decrease in his depressive symptoms. He reported that his back pain was his primary stressor.
Following a review of the evidence, the Board finds that a rating in excess of 50 percent is not warranted. For one, both the 2014 and 2016 VA examiners assessed the Veteran’s current social and occupational functioning level to be that of transient symptoms or mild symptoms. That level more closely contemplates the 30 or 50 percent rating criteria. Moreover, the Veteran has not displayed symptoms contemplated by the 70 percent rating. His behavioral assessment has been within normal limits and he is independent. He was shown on examination and in the records to have relationships both within his family and outside of the home. While he does suffer from periods of more severe depression resulting in sleep impairment, irritability, and feelings of low self-worth, he also able to effectively communicate, demonstrate impulse control, and tend to his personal hygiene. When balancing the Veteran’s symptoms and considering his symptoms throughout the appeal period, the Board finds that the current 50 percent rating most approximately contemplates his level of depression. The current rating balances his episodes of more severe feelings of depression, with otherwise average/normal functioning and ability to communicate.
6. TDIU 
TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16 (a), (b). A TDIU award of benefits itself, may be granted where the schedular rating is less than total, but when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
By this decision, the Veteran has been awarded a 10 percent rating for left lower extremity radiculopathy and a higher 20 percent rating for his lumbar spine disability. Thus, for the period in question, prior to May 26, 2016, he met the criteria for consideration of a TDIU on a schedular basis. Specifically, he was in receipt of a 50 percent rating for depressive disorder, a 20 percent rating for a lumbar spine disability, 10 percent ratings for both the right and left lower extremities, and a 10 percent rating for a right foot disability, combing to a 70 percent rating.
The Board finds that the award of TDIU, currently effective May 26, 2016, should date back to March 3, 2015, when the Veteran’s employment was terminated. In April 2016, the Veteran’s employer confirmed that the Veteran’s employment was terminated on March 3, 2015, due to his back problems. The employer stated that until that date, the Veteran worked 43 hours per week. On his December 2015 claim for a TDIU, the Veteran also reported that he worked until March 2015, stating that he worked 40 hours per week prior to his termination of employment. Thus, the Board finds that the Veteran was gainfully employed prior to his March 2015. The Board has considered the Veteran’s statements that he had to cut his hours back to part-time in October 2014, and thus his employment since that date was marginal. However, part-time employment does not in and of itself equate to marginal employment. For that matter, there is no evidence in the record that the Veteran’s work was part-time or marginal in nature. Rather, his employer verified employment of 43 hours per week until employment termination, matching the Veteran’s report of working 40 hours per week on his claim for a TDIU. While the Veteran’s employer might have transferred the Veteran to a light duty position in October 2014, there is no indication in the record that such resulted in significantly reduced pay or hours, or that such was served in essentially protected environment. By nature of the Veteran’s position served in a town or city police department, it is reasonable to conclude that he was accommodated as defined by governing procedure. The evidence does not suggest that the Veteran’s terms of employment were outside of that norm or somehow sheltered despite his shift to sedentary-type tasks. Accordingly, based upon the above, the Board finds that the Veteran was gainfully employed prior to March 3, 2015, and thus a TDIU is not established prior to that time.
 
M.E. Larkin
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Erdheim, Counsel