Citation Nr: 21000569 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-99 800A DATE: January 5, 2021 ORDER A rating of 30 percent, but no higher, for a lower back disorder is granted effective February 15, 2013. A rating of more than 20 percent for a lower back disorder from August 1, 2010 to February 15, 2013 is denied. A rating of more than 10 percent for bilateral lower extremity (BLE) radiculopathy from May 27, 2010 to June 6, 2018 is denied. A rating more than 20 percent for BLE radiculopathy since June 6, 2018 is denied. Service connection for a major depressive disorder (MDD) secondary to a service-connected lower back disorder with BLE radiculopathy is granted. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From August 1, 2010 to February 15, 2013, the Veteran’s lower back disorder manifested with daily lower back pain; fatigue, weakness, stiffness, and decreased motion; lumbar flexion less than 60 degrees but greater than 30 degrees; pain with repetitive motion but no associated loss of ROM; and functional impairment including difficulty with heavy lifting, prolonged standing and walking, and driving. 2. Since February 15, 2013, the Veteran’s lower back disorder manifested with constant lower back pain radiating into the hips; flare-ups of pain at 10/10; pain on all ranges of motion; lumbar flexion less than 60 degrees but greater than 30 degrees; functional impairment including difficulty with heavy lifting, prolonged standing and walking, and driving; and additional functional loss during flare-ups and repeated use over time due to pain and lack of endurance. 3. From May 27, 2010 to June 6, 2018, the Veteran’s BLE radiculopathy manifested with mild incomplete paralysis. 4. Since June 6, 2018, the Veteran’s BLE radiculopathy manifested with moderate incomplete paralysis. 5. Resolving reasonable doubt in the Veteran’s favor, his MDD was caused by his service-connected lower back disorder and BLE radiculopathy. CONCLUSIONS OF LAW 1. From August 1, 2010 to February 15, 2013, the criteria for a 30 percent rating for a lower back disorder were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. Since February 15, 2013, the criteria for a 30 percent rating for a lower back disorder have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5243. 3. From May 27, 2010 to June 6, 2018, the criteria for a rating more than 10 percent for BLE radiculopathy were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.2, 4.6, 4.120, 4.124a, DC 8520. 4. Since June 6, 2018, the criteria for a rating more than 20 percent for BLE radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.2, 4.6, 4.120, 4.124a, DC 8520. 5. The criteria to establish service connection for MDD secondary to a service-connected lower back disorder and BLE radiculopathy have been approximated. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1978 to September 1982. In May 2019, the Board of Veterans’ Appeals (Board) remanded this matter to obtain records related to the Veteran’s Social Security Administration (SSA) Disability award. As VA received the requested records in April 2020, the remand directives were substantially complied with and the Board will proceed to decide the claims. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). As here, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to rating more than 20 percent for a lower back disorder since August 1, 2010. From May 27, 2010 to August 1, 2010, the Veteran was in receipt of a temporary total (100 percent) rating while recovering from a hemilaminotomy and foraminotomy. Since August 1, 2010, the Veteran’s lower back disorder has been rated 20 percent disabling under the General Rating Formula for the Spine. See 38 C.F.R. § 4.71a, DC 5243. The General Rating Formula provides: A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; and A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5243. 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. See Note 5 to DC 5243. The Veteran was afforded a VA spine examination in March 2011. He reported sharp, severe constant lower back pain that occurred daily. He denied flare-ups, radiating pain or incapacitating episodes. The Veteran reported functional impairment including difficulty with heavy lifting, prolonged standing and walking, and driving. He also reported having lower back surgeries for pinched nerves in 1999 and 2010. On range of motion (ROM) testing, the Veteran had lumbar (lower back) flexion to 45 degrees, extension to 10 degrees, lateral rotation to 20 degrees, and lateral flexion to 20 degrees. The examiner indicated there was objective evidence of pain following repetitive motion but not additional limitation of ROM. The examiner noted the Veteran’s symptoms included fatigue, decreased motion, stiffness, and weakness. The Veteran had an abnormal gait but no muscle atrophy or weakness, guarding, tenderness, or pain with motion. MRI (magnetic resonance imaging) of the lumbar spine showed stable alignment, no acute compression deformities, and scattered degenerative changes, most pronounced at the L5-S1 vertebrae. The examiner noted these findings were similar to a prior MRI in June 2010. A February 2013 VA emergency department (E.R.) note reports that the Veteran was seen in the E.R. for an acute flare-up of back pain that was so severe he could not sit up in bed. He reported his pain had also flared up a week prior while lifting his 15-month old son. The Veteran indicated his back pain was mainly in the left lower back area and did not radiate. He denied experiencing numbness and weakness in his legs. The attending clinician noted the Veteran had a history of increasing lower back pain and muscle spasms. No ROM measurements were taken at that time. MRI revealed degenerative disc disease (DDD) at the L5-S1 vertebrae with possible muscle spasm. In a May 2013 physical rehabilitation note, the Veteran reported he had to quit his trucking job due to his worsening lower back pain. The Veteran was afforded an additional VA back examination in October 2014. He reported increased lower back and hip pain. He reported constant pain at 6-8/10, and at 10/10 during flare-ups. During initial ROM testing, the Veteran had forward flexion to 65 degrees with pain beginning at 50 degrees, extension to 30 degrees with pain beginning at 25 degrees, right lateral flexion to 30 degrees with pain beginning at 20 degrees, and left lateral flexion to 30 degrees with pain beginning at 30 degrees. He had right and left lateral rotation to 30 degrees with no objective evidence of pain. The Veteran was able to perform repetitive use testing without additional limitation of ROM. The examiner noted the Veteran had functional loss due less movement than normal and pain on movement. The examiner reported that the Veteran did not demonstrate guarding or muscle spasm resulting in an abnormal gait or spinal contour. Ankylosis of the spine and intervertebral disc syndrome (IVDS) were not present. The examiner indicated MRI testing revealed moderate DDD and foraminal stenosis. In May 2015, the Veteran was afforded a general medical examination in connection with his SSA claim. At the examination, he reported experiencing pain mostly in the left lower back area that did not radiate below the waist. The examiner noted the Veteran had poor lumbar ROM but straight leg testing was normal and the Veteran appeared quite muscular and in good shape. Objective testing indicated full strength in all muscle groups of the lower extremities, normal reflexes, and normal coordination. At an August 2016 VA examination, the Veteran continued to report flare-ups of lower back pain when walking or standing. On initial ROM testing, he had flexion to 60 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. He had pain on all ranges of motion contributing to functional loss, although the examiner indicated decreased ROM itself did not contribute to functional loss. The examiner noted there was no evidence of pain with weight bearing, guarding, or muscle spasm. The Veteran performed repetitive use testing without any additional loss of ROM. The Veteran was afforded an additional VA examination in June 2018. He reported constant lower back pain that radiated into his hips and a tingling sensation in his lower extremities. The examiner noted the Veteran’s lower back disorder would prevent him from doing any type of job requiring prolonged standing, walking, lifting or bending. Initial ROM testing indicated forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees, all with pain. The Veteran was able to perform repetitive use testing without any additional loss of function or ROM. He had pain with weight bearing, disturbance of locomotion, and interference with sitting and standing. The Veteran exhibited guarding, although it did not result in an abnormal gait or spinal contour. The examiner indicated the examination was consistent with the Veteran’s statements describing functional loss during repeated use over time and during flare-ups. She opined that pain and lack of endurance would cause additional functional loss under those circumstances. The examiner further noted the Veteran had IVDS but had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. In a January 2020 VA treatment record, the Veteran reported his vehicle was “rear-ended” and felt a “jolt to his spine.” In a February 2020 record, he reported lower back pain that radiated across his back but not down into his buttocks or legs. He reported stiffness and muscle spasms in his lower back but denied any numbness, tingling, or burning. From August 1, 2010 to February 15, 2013, the Veteran’s lower back disorder manifested with daily lower back pain; fatigue, weakness, stiffness, and decreased motion; lumbar flexion of 45 degrees; pain with repetitive motion but no associated loss of ROM; and functional impairment including difficulty with heavy lifting, prolonged standing and walking, and driving. These symptoms warrant a 20 percent rating under DC 5243 based on lumbar flexion less than 60 degrees but greater than 30 degrees. See 38 C.F.R. § 4.71a, DC 5243. Since February 15, 2013, the Veteran’s lower back disorder manifested with constant lower back pain radiating into the hips; flare-ups of pain at 10/10; pain on all ranges of motion; lumbar flexion less than 60 degrees but greater than 30 degrees; functional impairment including difficulty with heavy lifting, prolonged standing and walking, and driving; and additional functional loss during flare-ups and repeated use over time due to pain and lack of endurance. At worst, the Veteran’s lower back demonstrated flexion to 50 degrees at the June 2018 VA examination, which would normally warrant a 20 percent rating under DC 5243. However, since his February 15, 2013 E.R. visit, the Veteran has routinely reported experiencing severe flare-ups which resulted in additional functional loss due to pain and lack of endurance. Given the Veteran’s additional functional loss due to lower back pain, a 30 percent rating is appropriate, effective February 15, 2013, the date these symptoms were first documented. See 38 C.F.R. § 4.59, Deluca, supra. A 30 percent rating is not warranted before February 15, 2013 because the Veteran consistently denied experiencing flare-ups prior to that date, and there was no evidence of additional functional loss due to pain. A rating more than 30 percent is not warranted at any point during the appellate period because the record does not show that the Veteran has ever had ankylosis or lumbar forward flexion less than 30 degrees. See 38 C.F.R. § 4.71a, DC 5243. For these reasons, a 30 percent rating, but no higher, for the Veteran’s lower back disorder is granted, effective February 15, 2013. A rating more than 20 percent prior to February 15, 2013 is denied. 2. Entitlement to a rating more than 10 percent for BLE radiculopathy from May 27, 2010 to June 6, 2018, and a rating more than 20 percent thereafter. The Veteran’s BLE radiculopathy is evaluated under DC 8520, which provides ratings for paralysis of the sciatic nerve. His radiculopathy has been rated as 10 percent disabling from May 27, 2010 to June 6, 2018, and 20 percent thereafter. DC 8250 provides: A 10 percent rating is warranted for mild incomplete paralysis; A 20 percent rating is warranted for moderate incomplete paralysis; and A 40 percent rating is warranted for moderately severe incomplete paralysis. 38 C.F.R. §4.124a, DC 8250. The term “incomplete paralysis,” 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is “equitable and just.” See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. At the March 2011 VA examination, the VA examiner noted the Veteran had BLE radiculopathy associated with his lower back disorder. The Veteran reported occasional weakness in his legs and feet that caused him to fall. However, objective testing indicated normal deep tendon reflexes, motor strength and muscle tone. The examiner noted the Veteran’s radiculopathy had significantly improved since his May 2010 spinal surgery. In February 2013, the Veteran was admitted to the E.R. for a flare-up of lower back pain, but he denied having any numbness, radiating pain, or tingling in his lower extremities. MRI taken at that time indicated possible muscle spasm. From May to July of 2013, the Veteran denied having any neurological or radicular symptoms related to the lumbar spine. At the October 2014 VA examination, the Veteran reported bilateral radicular symptoms including severe intermittent pain and severe paresthesias and dysesthesias (burning, tingling and/or prickling sensations), but denied experiencing numbness. Objective testing indicated normal muscle strength and reflexes. The examiner noted involvement of the sciatic nerve root and assessed the severity of the Veteran’s BLE radiculopathy as moderate. He indicated the Veteran had no other neurologic abnormalities or findings related to his lower back disorder. In May 2015, the Veteran was afforded a general medical examination in connection with his claim for social security disability benefits. At the examination, he reported experiencing pain mostly in the left lower back area that did not radiate below the waist. The examiner noted the Veteran appeared quite muscular and in good shape. Objective testing indicated full strength in all muscle groups of the lower extremities, normal reflexes, and normal coordination. At the August 2016 VA examination, the Veteran reported symptoms of severe intermittent pain, severe paresthesias/dysesthesias, and mild numbness, all bilaterally. The examiner indicated the Veteran had no other radicular symptoms and assessed his radiculopathy as mild. Objective testing indicated normal muscle strength, deep tendon reflexes, and no muscle atrophy. Straight leg testing was negative and sensory testing indicated decreased sensation in the bilateral feet and toes only. The Veteran was afforded an additional VA examination in June 2018. He reported having constant lower back pain that radiated into his hips only. The Veteran also reported having burning pain and a tingling sensation in his feet at night. He indicated he had used a cane since 2010. During reflex testing, the Veteran had hypoactive (decreased) deep tendon reflexes in his bilateral knees and ankles. He did not have muscle atrophy or reduced muscle strength and straight leg testing was negative. He endorsed radicular symptoms of moderate intermittent pain, mild paresthesias and dysesthesias, and mild numbness bilaterally. The VA examiner assessed the Veteran’s BLE radiculopathy as moderate. In a February 2020 record, he reported lower back pain that radiated across his back but not down into his buttocks or legs. He reported stiffness and muscle spasms in his lower back but denied experiencing radicular symptoms including numbness, tingling, or burning. From May 27, 2010 to June 6, 2018, the Veteran’s BLE radiculopathy manifested with reports of severe intermittent pain, severe paresthesias and dysesthesias; and decreased sensation in his bilateral feet and toes. Given these symptoms, a 10 percent rating under DC 8520 for mild incomplete paralysis is warranted. 38 C.F.R. §4.124a, DC 8250. A rating of more than 10 percent prior to June 6, 2018 is not warranted. Before the June 2018 VA examination, the Veteran reported wholly sensory symptoms of pain, paresthesias/dysesthesias, and decreased sensation in his feet and toes only. DC 8520 provides that when nerve involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Objective testing during VA examinations in March 2011, October 2014, and August 2016 routinely demonstrated normal muscle strength, coordination, reflexes, and muscle tone. Although the October 2014 VA examiner characterized the Veteran’s radiculopathy as “moderate,” this observation is not dispositive. Prior to June 6, 2018, the Veteran only reported intermittent sensory symptoms without objective evidence of motor involvement. For these reasons, prior to June 6, 2018, his BLE radiculopathy was overall still mild at best under DC 8520. At the June 6, 2018 VA examination, the examiner noted objective evidence of motor involvement in the bilateral lower extremities that had not previously been documented. These additional symptoms are represented by the 20 percent rating since June 6, 2018, which contemplates radiculopathy of a moderate degree. For these reasons, a rating more than 10 percent for BLE radiculopathy is denied during the period of May 27, 2010 to June 6, 2018, and a rating more than 20 percent is denied thereafter. 3. Entitlement to service connection for MDD secondary to a service-connected lower back disorder and BLE radiculopathy. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Since the Veteran does not allege direct service connection, nor does the record raise this theory of entitlement, the Board will restrict its analysis to secondary service connection only. The Veteran has been diagnosed with MDD and contends the disorder was caused or aggravated by his service-connected lumbar DDD and BLE radiculopathy. The primary issue is whether the medical evidence establishes a nexus, or link, between his psychiatric and musculoskeletal disorders. In an April 2015 independent medical evaluation (IME), the Veteran reported that since 2012, his back and leg pain worsened to the point where he could not walk, run, or get out of bed. Although he had depressive symptoms before 2012, the Veteran reported worsening symptoms due to increasing lower back pain and leg pain. After reviewing the Veteran’s medical history, the examining psychologist opined the Veteran’s lower back disorder and radiculopathy caused and/or aggravated his MDD. In support of her opinion, she cited medical research and literature indicating a link between “medical and psychiatric difficulty,” particularly in patients physically incapacitated by their medical conditions. The Veteran was afforded a VA psychiatric examination in March 2018. A VA psychologist indicated the Veteran had depression since at least 2002 and indicated an additional diagnosis of post-traumatic stress disorder (PTSD) related to more recent family/marital problems. The psychologist indicated she could not differentiate between the Veteran’s depression and PTSD symptoms but concluded that neither condition was caused by the Veteran’s lower back and leg problems. However, the examiner did not explain how, from a medical standpoint, she was able to pinpoint and differentiate the stressors causing Veteran’s psychiatric disorders. Additionally, she did not support her opinion with medical literature or comment on the studies cited by the April 2015 IME report. The March 2018 VA examiner stated that while chronic pain is stressful and impacts depression, there was no evidence that the Veteran’s depression was aggravated beyond its normal progression by his lower back disorders, noting the Veteran had recurrent depressive episodes since at least 2002. She did not comment on the frequency and severity of the Veteran’s depressive episodes or explain why the Veteran’s worsening psychiatric symptoms were the normal progression of his disorders. In a January 2019 report, a second private psychologist opined that the Veteran’s service-connected lumbar DDD and radiculopathy aggravated his MDD. The psychologist indicated his opinion was based on a thorough review of the Veteran’s medical history, VA treatment records, and previous psychiatric examinations. He reviewed the March 2018 VA examination report and noted the examiner did not explain her conclusion that there was no evidence that the Veteran’s lumbar disorders contributed to his depression. The private psychologist cited extensive medical literature regarding the relationship between depression and musculoskeletal disorders. He acknowledged the Veteran’s familial/marital stressors but opined it is impossible to separate those stressors from the Veteran’s chronic pain due to his service-connected disorders. The medical evidence regarding the link between the Veteran’s musculoskeletal disorders and his depressive disorder is in approximate balance. The April 2015 and January 2019 private medical opinions are highly probative as to the cause of the Veteran’s current depression because of the doctors’ expertise, training, education, proper support and explanations, and thorough review of the Veteran’s records. These well-supported opinions outweigh the conclusory March 2018 VA opinion. Affording the Veteran the benefit of the doubt, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms “compensation,” “rating,” and “service connection” as although related, each having a distinct meaning as specified by Congress). REASONS FOR REMAND 4. The issue of entitlement to a TDIU is remanded. As the Board has granted service connection for MDD, which has yet to be rated, the issue must be remanded to the Agency of Original Jurisdiction (AOJ) for re-adjudication after the rating for MDD has been established. The matter is REMANDED for the following action: After the disability rating for MDD has been assigned, readjudicate the claim for entitlement to TDIU. If any benefit on appeal remains denied, issue a supplemental statement of the case. Then, if indicated, the case should be returned to the Board for appellate disposition. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.