Citation Nr: 1806607 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 16-21 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative changes with degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an initial compensable evaluation for right lower extremity radiculopathy prior to April 20, 2015, and in excess of 10 percent thereafter. 3. Entitlement to an initial compensable evaluation for left lower extremity radiculopathy prior to December 16, 2015, and in excess of 10 percent thereafter. 4. Entitlement to an initial compensable evaluation for other specified trauma and stressor-related disorder. 5. Entitlement to an initial evaluation in excess of 30 percent for eczema prior to April 9, 2013, and in excess of 10 percent thereafter. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 7. Entitlement to service connection for a psychiatric disorder other than bipolar disorder, anxiety disorder, and other specified trauma or stressor-related disorder, to include a panic disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from April 1991 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2013, May 2015 and two March 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Additionally, the Board has taken jurisdiction over the claim for TDIU at this time, as the Veteran raised that issue during the appeal period and that claim is part and parcel of the claims for increased evaluation currently before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of increased evaluation for eczema, entitlement to TDIU and service connection for panic disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's lumbar spine disability more closely approximates to impairment of forward flexion to 30 degrees or less; the Veteran has not had ankylosis of the lumbar spine at any time during the appeal period. 2. For the period of May 27, 2015 through July 20, 2015, the combined symptomatology of the Veteran's lumbar spine and bilateral lower extremity radiculopathy required 6 weeks or more of incapacitating episodes. 3. The first evidence of a separately evaluable left lower extremity radiculopathy disability is July 21, 2015. 4. For the period beginning July 21, 2015, the Veteran's bilateral radiculopathy of the lower extremities has been moderate incomplete paralysis of each sciatic nerve. 5. Throughout the appeal period, the Veteran's other specified trauma or stressor-related disorder has manifested as depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships, with no more than occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. A 40 percent evaluation for DDD of the lumbar spine is warranted for the period of September 29, 2011 through May 26, 2015, is not warranted for the period of May 27, 2015 through July 20, 2015, and is warranted beginning July 21, 2015. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. A combined 60 percent evaluation for DDD of the lumbar spine with associated bilateral lower extremity radiculopathy is warranted for the period of May 27, 2015 through July 20, 2015. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). 3. The criteria for establishing a compensable evaluation prior to April 20, 2015, and an evaluation in excess of 10 percent for right lower extremity radiculopathy for the period of April 20, 2015 through May 26, 2015, have not been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for establishing a separate 20 percent evaluation, but no higher, for right lower extremity radiculopathy for the period beginning July 21, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for establishing a separate compensable evaluation for left lower extremity radiculopathy for the period prior to May 27, 2015, have not been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 6. The criteria for establishing a separate 20 percent evaluation, but no higher, for left lower extremity radiculopathy for the period beginning July 21, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 7. The criteria for establishing a 50 percent evaluation, but no higher, for other specified trauma or stressor-related disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2017); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9410 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Increased Evaluation for Lumbar Spine and Bilateral Lower Extremity Radiculopathy Disabilities In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran has been awarded service connection for his lumbar spine disability beginning September 29, 2011. Throughout the appeal period, the Veteran has been assigned a 10 percent evaluation for his lumbar spine disability under Diagnostic Code 5242. The Veteran's lumbar spine disability may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 through 5242) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Diagnostic Code 5243), whichever results in the higher evaluation. Diagnostic Code 5242 utilizes the under the General Rating Formula for Diseases and Injuries of the Spine. Under that formula, a 10 percent evaluation applies when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation applies where the evidence shows 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 evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine (2017). 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. 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, the Veteran's lumbar spine disability may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017). An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). Respecting the Veteran's associated radiculopathy of his bilateral lower extremities, he has been assigned 10 percent evaluations for his right and left lower extremity radiculopathy, respectively, beginning April 20, 2015 and December 16, 2015, under Diagnostic Code 8520. Implicit in those awards of benefits are noncompensable evaluations for those disabilities prior to those dates. Under Diagnostic Code 8520, which rates injuries to the sciatic nerve, a 10 percent rating is warranted for a mild incomplete paralysis. Moderate incomplete paralysis warrants a rating of 20 percent. Moderately severe incomplete paralysis warrants a 40 percent evaluation. Severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent evaluation. And finally, complete paralysis, defined as: the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost, warrants an 80 percent evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). Turning to the evidence of record, in a July 2009 VA treatment record, the Veteran reported chronic low back pain; he was noted to have been diagnosed with degenerative disc disease (DDD) of the lumbar spine in 2000. His back was noted as normal and his extremities were noted to have no edema. Other subsequent VA treatment records show continued ongoing treatment of the lumbar spine disability. The Veteran underwent a VA examination of his lumbar spine disability in April 2015, at which time he was diagnosed with mild to moderate DDD of the lumbar spine. During that examination, the Veteran reported having aching low back pain at a high level, which he rated as 4 out of 10 daily; occasionally, approximately twice a week, he could have an 8 out of 10 level of pain that lasted 2 hours, which was precipitated by usage of his back. However, the examiner noted that the Veteran denied any flare-ups of his back pain. He also reported pain down his right leg that also ached and had burning pain down to his knee only; his right leg pain occurred twice daily for an hour or two. The Veteran denied any pins-and-needles pain or numbness to the rest of the extremity or foot. On examination, the Veteran had "normal" range of motion, with flexion noted to 90 degrees, and with extension, bilateral lateral flexion and bilateral lateral rotation to 30 degrees; there was no pain noted on examination or with weightbearing. The examiner noted there was no additional functional loss after repetitive use. The examiner also noted there was no ankylosis, or guarding or muscle spasms noted on examination. The Veteran's muscle strength and reflex testing were normal and there was no muscle atrophy noted. Sensory testing was also noted and straight leg raising was negative. The Veteran was noted to have mild intermittent pain and paresthesias and/or dysesthesias of the right lower extremity; the Veteran did not have constant pain or numbness of the right lower extremity and the left lower extremity was unaffected at that time. The examiner found that the Veteran had mild right radiculopathy of the sciatic nerve at that time. The Veteran did not have any intervertebral disc syndrome (IVDS) at that time. The examiner further noted that there were no assistive devices necessary and x-rays demonstrated evidence of degenerative changes of the lumbar spine. Finally, the examiner noted that the Veteran's lumbar spine disability would impact his ability to work by slowing him down; he would have pain with too much bending, although he would be able to do low-impact physical work. The examiner reiterated that he had full range of motion without any objective pain, although he did note subjective pain and degeneration of his lumbar spine discs on CT scan. The Veteran submitted private treatment records from Dr. M.C., which document in a May 27, 2015 letter, that he was prescribing the Veteran 6 to 7 weeks of bedrest for his lumbar spine disability; he was also given a steroid injection on that date. Treatment records through July 2015 demonstrate continued treatment by Dr. M.C. for the Veteran's lumbar spine disability. The Board also reflects that throughout those records, the Veteran is shown to have right lower extremity radiculopathy and beginning in June 2015, he is shown to have left lower extremity radiculopathy. The Veteran indicated in his December 2015 notice of disagreement that he did, in fact, have pain on examination; he further noted that his private physician was treating him for pain of his lumbar spine. The Veteran additionally reported having constant pain and muscle spasms; the Veteran finally disputed that the examiner even "looked at" him, but was merely looking at the computer the entire examination. He also stated that he had radiculopathy in both of his legs. The Veteran underwent another VA examination of his lumbar spine disability in February 2016, at which time he was diagnosed with degenerative arthritis and IVDS of the lumbar spine. The Veteran reported a constant 8 out of 10 pain, which was provoked by cold, damp weather. He also reported having pain and numbness in both his lower extremities. He also reported taking two pain medications and reported no improvement with epidural injections. The Veteran also reported having flare-ups, and the examiner noted that the Veteran had been prescribed bed rest for 7 weeks from May 27, 2015 through July 20, 2015, due to an exacerbation of his low back pain. The Veteran further reported that he had a difficulty bending and that his pain increased with walking a block or standing longer than 5 minutes; he limited lifting to an occasional 20 pounds. On examination, the Veteran was noted to have forward flexion, bilateral lateral flexion and bilateral lateral rotation all to 20 degrees, and extension to 10 degrees; he had pain in all aspects of range of motion. The examiner noted that the Veteran had a limited ability to bend at the waist. There was no evidence of pain on weightbearing noted on examination. There was no additional functional loss after repetitive motion testing; the examiner noted that he was unable to state without mere speculation whether there was additional functional loss with repeated use over time or during flare-ups, as the Veteran was not examined after repeated use over time or during flare-up. The Board recognizes that without considering other facts of this case, the lack of explanation regarding the inability to do more than speculate as to additional functional loss, this examination would raise questions as to its adequacy. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, however, the Board is granting a 40 percent rating under the General Formula and, for another period of time, a 60 percent rating based on the Incapacitating Episodes formula. Given the definition of ankylosis, a higher rating would not be available due to more severe symptoms during a flare-up. As the outcome could not change due to this lack of explanation by the examiner, no further development is necessary. The Veteran was further noted to have muscle spasming and localized tenderness, although such did not result in abnormal gait or spinal contour. There was no evidence of ankylosis on examination. The Veteran had normal muscle strength and reflex testing, without any muscle atrophy. The Veteran had decreased sensation in his toes bilaterally, although all other aspects of the sensory examination were normal. The examiner noted that the Veteran did not need any assistive devices. Finally, the examiner noted that the Veteran had full range of motion on examination in April 2015 and that, although he had palpable tenderness over his lumbar spine during the examination, he "appeared to be lacking sincere effort" on range of motion testing during the examination. Regarding radiculopathy, the Veteran reported moderate constant pain and severe numbness and paresthesias and/or dysesthesias bilaterally; he denied intermittent pain bilaterally. The examiner found moderate radiculopathy of the bilateral sciatic nerves on examination. With regards to IVDS, the examiner referred to the notation above with regards to the amount of bedrest the Veteran had been prescribed. Additional private treatment records form October 2016 through February 2017 are of record. The Veteran is shown to be taking several medications for his pain as followed by his private physician. In October 2016, December 2016 and February 2017 records, the Veteran's range of motion was normal without pain reproduction, although he had pain to palpitation over the spine. The Veteran's reports of flare-ups and the incumbent symptomatology during flare-ups noted in those documents were substantially similar to those documented in the February 2016 VA examination. The Veteran also reported substantially similar lumbar spine and radicular symptomatology as noted in his February 2016 VA examination during his April 2017 hearing. Based on the foregoing evidence, the Board initially finds that a 60 percent evaluation for the Veteran's combined lumbar spine and bilateral radiculopathy disabilities under Diagnostic Code 5243 is warranted for the period of May 27, 2015 through July 20, 2015, as there is documented evidence of 7 weeks of physician-prescribed bedrest during that period of time. Consequently, a 60 percent evaluation under Diagnostic Code 5243 is warranted for that period of May 27, 2015 through July 20, 2015. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. However, for the period of May 27, 2015 through July 20, 2015, the Board must discontinue any separate evaluations for the Veteran's DDD of the lumbar spine and bilateral radiculopathy under Diagnostic Codes 5242 and 8520, respectively, as any evaluation under those Diagnostic Codes and under Diagnostic Code 5243 simultaneously for that period would result in impermissible pyramiding. See 38 C.F.R. § 4.14 (2017). In other words, if the Board were to grant ratings under both the General Formula, which provides for separate ratings for objective neurologic manifestations, and the formula based on Incapacitating Episodes, which does not provide for separate ratings, or were to apply the General Formula and the Incapacitating Episodes Formula for the same time period, the Veteran would be compensated more than once for the same manifestations. Turning to the evaluation of the Veteran's lumbar spine disability under Diagnostic Code 5242, the Board finds that the evidence of record warrants a 40 percent evaluation. The Board reflects that there is scarce evidence in the record prior to the April 2015 VA examination with respect to the severity of the Veteran's lumbar spine disability. During that examination, the Veteran's lumbar spine was shown to have a normal range of motion. However, although the examiner reported that the Veteran denied any flare-ups at that time, the examiner additionally indicated that twice a week he had increased periods of pain and symptomatology; the Board finds that such reports are necessarily "flare-ups" of the Veteran's lumbar spine disability. The April 2015 examiner therefore did not adequately address the severity of the Veteran's lumbar spine disability during flare-up during that examination. Instead, the February 2016 examiner noted that the Veteran's forward flexion was 20 degrees; the Veteran reported symptoms, particularly regarding flare-ups, during that examination that were substantially similar to those he reported during the April 2015 VA examination. Accordingly, by resolving reasonable doubt in his favor, the Board finds that the February 2016 VA examination is the most probative evidence with regards to the severity of the Veteran's lumbar spine disability throughout the appeal period. Given that he had forward flexion to 30 degrees or less during that examination, the Board finds that prior to May 27, 2015 and for the period beginning July 21, 2015, the Veteran's lumbar spine disability warrants a 40 percent evaluation. The Veteran reflects that an evaluation in excess of 40 percent for either of those periods is not warranted as there is no evidence of any type of ankylosis of the lumbar spine noted in the record. The Board, therefore, has assigned the highest possible evaluation for the Veteran's lumbar spine disability throughout the appeal period based on the evidence of record in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Turning to the bilateral radiculopathy, as an initial matter, the Board finds that beginning in June 2015, the evidence reflects the presence of left lower extremity radiculopathy. Consequently, the Board finds that the effective date of the award of a compensable evaluation for the Veteran's left lower extremity radiculopathy in this case should be July 21, 2015. The first evidence of any right lower extremity radiculopathy in the claims file is in the April 20, 2015 VA examination; the Board does not disturb that effective date in this case. See 38 C.F.R. § 3.400. For the period of April 20, 2015 through May 26, 2015, the evidence of record demonstrates mild right lower extremity radiculopathy associated with the Veteran's right sciatic nerve. The evidence of record does not reflect any evidence of moderate impairment of the right sciatic nerve during that period. Therefore, an increased evaluation of his right lower extremity radiculopathy for that period is denied. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. During the February 2016 VA examination, the evidence demonstrates that the Veteran's bilateral radiculopathy was shown to be a moderate impairment of the bilateral sciatic nerves. Consequently, by resolving reasonable doubt in the Veteran's favor, separate 20 percent evaluations for the Veteran's bilateral radiculopathy is warranted for the period beginning July 21, 2015, as such is the first evidence regarding the severity of his radiculopathy following his release from bedrest. See Id. In short, the Board awards a 40 percent evaluation for the Veteran's lumbar spine disability under Diagnostic Code 5242 for the period of September 29, 2011 through May 26, 2015; the Veteran's claim for increased evaluation for that period is granted. The Veteran's separate 10 percent evaluation for right lower extremity radiculopathy from April 20, 2015 through May 26, 2015, is denied. Both of those evaluations are discontinued beginning May 27, 2015, in favor of a combined 60 percent evaluation under Diagnostic Code 5243 for those two disabilities; the combined 60 percent evaluation under Diagnostic Code 5243 is assigned from May 27, 2015 through July 20, 2015, at which time that 60 percent evaluation is discontinued. Finally, for the period beginning July 21, 2015, a 40 percent evaluation under Diagnostic Code 5242 for the Veteran's lumbar spine disability is resumed, and separate 20 percent evaluations for the Veteran's bilateral radiculopathy are granted under Diagnostic Code 8520. See 38 C.F.R. §§ 4.7, 4.71a, 4.124a, Diagnostic Codes 5242, 5243, 8520. In reaching the above, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Evaluation for Other Trauma or Stressor-Related Disorder The Veteran was awarded service connection for other trauma or stressor-related disorder beginning June 2, 2015. Throughout the appeal period, that disability has been evaluated as noncompensable under Diagnostic Code 9410. Diagnostic Code 9410 is governed by the General Rating Formula for Mental Disorders, which provides a noncompensable (0 percent) evaluation for a when a mental disability has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational or social functioning or to require continuous medication. See 38 C.F.R. § 4.130, Diagnostic Code 9410, General Formula for Rating Mental Disorders (2017). A 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id. A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions recent events). Id. A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; memory loss for names of close relatives, own occupation, or own name. See Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116 One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). On June 2, 2015, the Veteran underwent a private psychiatric examination with Dr. S.D. The Veteran reported that his main complaint at that time was sadness; he indicated that he witnessed his roommate in military service die from alcohol intoxication and that he has started having flashbacks, nightmares, hypervigilance, anxiety, paranoia and sleeping problems. He has these problems when he was about to leave his house and panic attacks from reminders. He also reported having episodes of mania and depression following military service. He denied any suicidal or homicidal ideations, hallucinations, or any inpatient hospitalizations. He reported that he had taken several different medications in the past, although he was currently only taking Adderall for attention deficit hyperactivity disorder (ADHD) and Xanax. On examination, the Veteran looked appropriate for his age and was wearing casual clothing. He made good eye contact and did not have any abnormal movements, psychomotor agitation or retardation. He had a slow rate of speech and low volume, although his thought processes were linear and goal directed. He demonstrated mild paranoia, although he denied any delusions, hallucinations, or suicidal or homicidal ideations. His mood was sad and his affect was restricted. He remembered all three words spontaneously after 5 minutes. He was oriented to person, time and place; he had fair judgment and insight. He had average intellect and concentration. He was not judged to have any current risks of self-harm and it was noted that the Veteran had the ability to perform his activities of daily living independently. Dr. S.D. diagnosed the Veteran with posttraumatic stress disorder (PTSD), bipolar disorder, and ADHD. He was assigned a GAF score of 50 with the highest GAF score in the past year being 65. He was also prescribed Buspar and Carbamazepine for his PTSD at that time. Later in June 2015, the Veteran also underwent a VA psychiatric examination. At that time, the Veteran was diagnosed with bipolar disorder, panic disorder and generalized anxiety disorder; no diagnosis of PTSD or other trauma/stressor-related disorder was made at that time. The examiner noted that the Veteran had depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. On examination, the Veteran was noted to deny any suicidal or homicidal ideations, delusions, or hallucinations. His hygiene and grooming were within normal limits; he had normal speech, good eye contact, was friendly and cooperative and did not demonstrate any psychomotor agitation or slowing, or inappropriate behavior. His affect varied normally without flattening; his thought processes were logical and coherent and his thought content was appropriate to the questions asked. He was oriented to person, time, place, and did not have any impairment of attention/concentration or memory. He had average intelligence, fair insight, and his judgement was not apparently impaired. With regard to mood and anger management, the examiner noted the Veteran reported daily episodes of irritability and that he does not want to be bothered by people. He also indicated that he was sad and had reduced energy due to getting no sleep; he also described periods when he had trouble getting to sleep. He reported having panic attacks every other day or for days in a row, lasting for 30-60 minutes and when he takes medication it helps. With regards to differentiation of symptoms, the June 2015 VA examiner noted that he reported having bouts of depression, although the examiner noted that such episodes were not the length of time necessary to diagnosis major depressive disorder but rather, given the Veteran's strong family history of bipolar, his mood disturbances were more likely on the bipolar spectrum. The examiner further found that the Veteran's panic attacks were related to his panic disorder and that his anxiety was associated with his generalized anxiety disorder; his chronic sleep impairment overlapped his anxiety and bipolar disorders. All other noted symptoms were found to be associated with the Veteran's bipolar disorder. The Veteran underwent another VA psychiatric examination in February 2016, at which time he was diagnosed with bipolar, panic, generalized anxiety, and other specified trauma or stressor-related disorders. The examiner noted that the Veteran had depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was found to have occupational and social impairment in most areas. On examination, the Veteran had good hygiene and was wearing clean clothes; his behavior was appropriate, polite and friend and his attitude were cooperative. His speech was normal, with a clear and focused thought process and normal thought content. There were no perceptual disturbances and he was alert, oriented and had an average insight. His mood was mildly dysphoric and he reported being a little irritable as he always was; his affect was mildly constricted, although he showed a range of emotion during the interview. He denied any suicidal or homicidal ideations. The Veteran reported his panic attacks occurred when he was around a bunch of people, occurring every other day when he goes out of the house; he stayed home to avoid becoming anxious. He also reported trouble falling asleep, he wakes with night sweats, and once a month he has dreams about his roommate from the military who died. With respect to differentiation of symptoms, the examiner found that the panic attacks were solely related to his panic disorder, his impaired impulse control was solely related to his bipolar disorder, and his disturbances of motivation and mood were solely overlapping with his bipolar and generalized anxiety disorder. The Veteran's depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships overlapped with his other specified trauma or stressor-related disorder and his other psychiatric disorders. The examiner, however, did indicate that his level of occupational and social impairment was "due mostly to the effects of" his bipolar, generalized anxiety, and panic disorders, noting that those symptoms had a long-standing history and that his trauma/stressor-related disorder was only diagnosed beginning in June 2015, although the examiner did explain that the impairment of his trauma/stressor-related disorder was not known given the overlap of symptoms in his presentation. The Board has also reviewed the Veteran's VA treatment records since June 2015; generally, those records demonstrate substantially similar presentation of symptomatology as noted by the above private and VA examiners. The Veteran also indicated substantially similar psychiatric symptoms during his April 2017 hearing before the undersigned. Based on the foregoing evidence, the Board finds that a 50 percent evaluation is warranted for the Veteran's service-connected other specified trauma or stressor-related disorder, based on the presence of the following symptoms associated with that disorder: depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships, as noted by the most recent VA examiner. Although the Board acknowledges that the examiner indicated that the Veteran's functional impairment was mostly related to nonservice-connected bipolar, generalized anxiety and panic disorders, the most recent VA examiner also indicated that those symptoms were overlapped with the presentation of the trauma/stressor-related disorder and could not further differentiate the symptomatology. Accordingly, the Board must attribute those psychiatric symptoms and the resultant functional impairment of those symptoms to the service-connected psychiatric disorder in this case. See Mittleider v. West, 11 Vet. App. 181 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136 (1996) (VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so; the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability). Based on those symptoms and the June 2015 examiner's conclusions with regards to those symptoms, the Board finds that the Veteran's other specified trauma or stressor-related disorder results in occupational and social impairment with reduced reliability and productivity, which commensurates to a 50 percent evaluation. The Board reflects that other psychiatric symptomatology, including impaired impulse control and panic attacks, are present and contribute to a higher level of functional impairment, namely deficiencies in most areas which commensurates to a 70 percent evaluation, as noted by the most recent VA examiner. However, those symptoms were solely attributed to nonservice-connected psychiatric disorders at that time. Consequently, the Board finds that a higher evaluation than 50 percent is not warranted in this case, as the symptoms that result in that higher level of impairment are not related to the currently-service connected disability. For the above reasons, a 50 percent evaluation, but no higher, is assigned to the Veteran's service-connected other specified trauma or stressor-related disorder throughout the appeal period. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9410; Mittleider, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 40 percent evaluation under Diagnostic Code 5242 for DDD of the lumbar spine for the period of September 29, 2011 through May 26, 2015, is granted; that award is discontinued beginning May 27, 2015. A 60 percent evaluation under Diagnostic Code 5243 for DDD of the lumbar spine with associated bilateral lower extremity radiculopathy for the period of May 27, 2015 through July 20, 2015, is granted. A 40 percent evaluation under Diagnostic Code 5242 for DDD of the lumbar spine for the period beginning July 21, 2015, is resumed. An evaluation in excess of 10 percent evaluation for right lower extremity radiculopathy for the period of April 20, 2015 through May 26, 2015, is denied; that award is discontinued beginning May 27, 2015. A separate 20 percent evaluation for right lower extremity radiculopathy for the period beginning July 21, 2015, is granted. A separate 20 percent evaluation for left lower extremity radiculopathy for the period beginning July 21, 2015, is granted. A 50 percent evaluation for other specified trauma or stressor-related disorder is granted. REMAND Initially, as noted above, in a July 2013 rating decision, the AOJ denied service connection for anxiety, depression, and bipolar disorders. The Veteran timely appealed that decision in a November 2013 notice of disagreement. The Veteran's February 2016 VA psychiatric examination, he was diagnosed with bipolar disorder, generalized anxiety disorder, panic disorder, and other specified trauma or stressor-related disorder. In a March 2016 statement of the case, the AOJ denied service connection for bipolar and anxiety disorders; the Veteran did not timely perfect that appeal, and therefore those claims are final. See 38 C.F.R. §§ 20.200, 20.202 (2017). Four days later, in a March 2016 rating decision, service connection for other specified trauma or stressor-related disorder was awarded, which the Veteran timely appealed and the Board addressed above. Although no specific claim for a panic disorder was adjudicated in the July 2013 rating decision, or any subsequent rating decision, a claim of service connection for panic disorder is raised by the record as part and parcel of the other psychiatric disorder claims that were appealed from that rating decision. Furthermore, the panic disorder claim is currently in appellate status as a result of the November 2013 notice of disagreement. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record-prior to the Court's decision in that case). As the AOJ has not addressed the panic disorder in any statement of the case since receipt of the November 2013 notice of disagreement, the Board must remand the panic disorder claim in order for VA to fulfill their duty to issue a statement of the case as to that issue. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9(c) (2017). Turning to the Veteran's eczema claim, the Veteran testified in his April 2017 hearing that during the appeal period he was treated with Kenalog injections for his eczema. A review of his VA treatment records appears to confirm that the Veteran received Kenalog injections for his eczema approximately every 4 to 6 months from 2009 until approximately 2015, at which time VA stated that they would no longer provide him with Kenalog injections but would provide him with Kenalog topical cream instead. In the most recent February 2016 VA examination of his eczema, the VA examiner indicated that the Veteran's Kenalog injections were systemic corticosteroid or immunosuppressive treatment, although the examiner did not indicate whether his usage of such during the appeal period was intermittent use with a duration of less than 6 weeks during a 12-month period, more than 6 weeks but not constant use during a 12-month period, or constant/near-constant use. Accordingly, the Board finds that a remand is necessary in order to obtain another VA examination which adequately addresses the severity of the Veteran's eczema disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, in light of the need to remand the eczema claim for the above reasons, the Board finds that the TDIU claim is intertwined with that claim and must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Furnish to the Veteran and his representative a statement of the case with regard to the claim of service connection for a psychiatric disorder other than bipolar disorder, anxiety disorder, and other specified trauma or stressor-related disorder, to include a panic disorder. The issue should be returned to the Board only if a timely substantive appeal is received. 2. Obtain any and all VA treatment records not already associated with the claims file from the Indianapolis, Fort Wayne, and Marion VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his eczema disability, which is not already of record, to include any ongoing treatment with Dr. A.G. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Ensure that the Veteran is scheduled the Veteran for a VA examination in order to determine the current severity of his eczema disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. After examination of the Veteran and review of the claims file, the examiner should discuss the percentage of total body area covered and exposed body area covered by the Veteran's eczema disability. The examiner should discuss the Veteran's lay statements regarding the symptomatology associated with his skin condition, including the severity of that disability during flare-up, as appropriate, particularly as described in his April 2017 hearing. Additionally, the examiner should state what types of treatment he uses for his eczema disability, to include whether he requires or has ever required systemic therapy such as corticosteroids or immunosuppressive drugs to treat his eczema during the appeal period. If so, the examiner should indicate whether such use is intermittent requiring less than 6 weeks duration in a 12-month period, requires 6 weeks or more but not constant use during a 12-month period, or constant or near-constant use during a 12-month period. Specifically, the examiner must discuss the Veteran's Kenalog injections noted in his VA treatment records and referred to during his April 2017 hearing, and indicate the frequency of those injections relative to the usage criteria noted above. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims for increased evaluation of his eczema and entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs