Citation Nr: 21006064 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-07 374 DATE: February 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected left lower extremity radiculopathy, from August 5, 2012 to January 4, 2016, is denied. Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy, from January 5, 2016, is denied. Entitlement to an initial compensable rating for service-connected hypertension, from August 5, 2012 to January 4, 2016, is denied. Entitlement to a rating in excess of 10 percent for service-connected hypertension, from January 5, 2016, is denied. Entitlement to a compensable rating for service-connected hepatitis C, from August 5, 2012 to June 4, 2013, is denied. Entitlement to a rating in excess of 20 percent for service-connected hepatitis C, from June 5, 2013 to January 4, 2016, is denied. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD), from December 9, 2013 to March 14, 2015, is denied. Entitlement to a 70 percent rating, but no higher, for service-connected PTSD, from March 15, 2015 to January 3, 2016, is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected degenerative disc disease (DDD) of the lumbar spine (lumbar disability), from August 5, 2012, and in excess of 40 percent, from January 6, 2016, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 4, 2016, is remanded. FINDINGS OF FACT 1. From August 5, 2012 to January 4, 2016, the Veteran’s left lower extremity radiculopathy was manifested by mild, incomplete paralysis of the sciatic nerve. 2. From January 5, 2016, the Veteran’s left lower extremity radiculopathy was manifested by moderate, incomplete paralysis of the sciatic nerve. 3. From August 5, 2012, to January 4, 2016, the Veteran’s hypertension did not result in diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. 4. From January 5, 2016, the Veteran’s hypertension did not result in diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 5. From August 5, 2012, to June 4, 2013, the Veteran’s hepatitis C was shown to be non-symptomatic and did not require medication. 6. From June 5, 2013, to January 4, 2016, the Veteran’s hepatitis C was shown to result in daily fatigue, but not malaise and anorexia, with minor weight loss and hepatomegaly, or incapacitating episodes. 7. From December 9, 2013, to March 14, 2015, the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. 8. From March 15, 2015, to January 3, 2016, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. From August 5, 2012, to January 4, 2016, the criteria for a rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code (DC) 8520. 2. From January 5, 2016, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124a, DC 8520 3. From August 5, 2012, to January 4, 2016, the criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, DC 7101. 4. From January 5, 2016, the criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, DC 7101. 5. From August 5, 2012, to June 4, 2013, the criteria for a compensable rating for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, DC 7354. 6. From June 5, 2013, to January 4, 2016, the criteria for a rating in excess of 20 percent for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, DC 7354. 7. From December 9, 2013, to March 14, 2015, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 8. From March 15, 2015, to January 3, 2016, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2004 to June 2004, February 2005 to March 2009, and August 2009 to August 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and June 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has been assigned a 100 percent evaluation for PTSD, effective from January 4, 2016, and a 100 percent evaluation for hepatitis C, effective from January 5, 2016. As this represents a full grant of benefits from those respective dates, the issues are no longer on appeal from those dates, but the ratings will be considered prior to the effective dates of those ratings, which is reflected by the issues listed above. See AB v. Brown, 6 Vet. App. 35 (1993). Further, a 100 percent evaluation, does not necessarily render a TDIU claim moot. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a Veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate)). However, in this case, the Veteran is already rated 100 percent for more than one disability and the evidence indicates the Veteran’s TDIU claim, in this case, is premised on a combination of more than one disability (rather than predicated on a single disability). Thus, under the circumstances of this case, the Board finds the Veteran’s schedular disabilities does render the Veteran’s TDIU moot, effective January 4, 2016. The TDIU issue above has been appropriately recharacterized. This case was previously before the Board in March 2019. At the time, the Board granted the Veteran an effective date of December 9, 2013, for his service-connected PTSD and denied service connection for teeth grinding. The Veteran’s remaining claims were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, in April 2020, the AOJ increased the Veteran’s service-connected hypertension to 10 percent disabling effective January 5, 2016. In an April 2020 supplemental statement of the case (SSOC), the AOJ confirmed and continued the prior denials and returned the case to the Board. As noted in the remand section, there has not been substantial compliance with the Board’s March 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings The Veteran is seeking increased ratings for his service-connected left lower extremity radiculopathy, hypertension, hepatitis C, and PTSD. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. If there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Left lower extremity radiculopathy The Veteran seeks higher ratings for his service-connected left lower extremity radiculopathy. From August 5, 2012 to January 4, 2016, the Veteran has been assigned a 10 percent evaluation. From January 5, 2016 to the present, the Veteran has been assigned a 20 percent evaluation. The Veteran’s left lower extremity radiculopathy is rated under DC 8520, for incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. DC 8520 provides for a 10 percent rating where there is mild incomplete paralysis (or neuralgia) of the sciatic nerve; a 20 percent rating where there is moderate incomplete paralysis (or neuralgia) of the sciatic nerve; and a 40 percent rating where there is moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A rating of 60 percent is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id; see also Miller v. Shulkin, 28 Vet. App. 376 (2017) (providing that when there is sensory and non-sensory impairment, this does not require that the rating must be higher than moderate). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury; the relative impairment in motor function; trophic changes; or sensory disturbances. 38 C.F.R. § 4.120. 1. August 5, 2012, to January 4, 2016 The Board finds that a rating in excess of 10 percent is not warranted for this appellate period. The Veteran underwent a VA peripheral nerves examination in December 2012. At the time, the Veteran was diagnosed with lumbosacral radiculopathy. The Veteran was found to have mild, incomplete paralysis of left sciatic nerve. Functional impairment included a decrease in lifting tolerance. An April 2014 VA treatment record reflected the Veteran’s complaints of occasional radicular pain in the legs which was treated with an epidural steroid injection. See September 2017 VA Treatment Records. May 2014, August 2014, January 2015, and February 2015 VA treatment records reflected the Veteran’s complaints of occasional radicular pain in the legs which was treated with Tramadol and Gabapentin. See September 2017 VA Treatment Records. March 2015 Social Security Administration (SSA) records reflect that the Veteran had 4/5 strength in his left lower extremity. No atrophy, spasticity, or paresthesias was noted. Sensory was diminished to light touch in the Veteran’s foot. A December 2015 VA treatment record reflected the Veteran’s complaints of numbness, tingling, and cramping in his left lower extremity. Testing revealed +1 deep tendon reflexes. See September 2017 VA Treatment Records. The Board finds that the Veteran’s left lower extremity disability most closely approximates the disability picture contemplated by a 10 percent rating during this period. The evidence does not indicate that the Veteran experienced moderate or moderately severe incomplete paralysis or severe incomplete paralysis of any nerve during this time frame. To the contrary, the December 2012 examiner found that the Veteran had mild incomplete paralysis of left sciatic nerve. Based on review of the evidence in its totality, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent during this appellate period. In arriving at this conclusion, the Board has considered whether a higher disability rating is warranted under DCs 8521to 8530. The medical evidence does not reflect that the Veteran experienced any paralysis of the nerves associated with those DCs. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy must be denied for this appellate period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. January 5, 2016 to Present The Board finds that a rating in excess of 20 percent is not warranted for this appellate period. The Veteran underwent a VA examination in January 2016. At the time, the Veteran was diagnosed with left lower extremity radiculopathy of the sciatic nerve. The Veteran reported pain and numbness down his left leg, which he treated with Tramadol. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Reflex testing was normal. The Veteran was found to have decreased sensation in his left lower leg/ankle and foot/toes. Severe intermittent pain, paresthesias and/or dysesthesias, and numbness were found. Moderate radiculopathy of the sciatic nerve was noted. The Veteran had no other neurologic abnormalities. March 2017 VA treatment records reflected that the Veteran reported severe back pain, although it was unclear whether the pain was from a tenial infection or neuropathy. See September 2017 VA Treatment Records. April 2017 VA treatment records reflected that the Veteran reported foot pain, constant itching around ankles, and burning sensation. See September 2017 VA Treatment Records. The Veteran underwent a VA examination in September 2019. At the time, the Veteran was diagnosed with lumbar radiculopathy. The Veteran reported intermittent pain, tingling and numbness to his left lower extremity. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Reflex testing was normal. The Veteran was found to have decreased sensation in his left lower leg/ankle and foot/toes. Decreased hair growth was noted that the Veteran’s lower extremities. Severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness were found. Moderate, incomplete paralysis of the sciatic nerve was noted. Straight leg testing was normal. The Veteran had no other neurologic abnormalities. Functional impact was noted to be a worsening of symptoms with weight bearing activities. The Board finds that the Veteran’s left lower extremity disability most closely approximates the disability picture contemplated by a 20 percent rating during this period. The evidence does not indicate that the Veteran experienced moderately severe incomplete paralysis or severe incomplete paralysis of any nerve during this time frame. To the contrary, the January 2016 and September 2019 examiner founds that the Veteran had moderate, incomplete paralysis of left sciatic nerve. Based on review of the evidence in its totality, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent during this appellate period. The Board also notes findings of severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness during the appellate period. However, the medical evidence does not reflect that those symptoms caused the Veteran to experience moderately severe incomplete paralysis or severe incomplete paralysis of any nerve during this time frame. In arriving at this conclusion, the Board has considered whether a higher disability rating is warranted under DCs 8521to 8530. The medical evidence does not reflect that the Veteran experienced any paralysis of the nerves associated with those DCs. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy must be denied for this appellate period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Hypertension The Veteran seeks higher ratings for his service-connected hypertension. From August 5, 2012 to January 4, 2016, the Veteran has been assigned a noncompensable evaluation. From January 5, 2016 to the present, the Veteran has been assigned a 10 percent evaluation. The Veteran’s hypertension is rated under DC 7101. DC 7101 provides a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. A 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. Notes to DC 7101 provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic pressure of less than 90mm. Additionally, such direct that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, should be evaluated as part of the condition causing it rather than by separate evaluation. Finally, hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. 3. August 5, 2012 to January 4, 2016 The Board finds that a compensable rating is not warranted for this appellate period. During his November 2012 VA examination, the Veteran reported that his blood pressure was under control. His treatment plan included several medications. The examiner indicated the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. His blood pressure readings on that date were as follows: 148/77, 154/89, and 144/80. The Board notes, however, that there is no reason to believe that the blood pressure readings are inaccurate or taken while the Veteran was on medication. The Veteran did not indicate he was on his medication the day of the examination, the examiner did not indicate he was taking into account the Veteran’s blood pressure medications in noting the blood pressure readings. Rather, the examiner merely noted his medication as part of his treatment plan. Similarly, the Board reviewed the Veteran’s VA treatment records throughout the appeal period, but finds the Veteran’s blood pressure readings did not reflect diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. See September 2017 VA Treatment Records. While his treatment records do contain a small number of readings with systolic pressure at 160 and above and diastolic pressure at 100 or more, these isolated readings are not confirmed by two or more readings taken on at least three different days. See May 2013 CAPRI. Overall, the record does not indicate that the Veteran meets the diagnostic criteria required for a compensable rating. Accordingly, the Board finds that the claim of entitlement to a compensable disability rating for hypertension must be denied for this appellate period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 4. January 5, 2016 to Present The Board finds that a rating in excess of 10 percent is not warranted for this appellate period. During his January 2016 VA examination, the Veteran reported that his hypertension had stayed the same. His treatment plan included several medications. The examiner indicated the Veteran did have a history of a diastolic blood pressure elevation to be predominantly 100 or more, with his diastolic blood pressure being between 100 and 110, three times a week. His blood pressure readings were as follows: 153/102, 158/98, and 144/90. Once again, there is nothing within the examination report to indicate the Veteran was on his blood pressure medication at the time of the VA examination or that the medication was otherwise a factor in the blood pressure readings taken at that time. Rather, the medication was merely noted by the examiner as part of the Veteran’s treatment plan. During his September 2019 VA examination, the Veteran reported that his hypertension has stayed the same. His treatment plan included several medications. The examiner indicated the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more, but then also found that the Veteran has a history of diastolic blood pressure in the low 100s. His blood pressure readings were as follows: 163/92, 138/91, and 140/90. Once again, there is nothing within the examination report to indicate the Veteran was on his blood pressure medication at the time of the VA examination or that the medication was otherwise a factor in the blood pressure readings taken at that time. Rather, the medication was merely noted by the examiner as part of the Veteran’s treatment plan. Throughout the appeal period, the Veteran’s blood pressure readings did not reflect diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. No treatment records contain readings with systolic pressure at 200 and above or diastolic pressure at 110 or more. See September 2017 VA Treatment Records. Overall, the record does not indicate that the Veteran meets the diagnostic criteria required for a rating in excess of 10 percent. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 10 percent for hypertension must be denied for this appellate period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Hepatitis C The Veteran seeks higher ratings for his service-connected hepatitis C. From August 5, 2012 to June 4, 2013, the Veteran has been assigned a noncompensable evaluation. From June 5, 2013 to January 4, 2016, the Veteran has been assigned a 10 percent evaluation. The Veteran’s hepatitis C is rated under DC 7354. A fundamental premise of the DC is “serologic evidence of hepatitis C infection.” See 38 C.F.R. § 4.114, Diagnostic Code 7354. Under DC 7354, a non-compensable rating is warranted when the condition is non-symptomatic. A 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted when there is daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted when there is daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted when there is daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is warranted when there are near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (1) provides that sequelae such as cirrhosis or malignancy of the liver are to be rated under an appropriate Code, but not to use the same signs and symptoms as the basis for rating under Diagnostic Code 7354 respectively, and under a Diagnostic Code for sequelae. 38 C.F.R. § 4.114. Note (2) provides that, for purposes of rating conditions under Diagnostic Code 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. The term “substantial weight loss” is defined as a loss of greater than 20 percent of baseline weight, sustained for three months or longer; and the term “minor weight loss” is defined as a weight loss of 10 to 20 percent of baseline weight, sustained for three months or longer. See 38 C.F.R. § 4.112. 5. August 5, 2012 to June 4, 2013 The Board finds that a compensable rating is not warranted for this appellate period. The Veteran underwent a VA examination for his claim in December 2012. The examiner noted that continuous medication was not required to control the Veteran’s liver condition. The Veteran did not have any signs or symptoms attributable to chronic or infectious liver diseases. The Veteran had not experienced any incapacitating episodes in the previous 12 months. The Veteran did not have any signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. The Veteran’s hepatitis C did not impact his ability to work. An August 2012 VA treatment record reflected that the Veteran had not had any hepatitis C treatment. The Veteran reported it had become worse. Lab work from that same month reflected that the Veteran’s liver enzymes were mildly elevated. See May 2013 CAPRI. An October 2012 VA treatment record reflected that the Veteran was interested in pursuing treatment for his hepatitis C. No symptoms were reported at that time. See May 2013 CAPRI. Throughout the appellate period, the Veteran’s hepatitis C was shown to be non-symptomatic and did not required medication. There is no medical evidence that the Veteran experienced intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. Overall, the record does not indicate that the Veteran meets the diagnostic criteria required for a compensable rating for this appellate period. Accordingly, the Board finds that the claim of entitlement to a compensable disability rating for hepatitis C must be denied for this appellate period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 6. June 5, 2013 to January 4, 2016 The Board finds that a rating in excess of 20 percent is not warranted for this appellate period. In June 2013, the Veteran began treatment for his hepatitis C. VA treatment records from that month reflect that he had some difficulty with chills, rigors, and bone pain that lasted a few hours following his first injection. With the second dose of Interferon a week later he had very few symptoms. With a third dose of Interferon, his symptoms were severe and lasted nearly 48 hours. June 2014 VA treatment records reflect that the Veteran continued to have peristent fatigue. It was noted that he has failed his hepatitis C treatment. See September 2017 VA Treatment Records. March 2015 VA treatment records reflected the Veteran’s ongoing complaints of fatigue. See September 2017 VA Treatment Records. October 2015 VA treatment records reflected that the Veteran had begun new treatment for his hepatitis C. The Veteran reported increased fatigue over the previous 2 weeks. Later that month, the Veteran reported adverse effects to the treatment. The Veteran reported that he was having a lot of weakness and increased sweating. The medications made him nauseous and caused a loss of appetite. See September 2017 VA Treatment Records. In November 2015, the Veteran reported fatigue and nausea due to his hepatitis C treatment. See September 2017 VA Treatment Records. Throughout the appellate period, the Veteran’s hepatitis C was shown result in daily fatigue requiring medication but did not result in any incapacitating episodes. While the Veteran did not experience any anorexia, requiring dietary restriction or continuous medication, the Board will not disturb the Veteran’s assigned 20 percent rating for this appellate period. There is; however, no medical evidence that the Veteran experienced malaise and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Overall, the record does not indicate that the Veteran meets the diagnostic criteria required for a rating in excess of 20 percent for this appellate period. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 20 percent for hepatitis C must be denied for this appellate period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). PTSD The Veteran contends that an increased rating is warranted for his service-connected PTSD, which is rated as 50 percent disabling from December 9, 2013 to January 3, 2016. The Veteran’s disability is evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, DC 9434. Under the general rating formula, a 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. See id. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In other words, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). 7. PTSD from December 9, 2013, to March 14, 2015 The Board finds that a rating in excess of 50 percent is not warranted for this appellate period. January 2014 VA treatment records reflect that the Veteran was alert and oriented. His observed mood was euthymic, but anxious during imaginal therapy. His attention and concentration were grossly intact for the purposes of the session. His speech was within normal limits. His thought processes and content were within normal limits. See September 2015 VA Treatment Records. March 2014 VA treatment records reflect that the Veteran had gone on a trip to visit family. See September 2015 VA Treatment Records. In June 2014, the Veteran was afforded a VA examination in connection with his claim. The examiner found that the Veteran’s PTSD resulted in depressed mood, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. No suicidal or homicidal ideations and no visual or auditory hallucinations were found. See September 2015 VA Treatment Records. Socially, the Veteran describes his relationship with his wife as being “it’s okay sometimes, and sometimes it’s rough.” He and his wife had 3 children together, a 3-year-old daughter, a 1-year-old son and a 1-month old child. The Veteran maintained contact with his siblings, who all lived outside the United States Occupationally, it was reported that the Veteran he had been having trouble getting a job, saying that he would be scheduled for interviews but was never offered a position. He had completed several semesters of college course work at Columbus State, he was not taking any classes at the time of the examination. The examiner found that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Upon review of the medical of record, the Board finds that the evidence does not reflect symptoms that would meet the criteria for a rating in excess of 50 percent for any period of time during the pendency of the claim. There is no evidence of 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; or difficulty in adapting to stressful circumstances (including work or a work-like setting). The Board notes that the presence or absence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, 713 F.3d at 117. The Board’s determination is not based solely on the listed symptoms. Rather, the treatment records and VA examination report were not indicative of occupational and social impairment that approximate the criteria for a 70 percent. While the evidence of record demonstrates impairment in occupational and social functioning with reduced reliability and productivity, it does not show such deficiencies in most areas to warrant an increased rating of 70 percent. Although he was not currently working, the Veteran reported that he had been applying for jobs and had completed some college course work. The social and occupational impairment reported by the Veteran and noted in the VA examination reports is covered by his 50 percent evaluation. The examiner noted that the psychiatric symptoms described by the Veteran did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Without evidence of more serious social and occupational impairment, a higher rating of 70 percent or more is not warranted. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 70 percent or more evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, 16 Vet. App. at 442. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 50 percent for PTSD must be denied for this appellate period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Although the Board is appreciative of the Veteran’s faithful and honorable service to our country, given the record before it, this claim for this period must be denied. 8. March 15, 2015 to January 3, 2016 The Board finds that a 70 percent rating, but no higher, is warranted for the Veteran’s PTSD for this appellate period. In March 2015, the Veteran underwent an SSA psychological evaluation. The Veteran reported suicidal ideation but denied any intent. No homicidal intent was found. The Veteran reported difficulties with concentration and interpersonal withdrawal. The Veteran’s dress and grooming was considered appropriate. There was no indication of any hallucinations. His ability to manage everyday stressors was limited. See May 2019 SSA Records. Socially, the Veteran reported that he lived with his wife and children. Occupationally, the Veteran reported that he was not working. In December 2015, the Veteran underwent a private examination in connection with his claim. The examiner found that the Veteran’s anxiety disorder resulted in depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, near continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, persistent delusions or hallucinations, and an intermittent inability to perform activities of daily living. Socially, the Veteran remained married and lived with his wife, children, and mother in law. Occupationally, it was noted that the Veteran had not worked since 2014. The examiner found that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. Affording the Veteran the benefit of the doubt, the Board finds that the examinations demonstrate that the Veteran’s overall disability picture is consistent with a 70 percent rating for this appellate period. The Veteran has maintained a history of symptoms that predominantly includes suicidal ideation, near continuous panic or depression, inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances. The Board finds that these symptoms and the social and occupational effects related thereto support a 70 percent evaluation for this period. See Vazquez-Claudio, 713 F.3d at 118. The Board also acknowledges that there is a limited availability of medical evidence and no additional treatment records; however, in affording the Veteran the benefit of the doubt the Board finds that a 70 percent rating is warranted throughout the appellate period. In so concluding, the Board also finds that a total rating is not warranted as total occupational and social has not been noted. While the Veteran has demonstrated symptoms such as persistent delusions or hallucinations and an intermittent inability to perform activities of daily living, the Veteran has not been shown to have total social impairment. The Veteran has remained married during this time and was noted to be living with his family. Additionally, the December 2015 private examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas rather than total impairment. Therefore, the Board finds that the Veteran’s PTSD warrants a 70 percent rating for this period, but no higher. See 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claims and to afford him every possible consideration. 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative disc disease (DDD) of the lumbar spine (lumbar disability) from August 5, 2012 and in excess of 40 percent from January 6, 2016 is remanded. The Board finds that a new examination is warranted for the Veteran’s claim. The United States Court of Appeals for Veterans Claims (Court) has held “that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders.” Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, “the Board itself errs in failing to ensure compliance.” Id. The Board’s March 2019 remand instructed the examiner to “provide the range of motion in degrees and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report.” The examiner was also asked to “comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing can be estimated for the other VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report.” The examiner who completed the September 2019 VA examination did not provide the above requested range of motion measures or provide a retrospective opinion. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 4, 2016 is remanded. Because the development sought in connection with the Veteran’s claim for higher ratings for his lumbar disability may impact his TDIU claim, the Board finds the issue to be intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, the TDIU claim will be remanded as well. Additionally, the evidence currently of record shows that the Veteran was employed at times, was enrolled at a university, or enrolled in an apprenticeship program during the appellate period. See September 2017 VA Treatment Records and May 2019 SSA Records. It is unclear if the Veteran was able to obtain substantially gainful employment during this period. Accordingly, the Board must obtain further information regarding the Veteran’s past employment status and the circumstances of his employment, to include the Veteran’s pay stubs, W2 Forms, tax returns, letters from employers, and transcripts. This should include evidence showing that the Veteran’s employment is in a protected environment such as a family business or sheltered workshop. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. 2. Request that the Veteran submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, transcripts, etc.) documenting marginal employment, if any, due to his service-connected disabilities. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the severity and manifestations of his service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s lumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should state whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. He or she should further indicate whether there is any form of ankylosis and state the total duration of incapacitating episodes during the past 12 months. In addition, the examiner should identify any and all associated neurologic abnormalities, to include any radiculopathy in the lower extremities. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability, including additional limitation of motion, due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing can be estimated for the other VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. (continued on next page) 4. After undertaking any other appropriate development deemed necessary, readjudicate the Veteran’s claims. If the determination remains adverse to the Veteran, he should be furnished with a supplemental statement of the case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.