Citation Nr: 18150124 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-33 211 DATE: November 15, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for chronic lumbar disc disease is denied. Entitlement to a disability rating of 70 percent, but no more, for depressive disorder not otherwise specified (NOS) is granted on and after August 29, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left leg is remanded. Entitlement to an effective date earlier than August 29, 2011 for the grant of service connection for radiculopathy of the left leg is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s chronic lumbar disc disease does not manifest as forward thoracolumbar flexion of 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of more than four weeks per year. 2. The Veteran’s depressive disorder NOS, throughout the period on appeal, has been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and total social impairment. 3. The Veteran’s service-connected disabilities have met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of these disabilities prevent him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a disability rating in excess of 20 percent for chronic lumbar disc disease were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). 2. With resolution of reasonable doubt in the Veteran’s favor, on and after August 29, 2011, the criteria for a disability rating of 70 percent, but no higher, for depressive disorder NOS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9434 (2017). 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for the award of a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from March 1986 to March 1989. These matters are on appeal from a May 2012 rating decision. As described in further detail below, the Veteran’s attorney has contended in a September 2017 statement that the Veteran is unemployable as a result of his service-connected depressive disorder NOS and chronic lumbar disc disease. VA most recently denied the Veteran’s TDIU claim in July 2016. The Board finds that the issue of entitlement to a TDIU has been raised by the September 2017 statement in connection with the claims on appeal for increased rating for the Veteran’s depressive disorder NOS and chronic lumbar disc disease. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his attorney have raised any issue with the 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Chronic Lumbar Disc Disease The Veteran contends that his chronic lumbar disc disease warrants a rating in excess of 20 percent. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, with a 10 percent rating from March 10, 2006 to August 28, 2011 and a 20 percent rating on and after August 29, 2011. Diagnostic Code 5243 pertains to IVDS. VA received the Veteran’s claim for an increased rating on August 29, 2011. Diagnostic Code 5243 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). Under the General Formula, a 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. In addition, the Formula for Rating IVDS Based on Incapacitating Episodes allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Incapacitating episodes having a total duration of at least two weeks but less than four weeks warrant a 20 percent rating, a total duration of at least four weeks but less than six weeks warrants a 40 percent rating, and a total duration of at least six weeks warrants a 60 percent rating. Id. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable ratings have been in effect during the entire appeal period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Veteran was afforded a VA examination in March 2012. The examiner diagnosed degenerative disc disease of the lumbar spine and spondylosis of the thoracic spine. He denied flare ups. On examination, thoracolumbar motion was reported as 40 degrees of forward flexion, 10 degrees of extension, 10 degrees of right and left lateral flexion, and 10 degrees of right and left lateral rotation, with objective evidence of painful motion at the end of each range of motion. The Veteran was unable to perform repetitive use testing due to significant pain and unsteadiness. The examiner noted functional loss due to decreased movement, incoordination, and pain on movement. There was no tenderness or pain to palpation. There was no muscle spasm or guarding. There was no muscle atrophy and muscle strength was normal. Reflexes were normal. Sensory examination was normal. There was no radiculopathy or other neurologic abnormalities. The examiner found that the Veteran had IVDS and that it had caused incapacitating episodes with a total duration of at least two weeks but less than four weeks in the past year. The Veteran reported regularly using a cane. The examiner found that the functional impact of the Veteran’s lumbar spine disability was pain in his lower back if he was on his feet for even short periods of time. The Veteran was afforded an additional VA examination in April 2016. The examiner diagnosed lumbar degenerative joint disease and thoracic spondylosis. The Veteran reported worsening back pain and that flare ups included increased pain. He also reported pain with prolonged standing, walking, or bending over. On examination, thoracolumbar motion was reported as 40 degrees of forward flexion, 5 degrees of extension, 10 degrees of right and left lateral flexion, and 10 degrees of right and left lateral rotation. There was pain on each range of motion and it caused functional loss. There was also pain with weight bearing and tenderness on palpation of the lumbar spine. There was no additional loss of function on repetition. The examination was immediately after repetitive use over time and pain and this caused significant limitation, but no worse than the ranges listed above. There was localized tenderness nor resulting in abnormal gait or spinal contour, but no spasm or guarding. Additional contributing factors of disability included disturbance of locomotion and interference with standing. There was no muscle atrophy or reduction of muscle strength. Reflexes were normal. Sensory examination was normal. There was mild radiculopathy in the left lower extremity, but none in the right lower extremity. There was no ankylosis. There were no other neurologic abnormalities. The Veteran’s IVDS had not caused any incapacitating episodes in the past 12 months. The Veteran reported regularly using a cane. The examiner found that the functional impact of the Veteran’s lumbar spine disability was back pain with prolonged standing, sitting, or extended walking or bending over. In a May 2016 addendum opinion, the April 2016 VA examiner opined that the Veteran’s lumbar spine disability would impact his ability to secure and maintain gainful employment in a physically strenuous work environment but would not prevent him from securing and maintaining gainful employment in a sedentary setting with appropriate work accommodations or restrictions. The preponderance of the evidence described above shows that the Veteran’s low back disability does not warrant a rating in excess of 20 percent during the period on appeal. No VA examiner or treatment provider has found that the forward flexion of the Veteran’s thoracolumbar spine was 30 degrees or less. Given the existence of a range of thoracolumbar motion, the preponderance of the evidence is against a finding that the Veteran has ankylosis of the thoracolumbar spine as defined above. The Board has additionally considered whether a higher rating is warranted under the formula for rating IVDS based on incapacitating episodes. There is no evidence of incapacitating episodes having a duration of at least four weeks in twelve months during the period on appeal. For these reasons, a rating in excess of 20 percent based on incapacitating episodes caused by IVDS is not warranted. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His descriptions are also credible. Nothing in those statements is inconsistent with the 20 percent rating currently assigned. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain causes functional impairment equivalent to the criteria for a rating in excess of 20 percent. Any associated objective neurologic abnormalities caused by the Veteran’s low back disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). Other than radiculopathy of the left leg, which is separately service connected, there is no objective evidence of neurologic abnormalities. For these reasons, the Board finds that the Veteran’s disability picture is most closely approximated by the 20 percent criteria for the period on appeal. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 2. Depressive Disorder NOS The Veteran contends that his depressive disorder NOS warrants higher ratings than those currently assigned. It is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434, for major depressive disorder, with a 50 percent rating from August 29, 2011 to April 28, 2016 and a 70 percent rating on and after April 29, 2016. The full period of service connection is on appeal. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when there is 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. See Vazquez–Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Veteran has submitted an August 2011 statement by his former supervisor, who reported she had seen the Veteran “lose all control of his emotions” on the job, including a “horrible anxiety attack” in February 2011. She ascribed these emotional symptoms to pain. During an October 2011 VA treatment appointment, the Veteran reported that he was easy to anger and “someone just has to say anything and [he could] go bust.” He reported a high level of frustration and anxiety with “zero tolerance.” He denied suicidal or homicidal ideation. On examination, he was clean and adequately groomed, his speech was normal in volume, tone, and prosody, his mood was anxious and dysphoric, his affect was anxious and sad, he denied psychosis, suicidality, and homicidality, and his cognition was intact. The treatment provider diagnosed a mood disorder and found it secondary to chronic pain. The treatment provider also diagnosed intermittent explosive disorder and an anxiety disorder. VA treatment records report the Veteran’s symptoms as generally similar through the remainder of 2011 and into 2012. The Veteran was afforded a VA examination in April 2012. The examiner characterized the Veteran’s depressive symptoms as moderate, but significantly disruptive to him and contributing to problems with anger management and social interaction. The Veteran reported that he had left his most recent job in late 2011 due to chronic pain, not psychiatric symptoms. He also reported that he had been married and divorced twice, had one daughter, with whom he was close, and lived in an apartment with extended family. He reported that he had been arrested for domestic violence in 2011 but that the charges were later dismissed. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood and anxiety, but added that he had no motivation or drive, had little he looked forward to or enjoyed, and had problems with attention and concentration. The examiner also found the Veteran “very volatile at present” and noted that a VA provider had refused to see him for that reason unless he saw a mental health professional. The Veteran reported that he had punched his computer monitor. The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. The examiner opined that the Veteran’s psychiatric symptoms “can reasonably be believed to be driven by” his chronic pain. During a June 2012 VA treatment appointment, the Veteran reported irritability and anger, including one incident at a VA facility in which he became so angry at VA personnel that he was escorted from the premises. He reported expressing suicidal and homicidal ideation when angry but denied having a plan. He also reported an incident in December 2011 when he got into a physical altercation with his brother and was arrested; this appears to be the incident referenced in the April 2012 VA examination report. During a July 2012 VA treatment appointment, the Veteran reported poor short term memory, including blackouts, and that he was extremely irritable. During a November 2012 VA treatment appointment, the Veteran reported that he was under house arrest and described what the treatment provider characterized as a “hallucinatory experience with memory blackouts and involvement with the Police when he supposedly got suicidal/homicidal.” One week later, the Veteran went to the emergency room, resulting in inpatient psychiatric hospitalization. He reported that, in July, he had gotten into an argument with his best friend, had apparently threatened to kill her, and was arrested in front of his house in possession of firearms and ammunition. He denied having any memory of the events leading to the arrest. He reported that he was incarcerated for 48 days and, while incarcerated, had a visual hallucination in which he saw his mother having a heart attack. He also reported that, while incarcerated, he became suicidal and was put on suicide watch for nine days. He reported intent to kill himself if convicted but denied homicidal ideation. He also reported a suicide attempt earlier in 2012 in which he put a loaded gun to his head but could not pull the trigger because he did not want to leave his daughter alone. He also reported increased irritability toward and decreased lack of interest in speaking with his daughter. The treatment provider characterized the Veteran’s impulse control as poor. The Veteran was hospitalized for six days. During an April 2016 VA examination, the Veteran reported that, as a result of this incident, he pled guilty to stalking in the first degree, possession of a firearm while committing a felony, and two other felonies. During a December 2012 VA treatment appointment, the Veteran reported continued episodes of severe helplessness and hopelessness with thoughts of giving up but denied suicidal or homicidal ideation. His symptoms were generally the same as before his hospitalization. During a January 2013 VA treatment appointment, the Veteran reported improved mood and anxiety symptoms, with no suicidal ideation or thoughts of harm to others. He continued to report improvement through 2013 and, during a November 2013 VA treatment appointment, reported that, despite continued depression, his anger and anxiety were no longer an issue. During a December 2013 VA treatment appointment, he reported low energy level and neglect of hygiene. He denied suicidal ideation but reported that, while incarcerated, he attempted to hang himself with his boot laces. During a May 2014 VA treatment appointment, the Veteran reported improved self care but continued worry, dread, and sense of doom. However, during a VA treatment appointment one week later, the Veteran reported high anxiety, low energy, and a need to force himself to function or care for hygiene. During a July 2014 VA treatment appointment, the Veteran reported a severely depressed mood and increasing anxiety and depression; he denied suicidal ideation but remained somewhat hopeless. During an October 2014 VA treatment appointment, the Veteran reported improved anxiety but continued depression and hopelessness; during a treatment appointment four days later, he reported that he was very depressed and lacked the motivation to groom himself. During a December 2014 VA treatment appointment, he reported irritability, poor short term memory, and isolation from friends and others due to disinterest in doing anything or being around people. During a January 2015 VA treatment appointment, the Veteran reported worsening anxiety. During a March 2015 VA treatment appointment, the Veteran reported high depression and low energy level, with no friends outside of social media and no interest in or motivation for any activity. During a VA treatment appointment the next day, the treatment provider noted that the Veteran was disheveled but clean. During a May 2015 VA treatment appointment, the Veteran reported having no friends and having overwhelming feelings of hopelessness and uselessness. During a VA treatment appointment later in May 2015, the Veteran reported being generally unhappy, crying easily, and that his hygiene was deteriorating. During a November 2015 VA treatment appointment, the Veteran reported spending most of his time at home isolated from all but his mother and daughter, who live with him. He also reported that his short term memory was poor, causing him to forget necessary information. During a December 2015 VA treatment appointment, he reported current irritability, for which he apologized, and the treatment provider characterized his grooming as moderate. The Veteran was afforded an additional VA examination on April 29, 2016. The Veteran reported that he and his former spouse had recently begun speaking on the phone again and that they were considering reuniting. He also reported that he had not dated anyone since 2012, but ascribed this to financial difficulties. He reported having a good relationship with his 18 year old daughter. He also reported that he had one good friend, but no other friends. He reported significant problems with concentration and staying on task; the examiner noted that this was evidence during the examination. The Veteran also reported forgetfulness, including a 2015 incident in which he forgot that he was cooking and the food caught fire. He also reported feeling so helpless and hopeless that he did not interact with friends anymore or want to leave the house. In addition, he reported daily irritability that made it difficult to get along with people; the examiner noted that this would impair his ability to work with the public. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. He was oriented, with logical and linear thought processes, but his answers were often rambling and tangential. He reported thinking about suicide two to three times a week but denied having any suicidal intent. The examiner opined that the Veteran’s psychiatric condition did not, by itself, impair his ability to engage in physical or sedentary employment. The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. In a May 2016 addendum opinion, the April 2016 VA examiner added that the Veteran’s difficulty with concentration would make it difficult for him to work in an environment where he would need sustained attention to complete employment tasks and he would not work well in an environment where problems with concentration could endanger him or others. The examiner also found that his difficulties with irritability would impair his ability to work successfully in jobs where he would have to interact with the public or have any significant interaction with coworkers or supervisors. In addition, the examiner found that his feelings of helplessness or hopelessness would make him more likely to be late or miss work and that he would need to have a job with some flexibility around those issues. Lastly, the examiner found that his problems with memory would make it difficult for him to learn protocols on the job or keep up with tasks and that he should not work in an environment where forgetting to complete tasks or completing them out of order could endanger him, others, or the employer’s finances. During a July 2016 VA treatment appointment, the Veteran reported increased difficulty coping with stress and anxiety, including getting close to a panic attack without having one for several months. The Veteran has submitted an April 2017 statement by his mother, who reported that she moved in with him in January 2012 due to his “deteriorating” condition and that, at that time, his 14 year old daughter was effectively his caregiver. She also reported that, while living with him, she observed “many anxiety attacks, bouts of depression to the point of total hopelessness, and blackouts that would last an entire day with no memory of it whatsoever.” She also reported that the bond between the Veteran and his daughter was strong despite his impatience and getting “angry and loud” with her. She also reported that he sometimes went over a week without showering or shaving. The Veteran has also submitted a May 2017 examination by a private psychologist. The Veteran reported that he continued to live with his daughter and denied being in a significant relationship. He also reported being socially isolated and withdrawn. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The Veteran struggled to remember basic information. His speech flow was normal but brief with information offered. There was no report of overt hallucinations. The examiner noted that the Veteran “seemed rather paranoid” when speaking with her. He characterized his hygiene as “non-existent.” The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. The examiner further opined that the Veteran would frequently miss work, need to leave early, or be unable to stay focused to complete simple, repetitive tasks due to his psychiatric symptoms and would respond in an angry manner without actually becoming violent when subjected to normal workplace stressors more than once a month. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for PTSD throughout the period on appeal. During the period from August 29, 2011 to April 28, 2016, the record contains evidence of suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, and neglect of personal hygiene. In particular, the record contains evidence of multiple suicide attempts and incidents of violence or intended violence toward others during this period. For this reason, the Board finds that Veteran’s symptoms most nearly approximate those that warrant a 70 percent rating throughout the period on appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran’s symptoms at any point during the period on appeal. The record contains evidence of grossly inappropriate behavior, danger of hurting himself or others, and intermittent inability to perform activities of daily living. Self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, even the constant presence of some symptoms listed in the criteria for a 100 percent rating is insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran’s symptoms have not been shown to be so severe that he has both total occupational and total social impairment. The Board acknowledges that, in this decision, it has found the Veteran to be unemployable due to his service-connected disabilities, but the Veteran has been able to maintain some personal relationships, specifically with his daughter, mother, and a close friend. The Veteran’s mother descried his relationship with their daughter as “strong.” The Board acknowledges that these relationships are sometimes strained or distant, but that is reflected in the current 70 percent rating for “deficiencies in most areas,” including inability to establish and maintain effective relationships. Because the Veteran is not totally socially impaired, a 100 percent rating is not warranted. The Board also notes that many of the Veteran’s reported symptoms throughout the period on appeal are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran’s extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran’s psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board has also considered the Veteran’s assertions regarding his psychiatric symptoms, which he is competent to provide, as well as those of his mother. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. The symptoms described in those lay statements comport with the 70 percent rating that has now been assigned. However, these lay statements do not provide any basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, the Board finds that, resolving reasonable doubt in the Veteran’s favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating throughout the period on appeal. 3. TDIU VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran’s current combined disability rating is 80 percent: his depressive disorder NOS is rated 70 percent disabling, his chronic lumbar disc disease is rated 20 percent disabling, and his radiculopathy of the left leg is rated 10 percent disabling. The criteria for consideration of a schedular TDIU are therefore met. The Board has discussed the evidence regarding occupational impairment caused by the Veteran’s depressive disorder NOS and chronic lumbar disc disease individually in the context of the increased rating claims above. Although no VA examiner has found that the Veteran is unemployable as a result of any one service-connected disability, the May 2016 addendum opinions combine to support a finding by the Board that the Veteran would only be able to work in a job that is not physically strenuous, does not require sustained attention or concentration, does not require public contact or any significant interaction with coworkers or supervisors, is low stress, and is flexible as to lateness and absences. This narrows the range of potential employment so severely that it is functionally indistinguishable from a finding of unemployability. The Board also notes that, in a July 2017 decision, the Social Security Administration granted disability compensation based on the Veteran’s back and psychiatric disabilities. In addition, the Veteran has submitted an August 2017 opinion by a private vocational consultant, who opined that the Veteran was “totally and permanently precluded from performing work at a substantial gainful level” due to the severity of his service connected disabilities. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities have rendered him unemployable under the applicable regulations. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left leg is remanded. The AOJ granted service connection for radiculopathy of the left leg in a June 2016 rating decision. In a June 2017 Notice of Disagreement (NOD), the Veteran expressed disagreement with the disability rating. The AOJ has accepted the NOD as valid and timely, but has yet to issue a Statement of the Case (SOC) with regard to this issue. A remand is therefore necessary. Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to an effective date earlier than August 29, 2011 for the grant of service connection for radiculopathy of the left leg is remanded. The AOJ assigned an effective date of August 29, 2011 for service connection for radiculopathy of the left leg in a June 2016 rating decision. In a June 2017 Notice of Disagreement (NOD), the Veteran expressed disagreement with the effective date. The AOJ has accepted the NOD as valid and timely, but has yet to issue a SOC with regard to this issue. A remand is therefore necessary. Manlincon, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: 1. The AOJ must issue a Statement of the Case (SOC) addressing the claims of entitlement to a disability rating in excess of 10 percent for radiculopathy of the left leg and entitlement to an effective date earlier than August 29, 2011 for the grant of service connection for radiculopathy of the left leg. The Veteran is hereby notified that, following the receipt of the SOC concerning these issues, he must file a timely substantive appeal if he desires appellate review by the Board. If, and only if, the Veteran files a timely substantive appeal, the AOJ should return this issue to the Board for appellate review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel