Citation Nr: 1817863 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 16-45 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for major depressive disorder. 2. Entitlement an initial evaluation greater than 20 percent prior to September 21, 2015, and in excess of 40 percent from that date, for degenerative disc disease of the lumbosacral spine. 3. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity radiculopathy. 4. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from September 1955 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) from December 2014, July 2015, February 2016, and May 2016 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). A September 2015 rating decision increased the rating for degenerative disc disease of the lumbosacral spine from 20 percent to 40 percent from September 21, 2015. The Veteran later testified before the undersigned Veterans Law Judge at a videoconference hearing in February 2018. A transcript is of record. 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). FINDINGS OF FACT 1. The Veteran's major depressive disorder is characterized by occupational and social impairment with reduced reliability and productivity. 2. Prior to September 21, 2015, the Veteran's degenerative disc disease of the lumbosacral spine was not characterized by forward flexion of the thoracolumbar spine to 30 degrees or less or unfavorable ankylosis. 3. From September 21, 2015, the Veteran's degenerative disc disease of the lumbosacral spine has not been characterized by unfavorable ankylosis. 4. Prior to December 4, 2015, the Veteran's left lower extremity radiculopathy was characterized by mild incomplete paralysis. 5. From December 4, 2015, the Veteran's left lower extremity radiculopathy has been characterized by moderate incomplete paralysis. 5. Prior to December 4, 2015, the Veteran's right lower extremity radiculopathy was characterized by mild incomplete paralysis. 6. From December 4, 2015, the Veteran's right lower extremity radiculopathy has been characterized by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, and no greater, for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9434 (2017). 2. The criteria for initial evaluations in excess of 20 percent prior to September 21, 2015, and in excess of 40 percent from that date, for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 3. Prior to December 4, 2015, the criteria for an initial evaluation in excess of 10 percent for left lower extremity radiculopathy were not met, and from December 4, 2015, the criteria for an evaluation of 20 percent have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8520 (2017). 4. Prior to December 4, 2015, the criteria for an initial evaluation in excess of 10 percent for right lower extremity radiculopathy were not met, and from December 4, 2015, the criteria for an evaluation of 20 percent have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The claims arise from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to the duty to assist in this case, the Veteran's VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations in conjunction with his claims. Overall, the examiners provided well-reasoned rationales for the opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155 (2012). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Major Depressive Disorder The Veteran is seeking an evaluation in excess of 50 percent for PTSD. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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 such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. 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; some level of 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 worklike setting); inability to establish and maintain effective relationships, a 70 percent rating. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran had a VA examination in January 2016 at which he reported low mood, lack of interest, difficulty sleeping, low energy, and passive suicidal ideation. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported a good relationship with his wife, and he occupied himself with daily walks, watching television, and occasional outings with his wife for errands or dinner. The examiner noted that the Veteran was casually dressed and appropriately groomed, and he was oriented to time, place, and person. There was no evidence of psychosis, and he denied any active suicidal ideation. At February 2016 VA treatment it was noted that the Veteran had excessive worry, restlessness, muscle tension, disruptive sleep pattern, decreased concentration, and getting easily fatigued. The Veteran said that he sometimes got so nervous that his hands shook, and he could not sign his name. At April 2016 VA treatment the Veteran's symptoms were noted to be excessive worry, restlessness, decreased concentration, disruptive sleep pattern, muscle tension, emotional fatigue, and nighttime panic attacks. The Veteran testified at the February 2018 Board hearing that his hands shakes due to anxiety. He stays home all the time, and no longer has the confidence to drive. He gets panic attacks that feel like a heart attack. The Board finds that the Veteran's major depressive disorder most approximates occupational and social impairment with reduced reliability and productivity. The Veteran reported some suicidal ideation at the January 2016 VA examination, and the treatment and examination results show that the Veteran isolates himself, has difficulty concentrating, difficulty sleeping, and panic attacks. The Board finds that his symptomatology is consistent with a 50 percent evaluation. See 38 U.S.C. § 4.130, Diagnostic Code 9434. The Veteran wrote on his March 2016 Notice of Disagreement that the assignment of a 50 percent evaluation would satisfy his appeal for an increased evaluation for her service-connected major depressive disorder. Therefore, the grant of an evaluation of 50 percent is considered a complete grant of the benefits sought on appeal, and the Board need not consider whether the Veteran is entitled to an evaluation greater than 50 percent. B. Degenerative Disc Disease of the Lumbosacral Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59 (2016). The Board finds no basis under that case for remanding for a new examination for the back disability. The Board notes that the Correia case involved a claim for an increased rating for knee disorders, as opposed to the current case which involves a cervical spine disability. The December 2015 examination report states that there was evidence of pain on weight bearing, and the September 2015 examination reports state that there was not. Therefore, the Board finds that the testing from these examinations appears to have been done on weight bearing. There is no indication from the record that the results for the lumbosacral spine would have been different without weight bearing, or if the testing was passive instead of active. At March 2010 VA treatment the Veteran complained of low back pain with stiffness when he got in and out of chairs. It was noted that he walked as many as three miles a day. The Veteran had a VA examination in November 2013 at which he reported flare-ups caused by prolonged standing, repetitive bending, and heavy lifting. Range of motion was forward flexion to 60 degrees with pain at 50 degrees, extension to 10 degrees with pain at 5 degrees, right and left lateral flexion to 20 degrees with pain at 15 degrees, and left and right lateral flexion to 20 degrees with pain at 15 degrees. After repetitive use, range of motion was forward flexion was to 50 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. In addition to loss of motion, on repetitive use the examiner found there was weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. There was tenderness to deep palpation and muscle spasm not resulting in abnormal gait or abnormal spinal contour, and there was not guarding of the thoracolumbar spine. The examiner noted that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. The Veteran had another VA examination on September 21, 2015, at which he reported constant pain. He said that sitting on a couch caused flare-ups, and he would therefore sit on a hard chair. The Veteran also said that his functional impairment was pain and limited range of motion. On examination, range of motion was forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. There was pain associated with all of the motions and tenderness to palpation. Range of motion on repetitive testing was forward flexion to 10 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. The examiner felt that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. He could not state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time without resorting to speculation. The Veteran had guarding or muscle spasm of the thoracolumbar spine that did not result in abnormal gait or spinal contour. The examiner felt that the Veteran had IVDS but had not required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran had another VA examination in December 2015, at which he said that he could not sit for too long because of numbness and tingling in his low back. He also reported that his pain was so severe that he could not turn while on the toilet. Range of motion was forward flexion to 10 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. There was no reduction in range of motion on repetitive use testing. The Veteran had muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour. The examiner felt that the Veteran had IVDS but had not required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran then testified at the February 2018 Board hearing that his back condition stops him from being able to do things. It is painful for him to bend down, and his wife has to help him put on his shoes. For the period prior to September 21, 2015, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent. Forward flexion of the thoracolumbar spine was not limited to 30 degrees or less. At the November 2013 VA examination forward flexion was to 60 degrees. In addition, there was not ankylosis of the thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran did not have IVDS at during this period, and therefore Diagnostic Code 5243 is not applicable. See 38 C.F.R. § 4.71a. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. The November 2013 VA examiner opined that the Veteran's back pain, weakness, and fatigue limited his functional ability and range of motion during flare-ups and repetitive use. The examiner was unable to quantify the degree of range of motion loss during flare-ups. On repetitive use testing, range of motion was forward flexion was to 50 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. While the record shows complaints of pain and some flare-ups, the currently assigned 20 percent evaluation contemplates this symptom. Therefore, the record does not show that the Veteran is entitled to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine prior to September 21, 2015. Regarding the period from September 21, 2015, the record does not show unfavorable ankylosis of the entire thoracolumbar spine. Furthermore, while the Veteran was diagnosed with IVDS, he has not had incapacitating episodes requiring bedrest prescribed by a physician. Therefore, the Veteran does not qualify for an evaluation greater than 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. At the September 2015 VA examination there was a reduction of forward flexion from 40 percent to 10 percent on repetitive use testing. The Veteran reported constant pain. At the December 2015 VA examination, there was no reduction in range of motion on repetitive use testing. The examiner felt that the examination was consistent with the Veteran's statements describing function loss with repetitive use over time and during flare-ups. The Veteran reported difficulty toileting because of limitation in bending and twisting. While the record shows worsened limitations in motion for the period from September 21, 2015, the currently assigned 40 percent evaluation contemplates this. Therefore, the record does not show that the Veteran is entitled to an evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine from September 21, 2015. C. Lower Extremity Radiculopathy Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. At the November 2013 VA examination muscle strength testing was normal, and there was no muscle atrophy. Deep tendon reflexes were hypoactive in the right knee and ankle and normal in the left knee and ankle. A sensory examination was decreased light touch in the right lower extremity and normal light touch in the left lower extremity. There was mild radiculopathy in the right lower extremity and no radiculopathy in the left lower extremity. The Veteran had a VA examination in September 2015 at which he reported pain in his legs with tingling. He said that he walked a couple of miles every few days. Muscle strength was decreased, and deep tendon reflexes were normal. There was decreased sensation to light touch in both lower extremities, and the Veteran was noted to have mild radiculopathy bilaterally in the lower extremities. At the December 4, 2015 VA examination there was decreased muscle strength, normal reflexes, and decreased light touch. The examiner felt that the Veteran had moderate radiculopathy in the lower extremities. The Veteran testified at the February 2018 Board hearing that he has a tingling sensation down his legs. The Veteran is not entitled to evaluations in excess of 10 percent for radiculopathy in either lower extremity prior to December 4, 2015. The record does not show that the sensory deficit was of moderate severity. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. It is also noted that service connection was not in effect for the left lower extremity prior to September 21, 2015. There was mild radiculopathy in the right lower extremity at the November 2013 VA examination. At the September 2015 VA examination the Veteran had mild bilateral lower extremity radiculopathy. The Veteran is entitled to 20 percent evaluations from December 4, 2015, because the radiculopathy was of moderate severity. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. At the December 4, 2015 VA examination, the bilateral lower extremity radiculopathy was of moderate severity. The Veteran is not entitled to 40 percent evaluations because the record does not show moderately severe incomplete paralysis. See id. D. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. The November 2013 VA examiner opined that the Veteran's thoracolumbar spine limited his ability to engage in work requiring prolonged standing, repetitive bending, heavy lifting, and carrying. The September 2015 VA examiner opined that the back condition limited the Veteran's ability to work due to pain and limitation of motion. The December 2015 examiner felt that it limited work because the Veteran had pain when sitting for long periods of time. The major depressive disorder would cause decreased reliability and productivity. In this case, however, the record does not reflect that the Veteran is unemployable due to his service-connected major depressive disorder, degenerative disc disease of the lumbosacral spine, and lower extremity radiculopathy. While the record shows that there would be some interference with some job related activities due to the service-connected disability, there is no cogent evidence of unemployability, and thus consideration of a TDIU is not warranted. ORDER An initial evaluation of 50 percent, but not higher, for major depressive disorder is granted, subject to the law and regulations governing the payment of monetary benefits. Initial evaluations in excess of 20 percent for degenerative disc disease of the lumbosacral spine prior to September 21, 2015, and in excess of 40 percent from that date, are denied. An initial evaluation in excess of 10 percent for left lower extremity radiculopathy prior to December 4, 2015, is denied, and an evaluation of 20 percent, but not higher, from December 4, 2015, is granted, subject to the law and regulations governing the payment of monetary benefits. An initial evaluation in excess of 10 percent for right lower extremity radiculopathy prior to December 4, 2015, is denied, and an evaluation of 20 percent, but not higher, from December 4, 2015, is granted, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs