Citation Nr: 1826322 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 14-32 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date prior to February 25, 2009 for the disability rating of 40 percent for arthritis of the lumbar spine. 2. Entitlement to a rating in excess of 40 percent for arthritis of the lumbar spine. 3. Entitlement to an initial compensable rating prior to December 8, 2011 and an initial rating in excess of 10 percent beginning December 8, 2011 for radiculopathy of the left lower extremity. 4. Entitlement to an initial compensable rating prior to December 8, 2011, an initial rating in excess of 10 percent from December 8, 2011 to October 9, 2014, and an initial rating in excess of 20 percent beginning October 10, 2014 for radiculopathy of the right lower extremity. 5. Entitlement to a rating in excess of 50 percent prior to October 10, 2014 and in excess of 70 percent beginning October 10, 2014 for major depressive disorder with psychosis. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 10, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from November 1994 to August 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2009, December 2009, and March 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The June 2009 rating decision increased the Veteran's rating for major depressive disorder with psychosis from 30 percent to 50 percent effective February 25, 2009. A January 2015 rating decision increased the rating to 70 percent effective October 10, 2014. The December 2009 rating decision in part continued the 20 percent rating for the Veteran's arthritis of the lumbar spine. An April 2012 rating decision increased the rating to 40 percent effective December 8, 2011, and a July 2014 rating decision increased the 40 percent rating effective February 25, 2009. The Veteran has not expressed satisfaction with the effective date of the 40 percent rating, nor has she expressed satisfaction with the 40 percent rating. The December 2009 rating decision also denied the Veteran's claim for entitlement to TDIU. A January 2015 rating decision granted TDIU effective October 10, 2014. The March 2013 rating decision granted service connection for bilateral lower extremity radiculopathy with noncompensable evaluations effective August 14, 2009 and separate 10 percent ratings beginning December 8, 2011. A January 2015 rating decision increased the rating for the Veteran's right lower extremity radiculopathy to 20 percent effective October 10, 2014. Per Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, VA must provide a separate rating for associated neurologic impairments. Thus, the Board has included the lower extremity radiculopathy claims in this decision as they are part and parcel of the claim for an increased rating for the lumbar spine disability. As the Veteran has not expressed satisfaction with the above increased ratings and the effective date of TDIU and they are less than the maximum under the applicable criteria, the claims remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. The Veteran did not submit a timely VA Form 9, Substantive Appeal, with the rating assigned by the May 2005 rating decision for the award of service connection for arthritis of the lumbar spine, after issuance of the January 2008 statement of the case (SOC) or August 2008 supplemental SOC (SSOC). 2. The Veteran's claim for an increased disability rating for arthritis of the lumbar spine was received by VA on February 25, 2009. 3. A factually ascertainable increase of arthritis of the lumbar spine disability was not shown during the period between issuance of the August 2008 SSOC and prior to receipt of the Veteran's February 25, 2009 claim for an increased disability rating for arthritis of the lumbar spine. 4. The evidence shows forward flexion of the thoracolumbar spine of 30 degrees or less but no evidence of unfavorable ankylosis of the entire thoracolumbar spine; the Veteran has intervertebral disc syndrome with no incapacitating episodes (IVDS). 5. Prior to December 8, 2011, the Veteran's radiculopathy of the left lower extremity was not manifested by competent evidence of mild incomplete paralysis of the sciatic nerve. 6. From December 8, 2011 to October 9, 2014, the Veteran's radiculopathy of the left lower extremity was manifested by mild incomplete paralysis of the sciatic nerve. 7. From October 10, 2014, the Veteran's radiculopathy of the left lower extremity was manifested by moderate incomplete paralysis of the sciatic nerve. 8. Prior to December 8, 2011, the Veteran's radiculopathy of the right lower extremity was not manifested by competent evidence of mild incomplete paralysis of the sciatic nerve. 9. From December 8, 2011 to October 9, 2014, the Veteran's radiculopathy of the right lower extremity was manifested by mild incomplete paralysis of the sciatic nerve. 10. From October 10, 2014, the Veteran's radiculopathy of the right lower extremity was manifested by moderate incomplete paralysis of the sciatic nerve. 11. Prior to October 10, 2014, the Veteran's major depressive disorder with psychosis is shown to have been manifested by symptoms causing occupational and social impairment with reduced reliability and productivity, but is not shown to have been manifested by symptoms causing occupational and social impairment with deficiencies in most areas. 12. From October 10, 2014, the Veteran's major depressive disorder with psychosis is shown to have been manifested by symptoms causing occupational and social impairment with deficiencies in most areas, but is not shown to have been manifested by symptoms causing total social impairment (in addition to total occupational impairment). 13. Prior to the October 10, 2014 effective date for TDIU, the Veteran's service-connected disabilities precluded her from securing and maintaining substantially gainful employment consistent with her education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 25, 2009 for the award of a 40 percent rating for arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107, 5110(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 3.400(o), 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for a rating in excess of 40 percent for the Veteran's service-connected arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5242 (2017). 3. Prior to December 8, 2011, the criteria for an initial compensable rating for the Veteran's service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8520 (2017). 4. From December 8, 2011 to October 9, 2014, the criteria for an initial rating in excess of 10 percent for the Veteran's service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8520 (2017). 5. From October 10, 2014, the criteria for an initial 20 percent, but no higher, rating for the Veteran's service-connected radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8520 (2017). 6. Prior to December 8, 2011, the criteria for an initial compensable rating for the Veteran's service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8520 (2017). 7. From December 8, 2011 to October 9, 2014, the criteria for an initial rating in excess of 10 percent for the Veteran's service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8520 (2017). 8. From October 10, 2014, the criteria for an initial rating in excess of 20 percent for the Veteran's service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8520 (2017). 9. Prior to October 10, 2014, the criteria for a rating in excess of 50 percent for the Veteran's service-connected major depressive disorder with psychosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.120, 4.130, Diagnostic Code 9434 (2017). 10. From October 10, 2014, the criteria for a rating in excess of 70 percent for the Veteran's service-connected major depressive disorder with psychosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.120, 4.130, Diagnostic Code 9434 (2017). 11. The criteria for entitlement to a TDIU are met prior to October 10, 2014. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor her representative has raised any issues 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). Regarding the claim seeking entitlement to TDIU, any error in VA's duties to notify or assist is harmless, as the claim is being granted herein. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to her claims. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Earlier Effective Date The Veteran and her representative have asserted that she is entitled to an effective date earlier than February 25, 2009 for the award of an increased 40 percent evaluation for arthritis of the lumbar spine. See Informal Hearing Presentation, October 20, 2015. Determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p)(2). An informal claim is any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement; however, there must first be a prior allowance or disallowance of a claim before this informal claim provision applies. The United States Court of Appeals for Veterans Claims (Court) has held that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). To obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then, the effective date is no earlier than the date of the claim. The record reflects the Veteran had initiated an appeal of a May 2005 rating decision that awarded service connection for a lumbar spine disability and assigned a 10 percent rating. However, the Veteran did not submit a timely VA Form 9, Substantive Appeal, after a January 2008 SOC, or after an August 2008 SSOC (which reevaluated the claim with consideration of evidence that had been added to the record shortly after issuance of the January 2008 SOC (38 C.F.R. §§ 19.31, 20.302(b)(2)). On February 25, 2009, VA received from the Veteran an untimely VA Form 9, Substantive Appeal. As it was untimely received, the RO treated the Form 9 as a claim for increase for the lumbar spine disability. The RO increased the rating to 40 percent effective December 8, 2011 in an April 2012 rating decision. In a June 2012 statement, the Veteran disagreed with the December 2011 effective date and stated the effective date should be in 2008. The RO then issued a July 2014 rating decision assigning the 40 percent rating from February 25, 2009, the date of the Veteran's claim for an increased rating for her lumbar spine disability. Thus, the pertinent question is whether there was a factually ascertainable increase prior to the current February 25, 2009 effective date. As the August 2008 SSOC was issued during the one-year time period prior to receipt of the February 25, 2009 claim, the earliest possible effective date would be August 2, 2008, the day after the SSOC was issued, as that document considered evidence of record at that time and is included as part of the final unappealed May 2005 rating decision. The Veteran's lumbar spine disability is rated under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent rating is warranted where there is 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 is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The evidence during the pertinent period prior to February 25, 2009 does not reflect a factually ascertainable increase in the Veteran's lumbar spine disability. VA records, including a December 2008 record that would have been constructively of record during that period, reflect the Veteran was continuing to experience back pain during that time, but there is no indication the Veteran had forward flexion of 30 degrees or less, even with consideration of such pain and any associated functional loss. Additionally, there is no evidence of any ankylosis. Therefore, there is no factually ascertainable increase shown in the disability in the pertinent period prior to the February 25, 2009 claim for increase. As such, the claim for an effective date prior to February 25, 2009 for the increased 40 percent rating for arthritis of the lumbar spine is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Lumbar Spine Disability The Veteran's arthritis of the lumbar spine is rated as 40 percent disabling throughout the appeal period under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. The Veteran's lumbar spine disability can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the Formula for Rating IVDS, a 40 percent rating is warranted 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 rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (1) provides that for purposes of evaluating under diagnostic code 5243, 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. For the reasons that follow, the Board finds that a rating in excess of 40 percent under Diagnostic Code 5242 is not warranted for the entire period on appeal because there is no evidence of unfavorable ankylosis, which is required for a rating in excess of 40 percent under the rating schedule. 38 C.F.R. § 4.71a. Turning to the evidence of record, the Veteran attended a VA examination in September 2009 where the examiner noted the Veteran had no spinal ankylosis. The Veteran reported she has daily pain in the low back on the pain scale at a six. She reported flare-ups that occur about one time per week where her pain increases to a nine. She stated her flare-ups last one to two days and that during flare-ups she cannot work and retires to her bed. The Veteran reported her flare-ups occur spontaneously and that weather changes also bring about flare-ups. The VA examiner noted that due to the Veteran's spinal condition, she could not work at anything but part time sedentary work and even with that she might have much absenteeism. A July 2010 VA treatment note illustrates the Veteran had lumbar flexion to 40 degrees and could do extension. The Veteran had a steady gait and could tip toe, heel walk, and tandem walk. The Veteran attended an additional VA examination in March 2012 where the Veteran was not noted to have ankylosis. The Veteran had flexion to 30 degrees with pain at 25 degrees and extension to 25 degrees with pain at 15 degrees. The Veteran performed repetitive use testing with additional loss of extension to 10 degrees. Upon repetitive use testing, the examiner noted the Veteran had functional loss characterized by less movement than normal, weakened movement, pain on movement, and disturbance of locomotion, and interference with sitting, standing, and weight bearing. The examiner noted the Veteran had IVDS but no incapacitating episodes in the 12 months preceding the examination. The examiner noted the Veteran's lumbar spine condition does not impact the Veteran's ability to work. The Veteran reported that her condition has affected her lifestyle with increased pain and stiffness. She reported she is unable to perform her daily activities without interference from pain, she does not sleep well due to pain, and that she wears a back brace daily. She described the pain as a constant ache and that increased activity or cold and rainy weather increases the pain. The Veteran reported flare-ups, which decrease her mobility. A VA treatment note from January 2014 illustrates the Veteran had mild back pain with the straight leg test. At a May 2014 pain management consultation, the Veteran reported she has been trying to walk more and that she is trying to get through the aching due to increased activity. A preponderance of the evidence is against a finding that the Veteran has unfavorable ankylosis of the thoracolumbar spine. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran's complaints of pain, loss of motion, and functional loss as a result of her lumbar spine disability, notably her difficulty during flare-ups. However, the 40 percent evaluation assigned is the maximum evaluation based on limitation of motion. In order to obtain a higher rating, ankylosis must be shown. Therefore, further analysis of these provisions is not required. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has considered whether the Veteran is entitled to a higher rating under the rating criteria for IVDS. However, the evidence does not show that the Veteran had any episode of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in any 12-month period beginning 12 months prior to the Veteran's increased rating claim and through the appeal period. The March 2012 VA examiner stated the Veteran had IVDS, but the examiner noted the Veteran had no prescribed bed rest in the 12-month period preceding the March 2012 examination. There is no other report of prescribed bed rest during the appeal period. Therefore, a rating in excess of 40 percent for the lumbar spine disability is not warranted under the rating criteria for IVDS. The Board acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The Veteran is already separately rated for radiculopathy of the bilateral lower extremities, and those issues are addressed separately in this decision. In regard to a separate rating for a neurologic impairment such as a bowel or bladder impairment, the Veteran reported having "some urge incontinence" at a December 2009 VA appointment. There are no other reports of bladder impairment in the record. Therefore, the Board finds a separate compensable rating is not warranted for the one-time mentioning of incontinence, as the evidence does not reflect disability that would warrant a separate compensable rating under the pertinent rating criteria. 38 C.F.R. § 4.115a. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the claimant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In sum, the Board finds the criteria for a rating in excess of 40 percent for arthritis of the lumbar spine have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Radiculopathy of the Lower Extremities The Veteran was awarded service connection for radiculopathy of the lower extremities in a March 2013 rating decision with a noncompensable rating effective August 14, 2009 under Diagnostic Code 8520. 38 C.F.R. § 4.124a. The rating decision also awarded a 10 percent rating for each lower extremity beginning December 8, 2011. In January 2015, the RO continued the Veteran's 10 percent rating for the left lower extremity and increased the Veteran's rating for her right lower extremity to 20 percent effective October 10, 2014. Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis. An 80 percent rating is assigned where there is complete paralysis of the sciatic nerve, characterized as dangle and drop of the foot, with no active movement of the muscles below the knee possible, and weakened or (very rarely) lost flexion of knee. 38 C.F.R. § 4.124a. The rating code provides that the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Prior to December 8, 2011 The RO assigned a noncompensable rating for the Veteran's radiculopathy of the lower extremities from August 14, 2009 to December 7, 2011. The Board finds that a compensable rating during this period is not warranted. At a September 2009 VA examination, the Veteran reported weakness and radiating pain down her lower extremities. The VA examiner noted the motor and sensory examinations of the lower extremities were normal. A December 2009 VA treatment note reflects the Veteran reported numbness in the right leg and weakness in the lower extremities. The physical examination at the same visit illustrates the Veteran had normal strength and her sensation was intact in the lower extremities. The Board has considered the Veteran's reports of radiating pain and weakness in the lower extremities. However, the evidence of record reflects that the examinations of the Veteran's lower extremities revealed no sensory or motor abnormalities. Thus, a compensable rating for the period prior to December 8, 2011 is not warranted, as a preponderance of the evidence is against a finding that the Veteran's disability picture more nearly approximated mild incomplete paralysis of the sciatic nerve. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Beginning December 8, 2011 The RO assigned a 10 percent rating for the Veteran's radiculopathy of the lower extremities beginning December 8, 2011, and the RO assigned a 20 percent rating for the right lower extremity only beginning October 10, 2014. The Board finds that a rating in excess of 10 percent beginning December 8, 2011 for the left lower extremity is not warranted, a rating in excess of 10 percent from December 8, 2011 to October 9, 2014 for the right lower extremity is not warranted, and a rating in excess of 20 percent beginning October 10, 2014 for the right lower extremity is not warranted. The Veteran attended a VA examination in March 2012 for an evaluation of the Veteran's lumbar spine disability. As part of that examination, the VA examiner performed an examination for radiculopathy where the examiner noted the Veteran had a mild impairment of the sciatic nerve bilaterally. Further, the examiner noted the Veteran had reduced sensation to light touch in the bilateral lower legs and bilateral feet. Deep tendon reflexes were hypoactive at both knees and normal at the ankles. The Veteran had normal motor strength in the bilateral lower extremities aside from reduced hip flexion and knee extension of 4/5 on the right side. The Veteran reported mild paresthesia and numbness in both lower extremities. The Veteran reported at a VA pain management consultation in October 2013 that his leg pain has gotten worse the past couple of months with the pain being worse on the right side than the left. The Veteran attended a VA examination in October 2014 for an evaluation of his peripheral nerves conditions. The VA examiner noted the Veteran had mild incomplete paralysis of the left sciatic nerve and moderate incomplete paralysis of the right sciatic nerve. All testing of the other nerves was normal. The sensory examination revealed reduced sensation bilaterally in all aspects of the lower extremities except for the upper anterior thigh. The Veteran had normal strength in the lower extremities. In terms of the functional impact of the Veteran's condition, the examiner reported the Veteran's radiculopathy impedes the Veteran's ability to do prolonged standing and walking. The Veteran reported moderate constant pain on the right and severe constant pain on the left, no intermittent pain bilaterally, and moderate paresthesia and numbness bilaterally. She indicated that the symptoms of numbness waxed and waned in severity. The Board has considered the Veteran's reports of radiating pain, numbness, and paresthesia in the lower extremities. In terms of the right lower extremity, the evidence of record reflects no more than mild incomplete paralysis of the right sciatic nerve from December 8, 2011 to October 9, 2014. On October 10, 2014 VA examination, the Veteran reported worsening symptoms of moderate constant pain and moderate paresthesias and numbness. Sensory testing also revealed reduced sensation in the right lower extremity. Hence, the competent and probative evidence illustrates the Veteran had moderate incomplete paralysis of the right sciatic nerve at the October 10, 2014 VA examination. However, this evidence did not more nearly approximate moderately severe incomplete paralysis as only sensory findings were shown. See Miller, 28 Vet. App. 376. Therefore, a rating excess of 10 percent for radiculopathy of the right lower extremity is not warranted for the period from December 8, 2011 to October 9, 2014 and a rating in excess of 20 percent beginning October 10, 2014 for radiculopathy of the right lower extremity is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Regarding the left lower extremity, the evidence of record reflects that examination and reported symptoms regarding the Veteran's left lower extremity revealed no more than mild incomplete paralysis of the left sciatic nerve from December 8, 2011 to October 9, 2014. However, on October 10, 2014 VA examination, the Veteran reported having moderate paresthesias and numbness of the left lower extremity. Additionally, sensation was decreased in the thigh/knee through the foot and toes. Although the examiner indicated the left lower extremity was manifested by mild incomplete paralysis, the reported symptoms and examination findings for the left lower extremity were similar to those made for the right lower extremity. Therefore, the Board resolves any reasonable doubt in favor of the Veteran and finds that from October 10, 2014, radiculopathy of the left lower extremity was more nearly approximated by moderate incomplete paralysis and a higher 20 percent rating is warranted from that date. The Board acknowledges that at the October 10, 2014 examination, the Veteran reported having severe constant pain; however, when considering this reported symptom with the other reported symptoms and objective findings made at that time, the Board finds the evidence does not more nearly approximate a disability picture manifested by moderately severe incomplete paralysis. As such, a rating in excess of 20 percent from October 10, 2014 is not warranted. Major Depressive Disorder with Psychosis The Veteran's service-connected major depressive disorder with psychosis has been assigned a 50 percent disability rating prior to October 10, 2014 and 70 percent rating thereafter pursuant to the criteria of Diagnostic Code 9434, which is included under the General Rating Formula for Rating Mental Disorders. 38 C.F.R. § 4.130. A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9440. A 70 percent rating is warranted when there is objective evidence demonstrating 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; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Prior to October 10, 2014 The RO assigned a 50 percent rating for the Veteran's major depressive disorder with psychosis prior to October 10, 2014. Based on a review of the relevant evidence and the applicable law and regulations, it is the Board's conclusion that a rating in excess of 50 percent prior to October 10, 2014 for the Veteran's psychiatric disorder is not warranted. A review of VA treatment records illustrates a July 2010 mental status examination where the Veteran was fully oriented, had logical and goal directed speech, a linear thought process, no suicidal ideation, no psychosis, and down mood with a flat affect. During a January 2012 mental status examination, the Veteran was in good behavioral control with psychomotor retardation, her speech was normal, her mood was not bad, she had a full affect, she denied any thoughts to hurt herself or others, she had a normal thought process, and was fully oriented. A June 2013 mental status examination reflects the Veteran's mental status was the same as the January 2012 examination except her mood was "really good" at the June 2013 visit. An August 2014 mental status examination reflects the same information as the January 2012 and June 2013 examinations except the Veteran reported her mood had not been good lately and she had a restricted and tearful affect during the August 2014 mental status examination. The Board has considered the Veteran's January 2011 statement where the Veteran stated she does not function well enough mentally to work in the field of administration. Given the relatively normal mental status examinations during this period aside from the August 2014 mental status examination reflecting a depressed mood and restricted affect, the Board finds that a rating in excess of 50 percent is not warranted for this period. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In reaching the above conclusion, the Board finds that the severity of the symptoms and disability picture does not warrant a rating in excess of 50 percent. The Veteran's symptoms do not more nearly approximate a rating of 70 percent, as they are not of such a severity, frequency or duration, to result in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, or mood. Specifically, there is no evidence in the record of suicidal ideation, obsessed rituals that interfere with routine activities, near-continuous panic or depression affecting her ability to function individually, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or deficiencies in judgment. Therefore, the evidence of record does not support a rating at the next higher criteria than which the Veteran is rated under for this period. There are no other symptoms, either listed in the rating criteria or otherwise reflected in the record prior to October 10, 2014 of such frequency, duration, and severity that are reflective of occupational and social impairment with deficiencies in most areas. Therefore, a rating in excess of 50 percent is not warranted. Beginning October 10, 2014 The RO assigned a 70 percent rating for the Veteran's major depressive disorder with psychosis beginning October 10, 2014. Based on a review of the relevant evidence and the applicable law and regulations, it is the Board's conclusion that a rating in excess of 70 percent beginning October 10, 2014 for the Veteran's psychiatric disorder is not warranted. The Veteran attended a VA examination on October 10, 2014 to evaluate her psychiatric disability. The VA examiner indicated the level of occupational and social impairment to be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The examiner stated the symptoms that apply to the Veteran's psychiatric disorder are depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, and persistent delusions and hallucinations. During the mental status examination, the Veteran was noted to be well-groomed and appropriately attired, alert and fully oriented, her mood was depressed with congruent (flat) affect, her speech was somewhat impoverished but was otherwise normal, her thought process was linear, logical, and goal directed and negative for any active psychotic material, and she denied any homicidal or suicidal ideation. The Veteran reported that she is isolative and has lost friendships due to fighting, irritability, and social avoidance. Further, she reported she no longer has much interest in hobbies and activities and that a lack of motivation, anergia, and anhedonia have prevented her from engaging in activities such as going to dinner and engaging in outdoor activities lately. The Veteran reported she was fired from her last job in 2013 due to irritability and anger control problems. She reported depression symptoms of depressed mood, anhedonia, anergia, increased appetite, hypersomnia during the day, insomnia at night, feelings of worthlessness, psychomotor agitation, problems concentrating and making decisions. She reported psychotic symptoms that occur during periods of mood disturbance that consist of auditory and occasional visual hallucinations. In addition, the Veteran reported episodes of severe anxiety that began a few months ago and last 15 to 45 minutes at a time. The Veteran denied suicidal and homicidal ideation. Mental status examinations from January 2015 VA appointments reflect the Veteran was in good behavioral control, her mood was tense and upset, her affect was anxious, her judgment was intact, she had a normal thought process, no perceptual disturbances of any sensory modality, and she denied suicidal ideation. Although the competent and probative medical evidence shows an increase in the severity of the Veteran's major depressive disorder with psychosis beginning in October 2014, the Board finds that the increased 70 percent rating reflects the increase in severity. As such, a rating in excess of 70 percent is not warranted for this period. See Vazquez-Claudio, 713 F.3d at 116-17. In reaching the above conclusion, the Board finds that the severity of the symptoms and disability picture does not warrant a rating in excess of 70 percent. The Veteran's symptoms do not more nearly approximate a rating of 100 percent, as they are not of such a severity, frequency or duration, to result in total occupational and social impairment. Specifically, although the record reflects total occupational impairment from October 10, 2014, the evidence does not support a finding of total social impairment. There is no gross impairment in thought process or communication, persistent danger of hurting oneself or others, an inability to perform activities of daily living, disorientation to time and place, or evidence of memory loss of close relatives or her own name. Although the October 2014 VA examiner indicated that the Veteran had persistent delusions and hallucinations, the description of such symptoms indicated that they occurred during periods of mood disturbance and that visual hallucinations occurred only occasionally during these times. Thus, even when considering this symptom, the Board finds that it is not of such frequency, duration, and severity to cause total social impairment. There are no other symptoms, either listed in the rating criteria or otherwise reflected in the record beginning October 10, 2014 of such frequency, duration, and severity that are reflective of total social impairment. Therefore, as a preponderance of the evidence is against a finding that the Veteran's symptoms more nearly approximate total occupational and social impairment a rating in excess of 70 percent is not warranted. TDIU The RO awarded the Veteran entitlement to a TDIU effective October 10, 2014. The Veteran contends she is entitled to TDIU prior to October 2014 as she contends she was unemployable due to her service-connected disabilities prior to the October 2014 effective date. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, In this case, as of the Veteran's July 2009 application for TDIU, the Veteran had the following compensable service-connected disabilities: major depressive disorder with psychosis, rated at 50 percent; arthritis of the lumbar spine, rated at 40 percent; and status post fracture of the fourth digit on the right hand, rated as noncompensable. The combined rating for the service-connected disabilities as of February 2009 was 70 percent. Thus, the schedular requirements for a TDIU rating are met. The question remaining is whether the Veteran's service-connected disabilities (alone) render her incapable of participating in a substantially gainful occupation. Here, a balance of the evidence supports that the Veteran's service-connected disabilities substantially impacted her ability to secure and engage in types of employment at any exertional level prior to October 10, 2014. The Veteran's July 2009 TDIU claim reflects that she worked as a security officer from April 2003 to March 2004, as an inspector from April 2004 to June 2004, and as a secretary from November 2004 to August 2005 with the VA Medical Center in Alexandria. This form reflects the Veteran last worked full time in August 2005 and that she became too disabled to work in January 2006. While the July 2009 TDIU claim was still on appeal, the Veteran submitted an additional TDIU application in December 2014 that reflects she worked in administration from 2010 to 2012 and lost six months due to illness. She reported on that claim form that she became too disabled to work in 2012. Following a September 2009 VA examination, the VA examiner opined that "in general with the multiple problems of this Veteran most of the time this Veteran because of the various symptoms of her multiple medical problems would not be able to work." The examiner reported that the Veteran's disabilities impact her occupational activities in that she has memory loss, decreased concentration, decreased mobility, decreased manual dexterity, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in the upper and lower extremities, and pain. The Board gives great probative weight to this opinion as the opinion is consistent with the evidence of record, and in particular, is consistent with the Veteran's statements below. The Board notes that the Veteran reported at the September 2009 VA examination that due to her back pain she could work at a sedentary job, but she also stated that she would frequently be absent due to her back pain. Her consistent report of flare-ups that occur about once a week that she reported required her to stay in bed support that she was unable to work as of September 2009. The Veteran indicated on her December 2014 TDIU claim form that she worked from 2010 to 2012, but she also reported that she lost six months of work due to her disabilities. Additionally, in her August 2014 VA Form 9, Substantive Appeal, the Veteran reported that since her discharge from service she had gained employment on four occasions and that most of her employment lasted no more than one year. She indicated that she was either terminated from such employment or quit because of her mental and physical conditions. She also reported that her employment at the VA Medical Center in Alexandria in 2004 and 2005 was a temporary position with an opportunity to apply for a permanent position, and she did not apply for the permanent position due to the stressful environment. She stated that while gaining employment had been possible for her, maintaining it was very difficult due to her service-connected disabilities. Although the Veteran worked up until 2012, she missed work approximately one-quarter of the time due to her disabilities. She also has indicated an inability to maintain gainful employment for any substantial period and her work history supports those statements. As such, the Board still finds that the September 2009 VA opinion that she could not work is entitled to substantial weight of probative value. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Based on the foregoing, the Board finds that the overall evidence of record is at least in equipoise as to whether the Veteran would have had difficulty with most occupations due to her service-connected disabilities prior to October 10, 2014. Therefore, the Board concludes the Veteran was unable to secure or follow a substantially gainful occupation due to her service-connected disabilities prior to October 10, 2014 and that entitlement to a TDIU prior to October 10, 2014 is warranted. ORDER Entitlement to an effective date prior to February 25, 2009 for the 40 percent rating for the Veteran's service-connected arthritis of the lumbar spine is denied. Entitlement to a rating in excess of 40 percent for arthritis of the lumbar spine is denied. Entitlement to an initial compensable rating prior to December 8, 2011 for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent from December 8, 2011 to October 9, 2014 for radiculopathy of the left lower extremity is denied. Entitlement to an initial 20 percent, but no higher, rating from October 10, 2014 for radiculopathy of the left lower extremity is granted, subject to regulations governing the payment of monetary awards. Entitlement to an initial compensable rating prior to December 8, 2011 for radiculopathy of the right lower extremities is denied. Entitlement to an initial rating in excess of 10 percent from December 8, 2011 to October 9, 2014 for radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 20 percent from October 10, 2014 for radiculopathy of the right lower extremity is denied. Entitlement to a rating in excess of 50 percent prior to October 10, 2014 for major depressive disorder with psychosis is denied. Entitlement to a rating in excess of 70 percent from October 10, 2014 for major depressive disorder with psychosis is denied. Entitlement to a TDIU prior to October 10, 2014 is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs