Citation Nr: 18149946 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-04 222 DATE: November 14, 2018 ORDER Entitlement to a noninitial disability rating in excess of 50 percent for a service-connected lumbar spine disability is denied. Entitlement to an initial disability in excess of 10 percent for service-connected right lower extremity radiculopathy is denied. Entitlement to a noninitial disability rating in excess of 30 percent for a service-connected psychiatric disability is denied. Entitlement to an effective date earlier than July 29, 2010 for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. During the appellate period, the Veteran has never experienced ankylosis of the entire spine or incapacitating episodes due to his lumbar spine disability requiring bed rest prescribed by a physician and treatment by a physician. 2. Throughout the appellate period, the Veteran’s right lower extremity radiculopathy is most appropriately characterized as mild incomplete paralysis. 3. Throughout the appellate period, the Veteran’s psychiatric disability most closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. In an October 2005 rating decision, the Regional Office (RO) denied entitlement to a TDIU; the Veteran did not appeal that decision or submit new and material evidence within one year, and it is final. 5. The Veteran sought increased ratings for his service-connected lumbar spine and psychiatric disabilities in June 2008, which were denied in an October 2008 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year and it is final. During the pendency of those claims, no probative evidence was submitted indicating that the Veteran’s service-connected disabilities rendered him individually unemployable. 6. There were no informal or formal claims, or written intent to file a claim, for a TDIU dated after the October 2008 denial and prior to the July 29, 2010 claim for increased ratings and individual unemployability raised under Rice v. Shinseki, 22 Vet. App. 447 (2009), and it was not factually ascertainable in the one year prior to this claim that the Veteran was unable to secure or follow substantially gainful employment due solely to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a noninitial disability rating in excess of 50 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5243. 2. The criteria for entitlement to an initial disability in excess of 10 percent for service-connected right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to a noninitial disability rating in excess of 30 percent for a service-connected psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434. 4. The criteria for entitlement to an effective date earlier than July 29, 2010 for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400(o), 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1967. These matters come before the Board of Veterans’ Appeals on appeal from January 2011 and July 2012 rating decisions issued by a RO of the United States Department of Veterans Affairs (VA). In the January 2015 substantive appeal, the Veteran waived his right to a Board hearing. The undersigned Veterans Law Judge has been assigned to adjudicate this appeal pursuant to 38 C.F.R. § 19.3(a). Evidence received since the December 2014 Statement of the Case (SOC) was either submitted by the Veteran without a request for initial RO consideration or is not substantive or relevant to the claims adjudicated herein. Thus, the Board may proceed with appellate consideration. 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). Neither the Veteran nor his attorney has raised any issues with VA’s duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In the January 2011 rating decision, the RO granted entitlement to service connection for right lower extremity radiculopathy with an evaluation of 10 percent, effective July 29, 2010. In June 2011, the Veteran filed a timely notice of disagreement (NOD), in relevant part, challenging the “assigned evaluation[]” for his service-connected right lower extremity radiculopathy. In this NOD, the Veteran did not challenge the effective date for the award of service-connection for right lower extremity radiculopathy, and he did not file any other statements within the one-year period following the mailing of the January 2011 rating decision that could be reasonably interpreted as an NOD for the effective date assigned to this service-connected disability. Consequently, the January 2011 rating decision is final as to the effective date assigned for the grant of entitlement to service connection for right lower extremity radiculopathy. 38 C.F.R. §§ 20.302, 20.1103. For the first time, in the January 2015 substantive appeal, the Veteran argued that he was entitled to an earlier effective date for the grant of entitlement to service connection for right lower extremity radiculopathy. Since the January 2011 rating decision became final with respect to the effective date assigned, the Veteran’s challenge is untimely, and the Board does not have jurisdiction to consider the merits of this claim. There is no free-standing claim for an earlier effective date, and, ordinarily, once an effective date has become final, a veteran’s only recourse is to have the final decision revised on the grounds of clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board lacks jurisdiction to consider a CUE challenge in the first instance; and since such a CUE theory has not been officially filed with the appropriate office, or received since the January 2011 rating decision became final to this issue, the undersigned declines to refer the matter at this juncture. Jarrell v. Nicholson, 20 Vet. App. 326, 332-333 (2006). It appears the attorney is arguing a separate rating for radiculopathy should have been assigned in 1999, but he has not specifically raised a CUE motion. If the Veteran wishes to pursue a claim for an earlier effective date for the grant of service connection for right lower extremity radiculopathy, he must file a motion with the RO requesting revision of the effective date assigned for this disability based on CUE. 1. Entitlement to a noninitial disability rating in excess of 50 percent for a service-connected lumbar spine disability is denied. The Veteran is currently in receipt of a 50 percent disability rating for a service-connected lumbar spine disability under Diagnostic Code 5235-5243. The Veteran has been in receipt of this evaluation since July 8, 1999. As the RO explained in the January 2011 rating decision, the Veteran’s rating was originally assigned under rating criteria that are no longer in effect. The Veteran filed his increased rating claim in July 2010. The current criteria for rating disabilities of the spine have been in effect since September 26, 2003 and apply to the Veteran’s appeal. See 68 Fed. Reg. 51454-01 (August 27, 2003); 38 C.F.R. § 4.71a. In the December 2014 Statement of the Case (SOC), the Veteran was denied a non-initial disability rating in excess of 50 percent for his service-connected lumbar spine disability. In January 2015, he filed a substantive appeal on VA Form 9, where he checked the box indicating he wished to appeal all the issues on the SOC. However, in a type-written letter attached to the VA Form 9, the Veteran indicated that he wished to withdraw his appeal for a higher disability rating for his service-connected lumbar spine disability. In correspondence received in December 2015, the Veteran reiterated that he no longer wished to pursue an appeal regarding an increased rating for his service-connected lumbar spine disability. In August 2018, the Board requested that the Veteran clarify which issues he was withdrawing from appellate consideration. The Veteran responded in September 2018, but did not identify his claim for an increased rating of the lumbar spine as withdrawn. Given the ambiguity in the record, the Board concludes that the Veteran has not clearly withdrawn the appeal for a higher disability rating for his service-connected lumbar spine disability. Consequently, the Board shall continue with a merits decision on this claim.   To warrant a disability rating higher than the currently assessed 50 percent evaluation, the evidence must demonstrate that the Veteran experiences unfavorable ankylosis of the entire spine, or intervertebral disc syndrome based on incapacitating episodes having a total duration of at least 6 weeks in the preceding 12 months (prescribed and requiring treatment by a physician). See 38 C.F.R. § 4.71a. At no point during the appellate period has the Veteran experienced ankylosis of the entire spine (the August 2011 VA examiner denied the presence of lumbar spine ankylosis) or exhibited incapacitating episodes due to his lumbar spine requiring physician prescribed bed rest, yet alone 6 weeks’ worth of bed rest. Consequently, the Veteran is not entitled to a disability rating in excess of 50 percent for his service-connected lumbar spine disability under 38 C.F.R. § 4.71a during the appellate period. The Veteran’s appeal is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy is denied. The Veteran has been in receipt of a 10 percent disability for service-connected right lower extremity radiculopathy since July 29, 2010. He seeks a higher disability rating for the entire appellate period. In the January 2015 substantive appeal, the Veteran’s attorney argues that the Veteran’s right lower extremity radiculopathy is moderate in degree. He further asserts: As a subjective evaluation, a mild disability would be one that is temporary in nature and minimal in severity, a disability that hurts and notably so from a concentration perspective, but one that will in time resolve. For this veteran, it is a burning or even stabbing nerve pain with some numbness and tingling to various aspects of the leg – a disability hardly suitable for a ‘mild’ designation. The Board finds nothing in the rating criteria or binding case law that sets forth the delineation between mild and moderate radiculopathy as set forth by the attorney’s argument. More importantly, the most probative evidence preponderates against a higher rating throughout the appellate period, as set forth in the analysis below. The Veteran’s right lower extremity radiculopathy is rated under Diagnostic Code 8520. This diagnostic code provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity. A 20 percent rating for moderate incomplete paralysis of the sciatic nerve in either lower extremity. A 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The words “slight,” “moderate” and “severe” as used in Diagnostic Code 8520 are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “moderate” by VA examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Following a thorough review of the evidence, the Board finds that the Veteran’s right lower extremity radiculopathy is best characterized as resulting in mild incomplete paralysis commensurate with his currently assessed 10 percent rating for the entire appellate period. The Veteran’s attorney has argued that the Veteran’s right lower extremity radiculopathy is manifested by a burning sensation, stabbing pain, and numbness. Initially, the Board notes that the Veteran is competent to report symptoms as he perceives them through the senses; however, he is not competent to attribute these symptoms to a specific diagnosis, as he is without the requisite medical training to assess a medically complex matter such as the etiology of his perceived symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived using the five senses); See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n. 4 (2007). The Veteran’s medical records fail to document right lower extremity radiculopathy that is more than mild in severity. In fact, the Veteran’s private and VA medical records frequently document normal neurologic examinations inconsistent with the Veteran’s reported symptomatology. In October 2009, the Veteran was seen by VA for lumbar spine pain moving to the right leg. A lumbar back exam revealed no tenderness to palpation and negative straight leg lift test. Neurologic examination revealed normal motor and sensory findings. An electromyogram performed later that month was normal and showed “no evidence for right lumbosacral radiculopathy.” In March and July of 2010, the Veteran was examined by VA for continued lumbar complaints. The Veteran was assessed with a mechanical lumbar spine issue, described as “nonradic,” meaning it did not result in radiculopathy. In a May 2010 private treatment record, the Veteran was seen for complaints of “right lumbar back pain, radiating to right abdomen.” The Veteran’s neurologic examination was described as “WDL” meaning “within defined limits,” and was otherwise negative for radiculopathy. This evidence fails to demonstrate the presence of objectively verifiable right lower extremity radiculopathy, yet alone symptoms more severe than a mild characterization. At the August 2011 VA examination, the examiner conducted a thorough evaluation of the Veteran’s nervous system. Review of the lower extremities was clinically normal. The Veteran exhibited normal coordination; detailed reflex examination of the knee and ankle jerk showed normal findings; light touch sensory examination was normal; and detailed motor examination showed active movement against full resistance in the lower extremities. The Veteran’s attorney argues the Veteran is entitled to a 20 percent rating due to moderate paralysis of the sciatic nerve based on the results of the September 2010 VA examination because the Veteran reported that his “flare-ups can last anywhere from two weeks to several months” and because the examiner used the word “moderate” three times in the VA examination report. The Board is not persuaded. It is clear from the September 2010 VA examiner’s report that he found the Veteran’s lumbar disability and radiculopathy—collectively—to be of moderate severity. Reading the examination report with the appropriate context, there is no evidence proving the Veteran’s right lower extremity radiculopathy alone was of moderate severity, as alleged by the Veteran’s attorney. Regarding the Veteran’s report to the September 2010 VA examiner that his lumbar spine disability was manifested by “shooting radiating pain into the groin on the right side and down the back of the right leg” including flare-ups lasting anywhere from two weeks to several months, the Board finds the Veteran’s statements competent as they describe his symptoms as perceived through his senses. Layno, 6 Vet. App. at 469. Nevertheless, the Board does not find the frequency and severity of these reported symptoms to be credible when weighed against the other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board finds that the Veteran’s claimed level of disability due to his service-connected right lower extremity radiculopathy is inconsistent with the objective medical evidence. The Board observes that the only positive findings of right lower extremity radiculopathy of record are from the September 2010 VA examination. The examiner found that the Veteran’s lower extremity motor and sensory function was intact, with only slight weakness with dorsiflexion and rocking back on his heels on the right side. The examiner found that sensation was intact throughout the L3-S1 dermatome distribution; normal reflexes at L4 bilaterally; normal reflexes at S1 on the left; and a slight deficit at S1 on the right. The Veteran had a positive right-sided straight leg raise test and a positive pelvic rock test, but could rock back and forth on his heels, go up on his toes, and perform a partial squat. These findings are commensurate with only a mild degree of neurological deficit. The Veteran’s private and VA treatment records do not demonstrate objective evidence of right lower extremity radiculopathy; yet alone symptoms that could be characterized as worse than mild in severity. The Veteran has never reported symptomatology as severe as he described in his September 2010 VA examination to any of his treating providers. The United States Court of Appeals for Veterans Claims (Court) has determined the Board may properly assign more probative value to lay statements in contemporaneous medical records than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Here, the Veteran’s statements of severe right lower extremity radiculopathy issued to the September 2010 VA examiner appear to be exaggerated when compared to symptoms reported to his routine private and VA health providers. As such, the Veteran’s lay statements provided to the September 2010 VA examiner and cited by the Veteran’s attorney in the January 2016 appellate brief are not credible. In sum, the appellate record is devoid of probative evidence tending to show the Veteran’s service-connected right lower extremity radiculopathy has resulted in worse than a mild degree of incomplete paralysis. Neither the Veteran nor his attorney has argued that that the Veteran’s disability is more appropriately rated under any other Diagnostic Code besides 8520. In light of the above analysis, the Veteran’s appeal for a higher disability rating for the entire appellate period is denied. 3. Entitlement to a disability rating in excess of 30 percent for a service-connected psychiatric disability is denied. The Veteran is currently in receipt of a 30 percent disability rating for his service-connected psychiatric disability under 38 C.F.R. § 4.130, Diagnostic Code 9434 for the duration of the appellate period. His July 2010 informal claim for a noninitial disability rating was denied, and he seeks a higher disability rating for the entire appellate period. In November 2009, the Veteran attended a VA mental health management visit. The Veteran reported that he had been experiencing troubled sleep and disturbing dreams. He endorsed frequently re-experiencing disturbing events from his military service, anhedonia, dysphoric mood, decreased motivation, periods of hopelessness, foreshortened future, irritability, a feeling of jumpiness, and periods of emotional numbness. Mental status examination results documented that the Veteran was casually and neatly dressed; he was conversant, alert, and fully oriented; his speech was normal and without pressure or latencies; his thoughts were logical and occasionally tangential, but redirectable; there was no evidence of psychosis; his affect was restricted and his mood was dysphoric and anxious; he endorsed periods of hopelessness with passive suicidal ideations, but denied current ideation, intents, or plans, and had a safety plan in place; and his judgment and insight were intact. In July 2010, the Veteran was seen by a private licensed professional counselor where he reported poor sleep hygiene, angry outbursts, depressed mood, mild memory/concentration deficits, hypervigilance, and exaggerated startle response. Upon mental status examination, the Veteran was found to be oriented in all spheres with an appropriate affect; with good insight; no thought disorders, hallucination, or delusions; and no risk for homicide, suicide, or violence. He was shown to have memory and concentration impairment, as well as dissociative symptoms. The Veteran was afforded a VA examination in September 2010 to assess the severity of his service-connected psychiatric disability. Mental status examination revealed that the Veteran appeared clean and cooperative; his speech was soft or whispered; his mood was anxious, agitated, depressed and fearful; his affect was normal; he was oriented to person, time, and place; thought processes/content were unremarkable; he had no delusions; his intelligence was average; and judgment/insight were normal. The examiner documented that the Veteran experienced monthly panic attacks that resolved within the same day. The Veteran was not experiencing suicidal thoughts; his impulse control was described as fair and non-violent; and his remote, recent, and immediate memory were found to be mildly impaired. The Veteran was afforded a second VA examination in August 2011 to assess the severity of his service-connected psychiatric disability. The Veteran reported that he experienced sleep impairment, anhedonia, increased irritability, social withdrawal, and impaired concentration/focus. Following clinical evaluation, the examiner found that the Veteran’s psychiatric disability was characterized by a depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful situations, and impaired impulse control. Viewed collectively, the Veteran’s psychiatric symptoms throughout the appellate period most closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, commensurate with a 30 percent disability rating under 38 C.F.R. § 4.130. The Veteran’s most common psychiatric symptoms have been chronic sleep impairment, depressed mood, anxiety attacks (monthly or less often), and mild memory loss. These symptoms are consistently reported in the clinical VA and private treatment records, as well as the September 2010 and August 2011 VA examinations, and are explicitly contemplated under the rating criteria in 38 C.F.R. § 4.130. The Board acknowledges the psychiatric symptoms listed in the rating criteria are not exhaustive, but are examples of typical symptoms for the listed disability rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, in this instance, the Veteran has only reported psychiatric symptomatology that are specifically considered by the General Rating Formula; thus, reliance on the identified symptomatology for each rating level is appropriate. The evidence preponderates against a finding of occupational and social impairment with reduced reliability and productivity to warrant a 50 percent rating or higher during the appellate period. Although, arguably, the Veteran had disturbances of mood and motivation and short-and-long term memory impairment, which are symptoms under the 50 percent criteria, he did not exhibit symptoms comparable with flattened affect; circumstantial, circumlocutory, or stereotyped speech; more than once a week panic attacks; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. To the contrary, the Veteran’s affect was never described as flattened; his speech was consistently noted as normal; he did not experience weekly panic attacks; and mental status examinations addressing thought content and processing were normal with intact judgment, orientation, and insight. In January 2016 written argument, the Veteran’s attorney highlights issues with the Veteran’s marital and family relationships as warranting a higher disability rating. While the Veteran has exhibited difficulty interacting with employers and occasional familial dysfunction, he has maintained meaningful relationships with his spouse (described by the August 2011 VA examiner as stable and supportive) and child, and the Veteran has retained his ability to attend and volunteer at his local church. These facts preponderate against a rating higher than his currently assessed 30 percent evaluation throughout the appellate period. Regarding impairment of long-and-short term memory, the rating criteria dictates a 50 percent evaluation is warranted in scenarios where a veteran can only retain highly learned material or forgets to complete tasks. In the present matter, the Veteran’s remote and recent memory deficits, as well as concentration deficits, have been described by both VA and private mental health providers as mildly impaired. Indeed, through the course of the Veteran’s VA treatment, his medical record demonstrates an ability to recall prior symptoms, past medical issues and care, and his past employment. The Board finds no probative evidence tending to show the Veteran has experienced a degree of long-and-short term memory loss comparable to retaining only highly learned materials or forgetting to complete tasks. Regarding disturbances of mood and motivation, this symptom, by itself, is not sufficient to warrant a higher 50 percent evaluation. While the lay and medical evidence shows disturbances of mood and motivation, this was typically characterized by infrequent reports of depressed mood and anxiety, as well as fatigue due to chronic sleep impairment, which did not affect the Veteran’s ability to function independently, appropriately, and effectively. In fact, these psychiatric symptoms, which primarily contributed to the Veteran’s reported disturbances of mood and motivation, are explicitly set forth in the 30 percent rating criteria. Consequently, a higher evaluation is not warranted as this symptom (disturbances of mood and motivation) has not resulted in a level of social or occupational impairment contemplated by a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The most probative evidence of record establishes that the Veteran’s psychiatric disability has not been manifested by the symptomatology contemplated by a 70 or 100 percent rating under the criteria set forth in 38 C.F.R. § 4.130 during the appellate period. The evidence does not show that the Veteran’s psychiatric disability has ever resulted in gross impairment in thought processes or communication, to include intermittent illogical, obscure, or irrelevant speech; delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation of time or place; severe memory loss; obsessional rituals; near-continuous panic or depression; neglect of personal appearance; difficulty adapting to stressful circumstances; or an inability to maintain effective relationships. To the contrary, the evidence demonstrates that the Veteran’s appearance was always clean and neat, with an appropriate and cooperative demeanor. He consistently denied delusions and hallucinations, and was found to have normal thought processes/content, orientation to person, place, and time, and normal speech. The Veteran’s memory loss was described as mildly impaired, and there is no evidence proving his cognitive decline was such that he could not remember his own name or the names of family members. His panic attacks were periodic and did not occur more frequently than once per month. Regarding suicidal ideations, the Board notes that the Veteran described passive thoughts of suicide without intent or plan at a November 2009 VA mental health visit, but has otherwise denied suicidal ideations throughout the appellate period. See negative reports of suicidal ideation at the September 2010 and August 2011 VA examinations, as well as negative suicide screenings in November 2010, August 2011, November 2011, and December 2011 VA treatment records. Suffice it to say, an isolated claim of suicidal ideation does not automatically entitle the Veteran to a 70 percent disability rating simply because the phrase “suicidal ideation” is included under that percentage in the rating schedule. 38 C.F.R. § 4.126 (“When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission”). Instead, the Board is compelled to review the totality of the evidence when assigning a disability rating. See 38 C.F.R. § 4.2. This premise was addressed by the Court in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), wherein the Court held that “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas” correlating with a 70 percent evaluation under the rating criteria. Id. at 19 (emphasis added). The key word in the quote above, taken verbatim from the Bankhead decision, is “may” which is merely suggestive. Thus, the Court declined to hold that the presence of suicidal ideations automatically entitles a veteran to a 70 percent evaluation under the rating criteria in every situation. Thus, viewing the evidence as a whole, the record does not show that the Veteran experienced chronic or persistent suicidal or homicidal ideations, which affected his social and occupational functioning to the extent required for a higher rating. He reported a single fleeting and passive suicidal thought, without intention or plan, and with an active safety plan. On all other occasions, he denied suicidal or homicidal ideations. The degree of severity and frequency of the Veteran’s report of suicidality does not warrant a higher evaluation. The Veteran has also reported impaired impulse control manifested by angry outbursts, which is a symptom listed in the 70 percent rating criteria. However, the Veteran’s outbursts were not reported as unprovoked, and did not result in violent behavior. In fact, at the September 2010 VA examination, the Veteran’s impulse control was described as fair and non-violent. In a written argument received in January 2016, the Veteran’s attorney cites the July 2010 private psychology records as demonstrating “unprovoked irritability.” While these records document irritability and anger, they include no indication as to whether these symptoms were the result of provocation. The Veteran’s attorney is simply invoking this vernacular to place the Veteran’s reports within a higher disability rating under 38 C.F.R. § 4.130, and the Board is not persuaded. Moreover, the Board finds no probative evidence of record establishing a degree and frequency of severely impaired impulse control sufficient to warrant a higher disability rating throughout the appellate period. Occasional irritability and anger, unaccompanied by violence, does not amount to symptomology consistent with occupational and social impairment with deficiencies in most areas of life. Lastly, in the January 2015 substantive appeal and the January 2016 appellate brief, the Veteran’s attorney cites evidence from 2007 and 2008 alleging that the Veteran’s psychiatric disability warrants a higher disability. The Board finds that this evidence is outside of the appellate period and is not probative regarding the Veteran’s symptomatology during the relevant time period on appeal. The Veteran filed the noninitial increased rating claim giving rise to this appeal on July 29, 2010. Pursuant to 38 C.F.R. § 3.400(o)(2), the Board may only consider evidence dated one year prior to the filing of the claim, when evaluating entitlement to a higher disability rating. As the cited 2007 and 2008 evidence predates the appellate period, and was already considered and adjudicated in a final October 2008 rating decision, it is not relevant to this appeal. The Veteran’s attorney has also cited evidence allegedly from October 2009, where the Veteran “regularly experienced trigger odors and events when having to engage aggressive students.” This argument actually stems from a November 2009 VA treatment record, where the Veteran “endorse[d] frequent re-experiencing of disturbing events, memories from military service both as daymares and nightmares which can be triggered during his work with aggressive students or with certain sounds or smells.” The Board finds that these reported symptoms are tantamount to chronic sleep impairment and panic attacks (weekly or less often) which are specifically contemplated by the current 30 percent evaluation as set forth in the rating criteria under 38 C.F.R. § 4.130. This isolated treatment record does not support a higher disability rating. In sum, the Board finds that the Veteran’s psychiatric disability most closely approximates the rating criteria for a 30 percent evaluation throughout the entire appellate period. The most probative evidence weighs against a higher disability rating throughout the appellate period, and the Veteran’s appeal is denied. 4. Entitlement to an effective date earlier than July 27, 2010 for the award of a TDIU is denied. In an August 2012 rating decision, the Veteran was granted entitlement to a TDIU effective June 10, 2011. In a NOD received in September 2012, the Veteran requested an earlier effective date for the award of a TDIU. In particular, he argued that the effective date for his TDIU should have been November 7, 2003—the date on which he met the schedular TDIU criteria under 38 C.F.R. § 4.16(a). The Veteran also cited Social Security Administration (SSA) earning statements proving he had minimal income between 2003 and 2006. Upon readjudication in a November 2014 rating decision, the RO granted an earlier effective date of July 29, 2010 for the award of a TDIU. This was the date that the Veteran filed the increased rating claims that gave rise to his claim of individual unemployability under Rice, 22 Vet. App. at 453-55. In the January 2015 substantive appeal and subsequent documents, the Veteran gave conflicting statements as to whether he wished to continue his appeal for an earlier effective date for the award of TDIU. In correspondence received in September 2018, the Veteran confirmed that his appeal of this issue remained in appellate status. As such, the Board will continue with its appellate consideration. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability 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(b)(2) provides an 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.” Thus, “the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.” Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). “Claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). VA amended its regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As this appeal was filed prior to that date, the amendments are not applicable in this instance, and the regulations in effect prior to March 24, 2015 will be applied. The evidence establishes that the increased rating claim giving rise to the TDIU claim currently on appeal was filed with the RO on July 29, 2010. In the November 2014 rating decision, the RO applied 38 C.F.R. § 3.400(o)(1) and Rice, supra, and granted an effective date of July 29, 2010 for the award of a TDIU. Thus, the issue for resolution before the Board is whether the Veteran is entitled to an effective date earlier than July 29, 2010 for his award of TDIU. Relying on the one-year look back provision set forth in 38 C.F.R. § 3.400(o)(2), the Board shall examine the evidence to determine whether the Veteran was entitled to a TDIU in the one-year preceding the filing of his July 29, 2010 increased rating claim. The Board observes that the Veteran satisfied the schedular TDIU criteria during this one-year period; however, the evidence fails to demonstrate that the Veteran was precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities any earlier than the July 29, 2010 date of claim. In support of this conclusion, the Board notes that the Veteran was employed on a part-time basis during this one-year period as a teacher. An earnings statement provided from the SSA shows that the Veteran earned $17,865.55 in 2009 and $14,069.65 in 2010. VA regulations provide that marginal employment exists if a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. In 2009, that amount was $11,161, and in 2010 that amount was $11,344. Therefore, these earning reports show that the Veteran’s earned annual income exceeded the federal poverty threshold during these years, and there is no indication that the Veteran’s employment as a teacher was performed in a sheltered work environment. Thus, the Board concludes that during the one-year period prior to the July 29, 2010 date of claim, the Veteran was not employed on a marginal basis, but was instead substantially gainfully employed. Evidence elsewhere in the appellate record establishes that, in addition to his employment as a teacher, the Veteran performed work in an unknown capacity serving as a pastor. See July 2010 private psychology records. Accordingly, the appellate record is devoid of probative evidence proving entitlement to a TDIU was factually ascertainable at any point in the one-year period preceding the July 29, 2010 date of claim. Next, the Board turns to the Veteran’s assertion that he is entitled to an effective date of November 7, 2003 simply because that is the date he met the schedular TDIU criteria under 38 C.F.R. § 4.16(a). In support of this assertion, the Veteran also cites SSA earning statements received in October 2012 showing he received minimal income between 2003 and 2006, although it is unclear that this was due solely to service-connected disabilities. On November 7, 2003, the Veteran filed a statement alleging that his psychiatric disability—for which he was awarded service connection and assigned an effective date of November 7, 2003 in a May 2004 rating decision—manifested as anxiety and anger control problems resulting in unemployment. In August 2004, the Veteran filed a formal TDIU claim, where he indicated his service-connected lumbar spine and psychiatric disabilities rendered him eligible for a TDIU. The Veteran was provided appropriate notice of the elements necessary to satisfy the claim and VA’s duties to assist under the Veterans Claims Assistance Act of 2000 (VCAA). See September 2004 VCAA notice. In an October 2005 rating decision, the RO denied entitlement to a TDIU. The Veteran did not file a notice of disagreement or new and material evidence within the one-year period following the mailing of the October 2005 rating decision. Consequently, this rating decision became final. 38 C.F.R. §§ 20.302, 20.1103. The November 7, 2003 lay statement arguably raised a claim of entitlement to a TDIU; however, the Veteran filed a formal TDIU claim in August 2004 that was adjudicated in the final October 2005 rating decision. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim.” Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). This “later disposition, denying the claim on its merits, also decides that the earlier identical claim must fail.” Id. Put another way, “a reasonably raised claim remains pending until there is . . . an explicit adjudication of a subsequent ‘claim’ for the same disability.” Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). Based on this binding precedential legal authority, the Board concludes that the November 7, 2003 inferred claim for a TDIU, as well as the August 2004 formal TDIU claim, were fully adjudicated in the final October 2005 rating decision. Between October 2005 and June 2008, no evidence was received indicating that the Veteran’s service-connected disabilities rendered the Veteran incapable of securing and following substantially gainful employment. In June 2008, the Veteran filed an informal claim requesting rating increases for his service-connected lumbar spine and psychiatric disabilities. At a July 2008 VA examination, the Veteran reported that he was employed from January 2007 to January 2008 by a “supportive employment company” and that he began substantially gainful employment working for his local school district in January 2008. While he reported some physical and psychiatric difficulties, the fact remains that he was gainfully employed at that time. In October 2008, the RO issued a rating decision denying the claims. The Veteran did not file a notice of disagreement or new and material evidence within the one-year period following the mailing of the October 2008 rating decision. Consequently, this rating decision became final. 38 C.F.R. §§ 20.302, 20.1103. These claims were adjudicated by the RO prior to the issuance of the Rice decision, which held that a TDIU claim is part and parcel with an increased rating claim in certain circumstances. Thus, Rice was not the law at the time of the October 2008 rating decision. However, the Federal Circuit’s decision in Roberson v. Principi was in effect, and held that a TDIU claim is raised when a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. While the evidence demonstrates that the Veteran had a medical disability and was seeking the highest possible rating at the time he filed the June 2008 informal claims for rating increases, no evidence on unemployability was submitted during the pendency of the claims. In fact, evidence received since the final October 2008 rating decision demonstrates that the Veteran was gainfully employed throughout the pendency of the June 2008 claims. Given this fact, the Board finds no error in the RO declining to consider TDIU in the October 2008 rating decision. Furthermore, the Veteran was provided notice of his appellate rights with the issuance of that rating decision, and he declined to challenge the ratings continued in the October 2008 rating decision or assert that these conditions caused individual unemployability. Between the final October 2008 rating decision, and the Veteran’s informal claim for rating increases received on July 29, 2010 (which implicitly raised a claim for TDIU under Rice), the appellate record contains no evidence reasonably raising a claim for a TDIU. Discussed supra. This fact further bolsters the Board’s conclusion that July 29, 2010 is the proper effective date for the Veteran’s award of a TDIU. Contrary to the Veteran’s attorney’s implications, there is no legal authority dictating that an award of a TDIU is automatic once a veteran satisfies the threshold schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a). While the Veteran satisfied the schedular TDIU criteria as of November 7, 2003, he failed to appeal the final October 2005 rating decision denying TDIU, and the issue was not further reasonably raised by the evidence until July 29, 2010. The Veteran’s legal arguments are without merit, and disregard binding legal precedents. Accordingly, the Veteran’s request for an effective date earlier than July 29, 2010 for entitlement to a TDIU is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel