Citation Nr: 21064826 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-28 826 DATE: October 21, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for low back disability is reopened. Entitlement to service connection for a low back disability is granted. Entitlement to a rating of 70 percent, and no higher, for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to July 4, 2019, is denied. Entitlement to a TDIU since July 4, 2019, based on dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder alone, is denied. REMANDED Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for a sleep disability is remanded. FINDINGS OF FACT 1. A December 1989 rating decision, in pertinent part, denied entitlement to service connection for a low back disability. The appellant was duly notified of the RO's decision and her appellate rights in a December 1989 letter, but did not appeal, nor was new and material evidence received within the applicable period. 2. A June 2006 rating decision, in pertinent part, denied the application to reopen the previously denied claim of entitlement to service connection for a low back disability. The appellant was duly notified of the RO's decision and her appellate rights in a June 2006 letter, but did not appeal, nor was new and material evidence received within the applicable period. 3. Evidence received since the final June 2006 rating decision denying service connection for a low back disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a low back disability. 4. The evidence is in relative equipoise as to whether the appellant's current low back disability was incurred in or is otherwise causally related to her active service. 5. Throughout the period on appeal, the appellant's dysthymic disorder with major depression, chronic sleep impairment, and alcohol use has been manifested by symptoms which caused occupational and social impairment with deficiencies in most areas; the symptoms did not cause total occupational and social impairment. 6. For the period prior to July 4, 2019, the appellant was not unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. 7. Since July 4, 2019, the appellant has not been unable to secure or follow a substantially gainful occupation by reason of service-connected dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder alone. CONCLUSIONS OF LAW 1. The December 1989 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 38 U.S.C. § 4005(c) (1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1989). 2. The June 2006 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 3. New and material evidence has been received to warrant reopening of the claim of service connection for a low back disability. 38 U.S.C. §§ 5107, 5108 (2018); 38 C.F.R. § 3.156 (2021). 4. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1131; 5107; 38 C.F.R. § 3.102, 3.303, 3.304. 5. The criteria for entitlement to a rating of 70 percent, and no higher, for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9435. 6. The criteria for entitlement to a TDIU prior to July 4, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 7. The criteria for entitlement to a TDIU since July 4, 2019, based on dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder alone, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from July 1985 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A September 2014 rating decision, in pertinent part, increased the evaluation of dysthymic disorder with major depressive disorder and chronic sleep impairment to 50 percent, effective April 29, 2014, and denied entitlement to a rating in excess of 40 percent for fibromyalgia. A March 2016 rating decision, in pertinent part, denied entitlement to service connection for a sleep disability, secondary to fibromyalgia and denied the application to reopen the previously denied claim of entitlement to service connection for chronic fatigue syndrome, secondary to fibromyalgia. The appellant was afforded a hearing before the undersigned by videoconference in February 2019. A transcript is of record. In August 2020, the Board, in pertinent part, reopened the previously denied claim of entitlement to service connection for chronic fatigue syndrome and remanded the issues of (1) entitlement to a rating in excess of 50 percent for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder; (2) entitlement to service connection for a sleep disability, secondary to fibromyalgia; and (3) entitlement to service connection for chronic fatigue syndrome, secondary to fibromyalgia. A December 2020 rating decision, in pertinent part, awarded a 70 percent evaluation for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder, effective September 30, 2020, and awarded entitlement to a TDIU, effective July 4, 2019. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A Supplemental Statement of the Case (SSOC) was issued in January 2021. An August 2018 rating decision, in pertinent part, again denied the previously denied claim of entitlement to service connection for a low back disability. The appellant filed a timely Notice of Disagreement (NOD), received in November 2018. A Statement of the Case (SOC) was issued in July 2020. A timely substantive appeal was received in July 2020, upon which the appellant stated that she did not desire a hearing before a VLJ on the matter. While this appeal was certified to the Board in August 2020, it was not addressed in the Board in August 2020 because it had not yet been docketed and the appellant and her attorney had not been provided notice to submit argument. However, the appeal has since been docketed under the legacy system and the appellant and her attorney have been afforded the opportunity to submit argument or evidence on the matter. Thus, the application to reopen the previously denied claim of entitlement to service connection for a low back disability will be addressed by the Board at this time. The appellant submitted an Appeals Satisfaction Notice in January 2021, well prior to the issuance of the January 2021 SSOC. Thus, because it was unclear which appeal or appeals to which the appellant referred, the Board requested clarification from the appellant and her attorney in an August 2021 letter. The appellant's attorney explained in September 2021 correspondence that the January 2021 Appeals Satisfaction Notice had been sent in error and that the appellant wished to continue her appeal as to all of the issues listed on the cover page of this decision. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). 1. The application to reopen the previously denied claim of entitlement to service connection for a low back disability. A December 1989 rating decision, in pertinent part, denied entitlement to service connection for a low back disability on the basis that there was no evidence of nexus between in-service back pain which resulted in a June 1987 hospitalization and a current low back disability. Additionally, there was no permanent or chronic disability resulting from the in-service mechanical low back pain. The appellant was duly notified of the RO's decision and her appellate rights in a December 1989 letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1989). A June 2006 rating decision, in pertinent part, denied the application to reopen the previously denied claim of entitlement to service connection for a low back disability on the basis that there was still no evidence of nexus between in-service back pain which resulted in a June 1987 hospitalization and a current low back disability. The appellant was duly notified of the RO's decision and her appellate rights in a June 2006 letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final decision discussed above. Received in February 2020 was a disability benefits questionnaire and medical opinion of P.A., D.C., D.A.C.N.B. (Diplomate of the American Chiropractic Neurology Board), dated May 2019. It was noted that the chiropractor had reviewed a September 1988 DA Form 3349 and December 2018 X-rays of the sacrum, coccyx, and lumbosacral area. Following examination of the appellant, mechanical back pain syndrome, lumbosacral sprain/strain, and degenerative disc disease were diagnosed, in addition to fibromyalgia. The chiropractor opined that the appellant's current low back disability was at least as likely as not caused by or incurred during her active service because the currently diagnosed low back disability was consistent with the "condition diagnosed and treated in the service treatment records." The chiropractor explained that he had treated the appellant since August 1989 off and on for back pain. Although the appellant's back pain had been exacerbated by two automobile accidents, one in 2007 or 2008 and the other in December 2012, the chiropractor noted that the appellant had consistently used massage and acupuncture for relief of her chronic back pain over the years, ever since he began treating her in 1989. This evidence is new, as the evidence of record at the time of the last final decision did not include any indication of a nexus between a low back disability and the appellant's active service. Further, this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claim and triggers VA's duty to provide a medical examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination should be provided). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claim of service connection for a low back disability reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For the reasons that follow, the record is sufficient to warrant granting the benefits sought with respect to the claim of service connection for a low back disability. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection for a low back disability. For the reasons that follow, the Board finds that the evidence is in relative equipoise as to whether the appellant's current low back disability was incurred in or is otherwise causally related to her active service. Service treatment records reveal that the appellant complained of, and was treated for, low back pain on multiple occasions between June 1987 and separation in July 1989. Indeed, in June 1987, the appellant was seen on multiple occasions for persistent lower back pain, although imaging studies at the time were essentially normal regarding the lumbar spine. In April 1988 and June 1988, the appellant was seen for continuing low back pain, which had been present for approximately the past year. The appellant complained of back spasms in April 1989. During the appellant's June 1989 separation examination, examination of the spine was abnormal in that there was tenderness to the sacral and shoulder areas, consistent with fibrositis. On the accompanying Report of Medical History, the appellant endorsed recurrent back pain. During a June 1990 periodic examination, the spine was examined and found to be essentially normal. However, the appellant endorsed recurrent back pain at that time. A November 1990 letter from P.A., M.D., states that the appellant was seen for neck, back, hip, and pelvic pain in October 1990. It was noted that the appellant had been hit by a car in 1980 and thrown several feet, which resulted in two weeks of hospitalization. However, it was only three and a half years ago that the appellant experienced severe left hip pain, back spasms, and unable to function due to such. A January 1991 MRI was performed due to left hip and lower back pain to rule out multiple sclerosis. The impression was a normal lumbar spine. A February 2011 VA medical opinion notes that, although the appellant was involved in another motor vehicle accident three years prior, the appellant's back pain had been present prior to the accident, although it had worsened after the accident. The VA examiner explained that fibromyalgia and fibrositis were interchangeable terms at the time of the appellant's 1989 separation examination, and opined that the appellant's low back pain was likely attributable to such. The appellant was afforded a contracted back examination in July 2018. The claims file was reviewed. Following examination of the appellant and review of the claims file, degenerative arthritis of the spine was diagnosed and the contracted examiner opined that it was less likely than not that such was incurred in or otherwise causally related to the appellant's active service. The examiner explained that the appellant was seen for fibrositis and mechanical low back pain in service and at that time, X-rays were normal of the lumbar spine. There was also a negative spine bone scan. Thus, there was no evidence of degenerative joint disease in service. Mechanical low back pain was noted to not result in degenerative joint disease of the lumbar spine. Given the negative bone scan and X-ray in service, myofascial pain was the most likely cause of her in-service back pain, which is not a cause of degenerative joint disease. Received in February 2020 was a disability benefits questionnaire (DBQ) completed by P.A., D.C., D.A.C.N.B. in May 2019, from which mechanical back pain syndrome, lumbosacral sprain/strain, and degenerative disc disease were diagnosed. P.A. then opined that the appellant's current low back disability was at least as likely as not incurred in or otherwise causally related to her active service. P.A. reported that he first treated the appellant in August 1989 and has treated her off and on for the past 30 years. The appellant's condition had been present that entire time, although it had been exacerbated by two motor vehicle accidents, the first of which occurred in 2007 or 2008, and the second occurred in December 2012. P.A. noted that the appellant has consistently used massage and acupuncture since 1989 for relief of her chronic disability. The appellant was afforded a contracted spine examination in July 2020. The claims file was reviewed. Following examination of the appellant and review of the claims file, degenerative arthritis was diagnosed and the examiner opined that it was less likely than not that the appellant's current back disability was incurred in or was otherwise causally related to her active service. The examiner noted that the appellant's back pain had resolved by the time of her separation examination because such was negative for pertinent complaints or treatment. The examiner also noted that the appellant's post-service injuries, and a reported pre-service back injury in 1980, could have contributed to her back issues as well. Applying the facts to the criteria set forth above, the Board finds that the evidence is in relative equipoise as to whether the appellant's current low back disability was incurred in or is otherwise causally related to her active service. While the February 2011 medical opinion attributes the appellant's back pain to current fibromyalgia, it does not address whether the appellant also has a separate back disability in addition to fibromyalgia. Indeed, additional medical records reveal that the appellant has multiple current back diagnoses during the period on appeal, including arthritis. The July 2018 medical opinion is entitled to minimal probative weight because it does not consider the appellant's reports of continuity of symptomatology. The Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The July 2020 medical opinion is speculative in nature as to the effects of non-service injuries. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). Additionally, it appears to be based upon an inaccurate factual premise as the appellant did complain of recurrent back pain at the time of her separation examination. The Board thus affords the opinion minimal probative weight. Although the opinion of P.A. does not address the presence or relevance of fibromyalgia, it does take into account the appellant's reports of continuity of symptomatology, and it is also based upon treatment of the appellant since separation. As such, despite any inadequacies in the positive opinion of P.A., the evidence is at least in equipoise as to whether the appellant's current low back disability was incurred in or is otherwise causally related to her active service. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for a low back disability. Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The appellant's acquired psychiatric disability has been rated under the criteria contained in the General Rating Formula for Mental Disorders. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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. Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a veteran 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, 116 (Fed. Cir 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 118. The Federal Circuit indicated that "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio, at 114-118. 3. Entitlement to a rating in excess of 50 percent for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder prior to September 30, 2020. 4. Entitlement to a rating in excess of 70 percent for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder from September 30, 2020. For the reasons that follow, the Board finds that the evidence is in relative equipoise as to whether a 70 percent rating is warranted for the appellant's service-connected dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder prior to September 30, 2020. The Board also finds that the preponderance of the evidence is against the award of entitlement to a rating in excess of 70 percent for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder for any portion of the period on appeal. The appellant was afforded a VA psychiatric examination in June 2014. The claims file was reviewed. Following examination of the appellant and review of the claims file, the VA psychologist opined that the appellant experienced occupational and social impairment with reduced reliability and productivity. The appellant reported that she was taking care of her mother who had dementia. The appellant also reported that she moved within the last year but has still made several friends. She used to enjoy hobbies such as stained glass and swimming, but had not performed them recently. The appellant had worked as a nurse for a year but resigned in May 2014. Although she got along well with patients, there were difficulties with other staff members. It was noted that the appellant was given an ultimatum to resign or be fired after coworkers noticed alcohol on her breath and a BAC test showed some alcohol in her blood. The appellant had previously worked as a certified acupuncturist with her own practice. However, she was no longer able to support herself doing so because she had fewer clients due to a recent economic downturn. She indicated that she hoped to establish a part-time acupuncturist practice in her new town. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Examination revealed the appellant to be alert, coherent, fully-oriented, well-groomed, polite, and cooperative in manner. Thought processes were logical and goal-directed. Affect was somber with frequent tearfulness consistent with topics discussed. Her underlying mood was dysphoric. Current thoughts of suicide were denied and there was no evidence of a formal thought disorder. The appellant was capable of managing her own financial affairs. With respect to the appellant's ability to perform occupational tasks with respect to her psychiatric symptoms, the VA psychologist opined that she would not likely experience impairment in a work environment with (a) frequent interactions with customers, co-workers, or supervisor; (b) moving machinery or equipment; or (c) frequent driving, because the appellant always had good rapport with her nursing patients and because depressive symptoms do not increase the likelihood of accidental injuries with moving equipment or machinery or with driving. The appellant would experience mild impairment in a work environment with (a) a need for sustained concentration and focus; (b) that is fast-paced, complex, or frequently changing; or (c) rigid adherence to a set work schedule, because depression symptoms of impaired concentration and low energy could negatively affect such. Notably, although the appellant reported she had trouble getting sick leave approved, there was no indication of excessive use of sick leave or tardiness or leaving early from work. In a statement received in January 2015, the appellant argued that a 70 percent rating was warranted for her psychiatric disorder. She endorsed frequent nightmares about past miscarriages and fertility problems that were residuals of in-service surgery. She stated that such created distance with her prior husbands and caused both of her divorces. The appellant noted that she has attempted to find, build, and maintain a stable relationship since her second divorce but has been unable to do so for nearly two decades and avoids intimacy. She also noted that she has problems with crowds and resorts to alcohol use when she is too depressed. The appellant explained that her drinking of alcohol was not the reason she quit her job. Rather, her supervisor was very difficult to work with and was looking for a way to get rid of her. In a June 2016 statement from S.S., M.D., it was noted that Dr. S.S. had known the appellant for about 25 years, first as her family practice physician and later as her somatic psychotherapist. Dr. S.S. had treated the appellant for psychiatric symptoms from 2004 to 2011. Recently, they had another visit. Dr. S.S. opined that the appellant was considerably less well than before during the 2016 visit when compared to the last visit in 2011. It was remarkable that the appellant was still working full-time due to her psychiatric and non-psychiatric symptoms, but in the not-so-distant future, the appellant may no longer be able to sustain full-time work. Dr. S.S. stated that consideration of a 100 percent permanent and total disability rating should be considered at that time, and opined that the appellant would not be able to work longer than two to five more years as a result of all her health problems. Dr. S.S. also opined that the appellant met the criteria for a 70 percent rating at present because of her failure to maintain relationships and social phobias. In a February 2019 letter, H.F., M.D., recommended that the appellant stop working because of depression, abdominal pain and endometriosis, fibromyalgia, low back pain, and declining mental health, and that a 100 percent permanent and total rating be awarded. During the February 2019 Board hearing, the appellant endorsed symptoms of severe depression and difficulty establishing and keeping relationships. She tries to hold her emotions in check while at work and then when she goes home she will have crying spells and feel upset, pretty much daily. She noted that she had some strained relationships with her supervisor and some coworkers, but not all. The appellant explained that her symptoms did not seem to impact relationships with the Veterans she works with, perhaps maybe just 10 percent of the time. The appellant worked as an acupuncturist and also took care of her elderly mother, who had a great deal of health problems of her own. She reported that her symptoms had increased since her June 2014 examination, particularly with regard to suspiciousness. Panic attacks were endorsed three to four times a week. The appellant reported six hours of broken sleep nightly. She also endorsed memory problems with respect to forgetting names, directions, and some events. The appellant endorsed decreased personal hygiene or appearance four times per week. Impulse control difficulties occurred two to three times a week, described as impulsively shopping or being at a loss of what to do with her patients. Obsessive rituals such as prayer were endorsed. The appellant took five to seven days off per month due to her psychiatric symptoms, which caused feelings of guilt because it delayed help for her veteran patients. The appellant endorsed alcohol abuse as a way of coping with her symptoms. The appellant was afforded a contracted psychiatric examination in November 2019. The claims file was reviewed. Following examination of the appellant and review of the claims file, the contracted psychologist opined that the appellant experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The appellant reported that, following her resignation from a VA facility in May 2014, she was later hired as an acupuncturist and eventually left that position in June 2019 after she did not get her national certification as required. The appellant was offered a nursing position but could not perform the occupational tasks required due to her physical limitations. The appellant noted that she took on many patients and enjoyed her work as an acupuncturist. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory, or stereotyped speech, impaired judgment, disturbances of motivation and mood, and suicidal ideation. The contracted psychologist noted that the appellant spent the majority of the clinical interview discussing her pain and her problems regarding her ability to work. She was tangential regarding this and at times difficult to redirect. She was tearful at times, especially when discussing her work-related difficulty due to fibromyalgia. She was oriented to all spheres. There was no history of, and there were no current, hallucinations. The appellant denied any current suicidal thoughts but noted that she has a history of suicidal ideation since age 12 and that she has thought more about suicide since April 2019 and that the thoughts come and go. She denied any plan or intent, however. She was capable of managing her own financial affairs. With respect to functional impairment, the contracted psychologist noted that the appellant herself described her limitations as being physical in nature. However, she appeared to have interpersonal problems which at times lead to crying spells and a decrease in work efficiency. June 2020 VA medical records reveal that the appellant called repeatedly to complain about the medications prescribed. Such was reported to the Disruptive Behavior Reporting System. The appellant was afforded a medication management telephonic visit with a VA psychiatrist in July 2020. She reported a recent sexual assault/trauma within the past year that was affecting her ability to sleep, although she did not want to discuss it further. The appellant felt overwhelmed and stressed with familial issues, which may be contributing to her memory issues. The appellant was focused on recovering from alcohol and made reference to two boyfriends. She felt that people were dancing on eggshells around her and reported that this was the twelfth day that she felt "normal and functional." Mental status examination revealed a cooperative and pleasant appellant with normal speech. Mood was "fairly down" and affect was congruent. Thought process was circumstantial and there was no suicidal or homicidal ideations. There were no psychotic symptoms. Regarding cognitive ability, there appeared to be some short-term memory impairment. Insight and judgment were grossly intact. Medications were adjusted. The appellant was afforded a contracted psychiatric examination in September 2020. The claims file was reviewed. Following examination of the appellant and review of the claims file, the contracted psychologist opined that the appellant experienced occupational and social impairment with reduced reliability and productivity. It was noted that the appellant retired in July 2019 from her position as a nurse/acupuncturist. She then moved to be near her children. The appellant was psychiatrically hospitalized once in May 2020 but left against medical advice. The appellant had been hospitalized electively but left prematurely because she found the conditions and treatment to be disturbing. The appellant denied any history of suicidal attempts or ideation since her last examination, particularly because she experienced a family suicide decades ago which reinforced her conviction that she would never do so herself. The appellant denied current alcohol consumption and had been sober for 130 days. The appellant noted that she had been briefly hospitalized for a seizure disorder but believed it was due to her alcohol use. Symptoms included depressed mood, anxiety, panic attacks more than once a week, mild memory loss, flattened affect, and disturbances of motivation and mood. Examination revealed a somewhat formally dressed appellant who was dressed neatly with good grooming. She was polite and cooperative but presented with flat affect and monotone speech. Her mood was mildly dysthymic. The appellant answered questions in an organized, coherent manner without signs of formal thought disorder. She was alert, oriented, and engaged with surroundings. The appellant's affect became brighter as she left the office and she told a brief story about an event that had occurred that morning. She also stated that she believed she had PTSD and desired to be diagnosed as such. She was capable of managing her own financial affairs. The appellant noted that her current mood was very labile. She can feel very low and sad and then quite elevated in a manner of minutes to hours to days, but spent more time feeling low. She noted feelings of worthlessness, hopelessness, and helplessness when she feels low. She also noted anhedonia and low motivation. Sleep impairment was present no matter what mood she was in. Even when in an elevated mood state, she denied feelings of high energy or low appetite. High anxiety and excessive worry were endorsed. Panic attacks occurred daily and lasted several minutes at a time. Concentration was impaired. The appellant had noted recent declines in short-term memory and has forgotten the names of close friends and family members, as well as appointments and entire conversations. She also endorsed word finding problems. She must write down items or tasks to avoid forgetting about them. She was "so-so" about keeping track of personal items. But she denied disorientation or getting lost when driving to familiar locations. With respect to the appellant's ability to work, the contracted psychologist opined that the appellant's ability to work in a group setting with various coworkers due to her reported increased emotional lability and more serious depressive feelings. The apparent mood fluctuations would likely interfere with her ability wo work cooperatively with others in a reliable manner. The reported anxious distress and panic symptoms would interfere with her ability to manage stress in a workplace with deadlines, pressure, sudden changes in routine, or unexpected challenges. Depression, sleep disturbance, and anxiety all would likely interfere with the appellant's ability to work in a typical workplace, although it was possible that solitary work at home would be feasible. After reviewing the evidence, the Board concludes that throughout the period on appeal, the appellant's dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder has been manifested by, at worst, occupational and social impairment with deficiencies in most areas. There has not been total occupational and social impairment. Although the appellant clearly had difficulties with personal relationships, the record demonstrated that she maintained social contacts and relationships during this period, as described above. Despite difficulties developing and maintaining intimate relationships, the appellant reported having two boyfriends in July 2020. She also got along with her veteran patients when she was working and she moved closer to her children when she stopped working. The appellant also cared for her elderly mother, who had health problems of her own. After thorough review of all evidence of record, the Board finds that the evidence demonstrates that the appellant's psychological symptoms for the entire appeal period are, at most, indicative of occupational and social impairment with deficiencies in most areas. The appellant's psychiatric disability was not shown to result in total occupational and social impairment at any time during the appeal period. As noted earlier, the appellant did not suffer from gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place. With respect to whether the appellant experienced an intermittent inability to perform activities of daily living, during her February 2019 Board hearing, the appellant decreased personal hygiene or appearance four times per week. However, the Board finds that the severity, frequency, and duration of such does not more nearly approximate an intermittent inability to perform activities of daily living. Rather, there is no indication, nor is it contended, that the appellant was not able to maintain minimally adequate hygiene and appearance while working. While she also experienced memory loss for names of relatives, recent events, and directions, such does not more nearly approximate total occupational and social impairment. Rather, the appellant has had the presence of mind to write things down so she does not forget them. And there is no indication, nor is it contended, that any social relationships were negatively affected by forgetting names on occasion. Specifically, as set forth in more detail above, the medical evidence of record demonstrates that the Veteran had normal speech and logical thought process. The medical evidence of record does not contain reports of persistent delusions or hallucinations. Intermittent inability to perform activities of daily living was not found. The Veteran was oriented to person, place, and time. The Veteran's behavior was not determined to be grossly inappropriate. As such, a 100 percent rating is not warranted based on this symptom. The evidence of record also indicates that the appellant was not in persistent danger of hurting herself or others. During her November 2019 contracted examination, although the appellant reported a history of suicidal ideation and thinking about suicide more since April 2019 with the thoughts coming and going, such does not more nearly approximate persistent danger of hurting herself. Notably, suicidal and homicidal ideation was denied on multiple other occasions and the appellant explained that, based upon the consequences of a family member's suicide decades ago, her resolve not to commit suicide had been strengthened. See e.g. September 2020 contracted examination report. Regarding occupational impairment, the appellant was working full-time prior to July 4, 2019. As discussed below, there is no indication, nor is it contended, that such was not substantially gainful employment or that such was protected employment. The appellant resigned in May 2014 from a position as a nurse. The evidence of record reveals multiple possible reasons for such. It was noted that co-workers noticed alcohol on her breath and she was given an ultimatum to resign or be fired. See e.g. June 2014 VA examination report. However, in a January 2015 statement, the appellant stated that her resignation was not due to her drinking alcohol. Rather, it was due to difficulties with a supervisor. Irrespective of the cause of the appellant leaving her job in May 2014, the evidence of record reveals that she was re-hired by a VA facility as a nurse/acupuncturist in September 2014. See February 2020 VA Form 21-4192. Additionally, the appellant herself has reported that she used to have an acupuncture practice of her own but, due to an economic downturn, she was unable to find enough clients to support herself. However, during her June 2014 VA examination, the appellant reported that she hoped to establish a part-time acupuncture practice in her new town. The Board finds that at no point did the appellant's psychiatric symptoms more nearly approximate total occupational impairment around the time she resigned in May 2014 to when she began working in September 2014. In any event, to assign a higher rating for this discrete period would violate the rule regarding stabilization of ratings. 38 C.F.R. § 3.344. Regarding the period since July 4, 2019, when the appellant stopped working, as discussed in greater detail below with respect to the claim of entitlement to TDIU, see Rice, infra, the Board also finds that her psychiatric symptoms did not more nearly approximate total occupational impairment. The appellant and her attorney attribute the appellant's unemployability, at least in part, to the effects of other service-connected disabilities, as discussed in greater detail below. In summary, the Board has considered all of the appellant's psychiatric symptoms that affect the level of occupational and social impairment. After so doing, the Board concludes that the evidence is in relative equipoise as to whether a rating of 70 percent, and no higher, is warranted for the period prior to September 30, 2020, and that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent for any portion of the period on appeal, as the appellant's service-connected psychiatric disorder does not result in both total occupational and social impairment. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is the established policy of VA 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. 5. Entitlement to a TDIU prior to July 4, 2019. 6. Entitlement to a TDIU since July 4, 2019, based on dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder alone. By way of background, in a September 2014 rating decision, inter alia, denied entitlement to a TDIU. The appellant filed a timely NOD, received in December 2014. An SOC was issued in May 2016. However, although the appellant filed a substantive appeal with respect to other issues addressed in the May 2016 SOC, the appellant did not perfect an appeal with respect to the issue of entitlement to a TDIU. Eventually, entitlement to a TDIU was granted based upon the combined effects of the appellant's service-connected disabilities, effective July 4, 2019, in a December 2020 rating decision. To the extent that the issue of entitlement to a TDIU is part and parcel of the appellant's claim for an increased rating for dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Board will address the issue herein. The appellant was afforded a VA psychiatric examination in June 2014. The appellant had worked as a nurse for a year but resigned in May 2014. Although she got along well with patients, there were difficulties with other staff members. It was noted that the appellant was given an ultimatum to resign or be fired after coworkers noticed alcohol on her breath and a BAC test showed some alcohol in her blood. The appellant had previously worked as a certified acupuncturist with her own practice. However, she was no longer able to support herself doing so because she had fewer clients due to a recent economic downturn. However, she hoped to establish a part-time acupuncturist practice in her new town. With respect to the appellant's ability to perform occupational tasks with respect to her psychiatric symptoms, the VA psychologist opined that she would not likely experience impairment in a work environment with (a) frequent interactions with customers, co-workers, or supervisor; (b) moving machinery or equipment; or (c) frequent driving, because the appellant always had good rapport with her nursing patients and because depressive symptoms do not increase the likelihood of accidental injuries with moving equipment or machinery or with driving. The appellant would experience mild impairment in a work environment with (a) a need for sustained concentration and focus; (b) that is fast-paced, complex, or frequently changing; or (c) rigid adherence to a set work schedule, because depression symptoms of impaired concentration and low energy could negatively affect such. Notably, although the appellant reported she had trouble getting sick leave approved, there was no indication of excessive use of sick leave or tardiness or leaving early from work. In a statement received in January 2015, the appellant explained that her drinking of alcohol was not the reason she quit her job. Rather, her supervisor was very difficult to work with and was looking for a way to get rid of her. In a June 2016 statement from S.S., M.D., it was noted that Dr. S.S. had known the appellant for about 25 years, first as her family practice physician and later as her somatic psychotherapist. Dr. S.S. had treated the appellant for psychiatric symptoms from 2004 to 2011. Recently, they had another visit. Dr. S.S. opined that the appellant t was considerably less well than before during the 2016 visit when compared to the last visit in 2011. It was remarkable that the appellant was still working full-time due to her psychiatric and non-psychiatric symptoms, but in the not-so-distant future, the appellant may no longer be able to sustain full-time work. Dr. S.S. opined that the appellant would not be able to work longer than two to five more years as a result of all her health problems. During the February 2019 Board hearing, the appellant explained that she was still working as an OB/GYN nurse and was trying to work long enough to get disability retirement, but did not think she would be able to work much longer. The appellant endorsed emotional problems, a recent fall in which she broke her tailbone, and difficulties with bending and lifting. In a February 2019 letter, H.F, M.D., recommended the appellant stop working due to depression from infertility, ongoing symptoms of abdominal pain and endometriosis, and fibromyalgia and back pain. In a July 2, 2019, letter, J.P., M.D., a VA staff physician, stated that the appellant's psychological status was such that she was unable to work gainful employment. VA medical records from Dr. J.P., also dated July 2, 2019, state that the appellant was "not able to work due to psychological status impacted by physical conditions" at that time. Received in July 2019 was a VA Form 21-8940, upon which the appellant and her attorney contended that she was unemployable due to dysthymic disorder with major depressive disorder and sleep impairment, fibromyalgia, Asherman's syndrome, and endometriosis. In July 2019, R.G., M.D., opined that the appellant was considered to be unemployable in a position of nurse or acupuncture due to lumbar disc degeneration with central canal stenosis and radiculopathy, fibromyalgia, and irritable bowel syndrome. Due to these disabilities, the appellant was severely limited in her ability to perform her duties with particular attention to prolonged standing, sitting, and lifting more than 15 pounds. The appellant was afforded a contracted psychiatric examination in November 2019. The contracted psychologist noted that the appellant spent the majority of the clinical interview discussing her pain and her problems regarding her ability to work. She was tangential regarding this and at times difficult to redirect. She was tearful at times, especially when discussing her work-related difficulty due to fibromyalgia. With respect to functional impairment, the contracted psychologist noted that the appellant herself described her limitations as being physical in nature. However, she appeared to have interpersonal problems which at times lead to crying spells and a decrease in work efficiency. VA medical records include a January 2020 electronic message from the appellant requesting a statement from a clinician regarding her employability which focuses on her fibromyalgia and gastrointestinal difficulties. Received in February 2020 was a VA Form 21-4192, which reveals that the appellant's employment as a nurse began on September 21, 2014, and that she had not worked since July 2, 2019. Of record is a July 2020 vocational assessment completed by T.H. Following review of the appellant's records from 2019 and 2020 and telephonic interviews with the appellant, T.H. opined that the appellant's "service-connected conditions are likely to have resulted in her inability to secure or maintain substantially gainful employment at any exertional level as of July 2, 2019, the last day of employment per the records." T.H. also noted that the appellant's symptoms of fibromyalgia and left hip pain and mental limitations from persistent depressive disorder had worsened to the point that she was forced to stop working. The appellant was afforded a contracted psychiatric examination in September 2020. With respect to the appellant's ability to work, the contracted psychologist opined that the appellant's ability to work in a group setting with various coworkers due to her reported increased emotional lability and more serious depressive feelings. The apparent mood fluctuations would likely interfere with her ability to work cooperatively with others in a reliable manner. The reported anxious distress and panic symptoms would interfere with her ability to manage stress in a workplace with deadlines, pressure, sudden changes in routine, or unexpected challenges. Depression, sleep disturbance, and anxiety all would likely interfere with the appellant's ability to work in a typical workplace, although it was possible that solitary work at home would be feasible. Received in September 2020 was a VA Form 21-8940, upon which the appellant and her attorney contended that the appellant's dysthymic disorder with major depressive disorder and sleep impairment, fibromyalgia, Asherman's syndrome, and endometriosis rendered her unemployable. For the period on appeal prior to July 4, 2019, the Board finds that the preponderance of the evidence is against the award of entitlement to a TDIU because the appellant was working full-time in a substantially gainful occupation which did not constitute protected employment. As discussed above regarding the claim for an increased rating for the appellant's psychiatric disorder, although the appellant resigned her position in May 2014 and did not begin work until September 21, 2014, the appellant was not unable to secure or follow a substantially gainful occupation during that period. The appellant reported that she chose to resign although there are indications in the record that she was forced to resign due to alcohol use at work. Additionally, around that period, the appellant had previously had an acupuncture practice that only ended because of an economic downturn and an inability to support herself due to a lack of clients. Again, the appellant reported that she hoped to establish a new part-time acupuncture practice in her new town. In any event, to assign a TDIU for this discrete, limited period would violate the rule regarding stabilization of ratings. 38 C.F.R. § 3.344. The appellant and her attorney do not contend otherwise. As such, the Board finds that the appellant was not unable to secure or follow a substantially gainful occupation prior to July 4, 2019, and that entitlement to a TDIU for that period is thus not warranted. Turning to the period since July 4, 2019, the Board notes that the grant of a total disability rating does not always render the issue of TDIU moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Indeed, notwithstanding the appellant's service-connected psychiatric disability, her remaining service-connected disabilities combine to a 70 percent combined evaluation for the period since July 4, 2019. However, for the reasons that follow, the Board finds that the most probative evidence establishes that the appellant is not unable to secure or follow a substantially gainful occupation solely due to dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder. The Board observes that the appellant and her attorney do not contend that the appellant is unemployable solely due to her service-connected dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder. Rather, on the July 2019 and September 2020 VA Forms 21-8940, they contended that the appellant's dysthymic disorder with major depressive disorder and sleep impairment, fibromyalgia, Asherman's syndrome, and endometriosis rendered her unemployable. As discussed above, the July 2020 vocational opinion also attributed the appellant's unemployability to more than just her psychiatric disorder. The Board observes that some clinicians, including Dr. J.P. in July 2019, have suggested that the appellant's service-connected psychiatric disorder alone renders her unemployable. However, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The September 2020 contracted examiner determined that the appellant would have difficulties with occupational tasks due to her psychiatric disorder, but appears to have offered a speculative opinion about her ability to successfully work at home. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). The Board affords less probative weight to the opinions of Dr. J.P. and the September 2020 examiner because the July 2020 vocational assessment and the November 2019 examiner provided thorough, well-reasoned rationales for the determinations, impliedly and expressly, that the appellant was not unemployable due to her psychiatric symptoms alone. Notably, the appellant and her attorney do not contend that the appellant's psychiatric symptoms alone render her unemployable. Rather, as noted by the November 2019 examiner, the appellant herself attributed her inability to work to physical limitations. In sum, the most probative evidence establishes that the appellant was not unable to secure or follow a substantially gainful occupation prior to July 4, 2019, and that the appellant has not been unable to secure or follow a substantially gainful occupation due solely to service-connected dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder thereafter. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for chronic fatigue syndrome. Pursuant to the Board's August 2020 remand, the appellant was afforded a contracted chronic fatigue syndrome examination performed by video telehealth in November 2020. The claims file was reviewed. Following review of the claims file and examination of the appellant, no diagnosis of chronic fatigue syndrome was warranted. The contracted physician explained that there was no evidence in the claims file of a formal diagnosis of chronic fatigue syndrome (CFS), but the appellant had subjective fatigue. However, the contracted physician stated that "[w]e are not, today, tasked to make a diagnosis of CFS. I am only relating symptoms. Again, she has not been diagnosed with the CFS." The contracted examiner appears to have misunderstood the reason the matter was remanded before. It was not to simply review the claims file to determine if a diagnosis of chronic fatigue syndrome had been rendered, rather than simply having it listed in the appellant's problem list. The point of the examination, as opposed to a medical opinion based upon file review only, was to determine whether the appellant currently has chronic fatigue syndrome. The physician who offered the November 2020 contracted sleep disability opinion was unable to offer an opinion as to whether chronic fatigue syndrome was incurred in or otherwise causally related to the appellant's active service because, although it was listed in historical notes, there was no proof of an actual properly-performed diagnosis. While the Board regrets the delay, the matter must be again remanded in order for the RO to substantially comply with the Board's prior remand. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for a sleep disability. The appellant has been diagnosed with obstructive sleep apnea. See e.g. October 2019 contracted examination report. The October 2019 examiner opined, in pertinent part, that it is likely that dysthymic disorder, major depression, and chronic sleep impairment can aggravate sleep apnea, it was less likely than not that sleep apnea was secondary to such. This opinion appears positive with respect to aggravation; however, it is speculative and does not establish a baseline level of severity prior to aggravation. Pursuant to the Board's August 2020 remand, a contracted medical opinion was obtained regarding the appellant's claimed sleep disability in November 2020. The contracted physician determined that a video telehealth examination was necessary and conducted such. The physician opined that the appellant's diagnosis of obstructive sleep apnea was separate and distinct from symptoms of fibromyalgia, chronic fatigue syndrome, and dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder. It was noted that severe obstructive sleep apnea was diagnosed in 2019 following a sleep study. While there was a 2010 clinical note with symptoms suggestive of a possible sleep disorder, she would not agree to a sleep study. Notably, this was more than 10 years following separation. The examiner opined that it was less likely than not that the appellant's sleep apnea was incurred in or was otherwise causally related to the appellant's active service because, although she may have had fibromyalgia at separation in 1989, there was no sleep apnea or sleep disturbance diagnosed at separation and the 2010 sleep study request the appellant refused was 11 years after separation. The contracted physician stated that it would be conjecture to opine as to whether a sleep disability was proximately due to or the result of fibromyalgia, chronic fatigue syndrome, and/or dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder because the appellant did not meet the criteria for a diagnosis of chronic fatigue syndrome and there was nothing in the claims file to indicate the appellant had a sleep disorder prior to separation in 1989. The contracted physician also stated that it would be conjecture to opine as to whether a sleep disability was aggravated by fibromyalgia, chronic fatigue syndrome, and/or dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder because it was not addressed in the claims file and there was no discussion of a "baseline" for the appellant's sleep disorder. The contracted physician appears to have conflated direct service connection and secondary service connection, in that the rationale for the negative secondary opinion is based in large part on a lack of in-service symptoms. Additionally, regarding aggravation, it is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). Due to these inadequacies, an addendum medical opinion was obtained from the November 2020 contracted physician in January 2021. The physician opined that it was less likely than not that the appellant's obstructive sleep apnea was secondary to fibromyalgia or a depressive disorder. It was explained that obstructive sleep apnea results from either swollen or relaxed or pedunculated tissue that obstructs the upper airway during sleep. It was thus a condition relating to local anatomy adjacent to the upper airway. Determining the severity of such can be specifically defined by testing. Alternatively, sleep disorders relating to fibromyalgia and/or depression are not specifically defined by local upper airway anatomy, and cannot be defined by testing. Additionally, such are more likely to present with difficulty getting to sleep or insomnia, which is not the case with obstructive sleep apnea. Based on general medical knowledge, fibromyalgia and depression are not risk factors for obstructive sleep apnea. However, the physician stated that obstructive sleep apnea symptoms may be aggravated by concurrent fibromyalgia and/or depression, but no cause/effect relationship exists. However, this, too, is speculative. The October 2019 and January 2021 medical opinions both indicate that fibromyalgia and/or depression can aggravate obstructive sleep apnea. However, there is no adequate opinion as to aggravation; and there is no competent opinion of record as to whether a baseline level of severity of the appellant's obstructive sleep apnea can be established. The contracted examiner who provided the November 2020 and January 2021 medical opinions did not address this question. As such, while the Board regrets the additional delay, remand is warranted in order to obtain an adequate etiological opinion which adequately addresses aggravation and whether a baseline level of severity can be established for obstructive sleep apnea. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, supra. The matters are REMANDED for the following action: 1. Afford the appellant an examination for the purpose of ascertaining the nature and etiology of her claimed chronic fatigue syndrome. Access to the claims file should be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should delineate all fatigue disabilities, including chronic fatigue syndrome. If a diagnosis of chronic fatigue syndrome is not rendered, an explanation should be provided. For each identified fatigue disability, the examiner should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not that any current chronic fatigue syndrome had its onset in service or is otherwise related to the appellant's active service? If not, is it at least as likely as that chronic fatigue syndrome was proximately due to or the result of the appellant's service-connected fibromyalgia? If neither, is it at least as likely as not that chronic fatigue syndrome was aggravated (made worse) by the appellant's service-connected fibromyalgia? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. In providing the requested opinions, the clinician should review the relevant evidence of record, to include the VA medical records which include chronic fatigue syndrome on the appellant's current problem list. In providing the requested opinions, the clinician should consider the appellant's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant's reported symptoms. If there is any medical reason to accept or reject the proposition that the appellant's fibromyalgia caused or aggravated chronic fatigue syndrome, this should be noted. Stated another way, do the appellant's reports about her symptoms align with how chronic fatigue syndrome is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? 2. Obtain a medical opinion from an appropriate clinician as to the nature and etiology of the appellant's obstructive sleep apnea. Access to the claims file should be made available to the examiner for review. After reviewing the claims file, the examiner should opine as to the following: Is it at least as likely as not that obstructive sleep apnea was aggravated (made worse) by chronic fatigue syndrome, and/or service-connected fibromyalgia and/or dysthymic disorder with major depression, chronic sleep impairment, and alcohol use disorder? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. If the examiner is unable to establish a baseline, the examiner should provide specific explanation or rationale as to why. In providing the requested opinions, the clinician should review the relevant evidence of record, to include the October 2019 contracted medical opinion which states that it is likely that dysthymic disorder, major depression, and chronic sleep impairment can aggravate sleep apnea, and the January 2021 contracted medical opinion which states that obstructive sleep apnea symptoms may be aggravated by concurrent fibromyalgia and/or depression. (Continued on the next page) If the clinician determines that an examination of the appellant is necessary, one should be scheduled. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, Counsel 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.