Citation Nr: 21009459 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-40 488 DATE: February 22, 2021 ORDER The claim of entitlement to a 70 percent disability rating for dysthymic disorder prior to August 14, 2014, is granted, subject to the criteria applicable to the payment of monetary benefits. The claim of entitlement to a disability rating in excess of 70 percent for dysthymic disorder beginning on August 14, 2014, is denied. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the criteria applicable to the payment of monetary benefits. REMANDED The claim of entitlement to a disability rating in excess of 40 percent for the service-connected low back disorder is remanded. The claim of entitlement to a higher disability rating for right leg neuralgia, rated as 10 percent prior to August 26, 2014, and 10 percent thereafter, is remanded. The claim of entitlement to a disability rating in excess of 10 percent for left leg neuralgia is remanded. FINDINGS OF FACT 1. Prior to August 14, 2014, the Veteran’s dysthymic disorder was productive of occupational and social impairment which most nearly approximated with deficiencies in most areas; it was not manifested by symptomatology of such severity as to result in total occupational and social impairment. 2. Beginning on August 14, 2014, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. 3. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record demonstrates that his service-connected disabilities rendered him unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the period prior to August 14, 2014, the criteria for a disability rating of 70 percent for dysthymic disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 2. The criteria for a disability rating in excess of 70 percent for dysthymic disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 3. The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Marine Corps from October 1972 to April 1980. In April 2019, the Board remanded the case for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § § 1155; 38 C.F.R. § § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § § 4.21 (2018). In accordance with 38 C.F.R. § §§ 4.1, 4.2, 4.41, 4.42 (2018) and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claim. 1. Entitlement to a higher disability rating for dysthymic disorder, rated as 50 percent prior to August 14, 2014, and 70 percent thereafter. The Veteran asserts that he is entitled to a higher disability rating for his service-connected dysthymic disorder. Under the General Formula for Mental Disorders (General Formula), 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 v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher for the period prior to August 14, 2014, as well as for a disability rating of 100 percent for the period thereafter. After a review of all the evidence of record, to include the lay statements, the VA examination reports, and VA treatment records, the Board finds that the Veteran’s service-connected dysthymic disorder resulted in occupational and social impairment that more nearly approximated deficiencies in most areas throughout the entire period on appeal. The record, however, does not show total impairment at any point during the period on appeal. March 2011 VA treatment records showed that the Veteran was under significant stress due to marital problems, as well as concerns about his son’s mental health. He also expressed increased depression related to his son’s mental health. His marriage ended abruptly because his wife could not handle his depression. The Veteran stated that his first two wives also had trouble dealing with his depression. The stress was severe enough to cause tension in his head. He also reported passive and fleeting thoughts about death. In June 2011, the Veteran reported significant improvement in his family affairs. His wife and son had changed and were more understanding of how his pain and depression affected his life. In August 2011, the Veteran expressed anger and frustration towards his employer for denying his medical retirement. He was encouraged to use anger management techniques. In September 2011, the Veteran reported that medication and psychotherapy helped improve his mood. He was able to sleep well at night and felt rested in the morning with the use of medication. An April 2012 VA examination report noted that the Veteran’s psychiatric disorder resulted in 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. He described a “bumpy” relationship with his wife, who planned to leave him. He described a poor relationship with his children. The Veteran reported good relationships with his former coworkers and supervisors. The Veteran had paranoia and saw things that were not there. The examiner found that he displayed constant and severe symptoms such as anger, tiredness, jittery behavior, isolation, and paranoia. He slept one to two hours per night and displayed violent behavior towards his son. A November 2012 psychological evaluation noted that the Veteran’s depression was aggravated by his physical limitations. The examiner noted self-isolation, passive suicidal thoughts, depression, a diminished appetite, sleep impairment, fatigue, poor concentration, impaired memory, anxiety attacks, and hearing voices. The Veteran no longer socialized but did see his sons regularly. He also attended church. The psychologist noted that the Veteran presented as markedly dysphoric and irritable. It was found that the Veteran was mildly impaired in his ability to adapt to normal work stressors and that he was capable of understanding simple and detailed instructions. He was moderately impaired in his ability to recall detailed instructions, to get along with others due to his irritability, and to sustain attention for extended periods. February 2013 VA treatment records indicated that since the Veteran’s last appointment in September 2011, he retired from his job, his brother became sick, his wife left him in June 2012, and he filed for bankruptcy. He reported that he felt completely numb due to the stressors in his life. He reported memory problems, anxiety, low energy, and no motivation. The Veteran had not taken his psychiatric medications since 2011. The physician noted that the Veteran was overwhelmed with financial stressors, chronic pain, and issues with getting unemployment. He restarted his psychiatric medications and his individual therapy sessions. Later that month, the Veteran reported mild improvement of his psychiatric symptoms. He was less restless and better able to sleep. The Veteran also had increased confidence about his ability to cope with challenges such as bankruptcy and marital struggles. In March 2013, he reported a slight decrease in his anxiety and depression. The Veteran reported that he was coping with the uncertainty surrounding his marriage and conflict with his wife. The Veteran was praised for his ability to move forward in valued ways and not focusing on anxieties and depressive thoughts. In April 2013, the Veteran continued to report stress. He set boundaries and used the serenity prayer to cope and guide his behavior. In May 2013, the Veteran stated that caring for his 20-year-old special needs son gave him a sense of purpose since his retirement. He continued to set boundaries with his estranged wife and acknowledged that they no longer loved each other. He stated that he remained married for his 12-year-old son. In June 2013, the Veteran was relieved that he was able to have shoulder surgery. He denied anxiety, neurovegetative depression, anger issues, irritability, paranoia, nightmares, and flashbacks. He reported good sleep with the use of psychiatric medication. He stopped taking his other psychiatric medication because he felt that he was better and did not need any medication at the time. He was encouraged to take the other psychiatric medications due to possible recurrence of depression symptoms, but he refused and agreed to contact his medical provider if that happened. He continued to report active involvement in the lives of his children. His mood was described as fine. In July 2013, the Veteran reported constant problems and arguments with his wife, which affected his relationship with his 12-year-old son. His wife told him that she left him because of his depression. He was encouraged to increase boundaries with his wife, restart his psychiatric medication, and prioritize spending quality time with his son. A week later, the Veteran reported improvement of his symptoms. The Veteran was working on his relationship with his 12-year-old son and was trying to monitor his irritability and withdrawal inclinations so that it would not negatively impact their relationship. It was noted that the Veteran seemed content with his wife at that time and was considering reconciliation in the future. In August 2013, the Veteran presented with a brighter affect. He reported that he was better, and that the medication started working again. He described an improvement in his mood and a reduction of depressive symptoms. He was not experiencing low energy, lack of motivation, worthlessness, hopelessness, anxiety, or panic like symptoms. He admitted that he had anger and irritability symptoms but stated that he tried not to react in certain situations. He continued to report good sleep. He stated that his wife continued to provoke him. His relationship with his son improved. Later that month, the Veteran discussed frustration with his wife and their rollercoaster relationship. He was also frustrated with his physical limitations and finances. He reported that there was no hope for reconciliation. The Veteran was encouraged to find a hobby or outlet to focus his energy. In October 2013, the Veteran was again overwhelmed with multiple stressors. His friend recently died and that he was ordered to pay child support. He was angry and frustrated with his wife for taking him to court for child support. He reported that his wife told their son negative things about the Veteran. The Veteran stated that there was no chance for reconciliation. From October 2013 to February 2016, the Veteran continued to be frustrated, irritable, angry, and overwhelmed by his financial problems, marital struggles, and other stressors. He stated that his mood symptoms and anxiety were situational. He had low energy and sad mood. He continued to sleep well with the help of his psychiatric medication. His psychologist engaged him in problems-solving and he reported beliefs that he would not become homeless and would get by on his limited income. In April 2014, the Veteran was praised for his resiliency during that time as it related to his budgeting efforts and lifestyle changes. He limited his interactions with his wife to only co-parenting needs. In June 2014, it was noted that the Veteran might have been coping with underlying feelings of loss and betrayal with anger. It seemed that ruminative thoughts might have been a primary means to control unwanted negative affect. In August 2014, the Veteran continued to endorse problems with sleep, depression, irritability, and a lack of motivation associated with financial problems, frustration with the lack of support from government entities, issues with his wife, and ongoing physical problems. He endorsed passive thoughts about suicide but denied plan and intent. The Veteran reported that he would not act on his thoughts of suicide because his disabled son needed his support. He also started to report problems with memory and concentration. In September 2014, he presented with increased anxiety related to a brain infection. The Veteran discussed his tenacity and determination since he was a young boy. In November 2014, he stated that his psychiatric medication helped with his anxiety symptoms. He continued to report frustration, mood lability, anger, and irritability coping with stressors. In January 2015, the Veteran was moving towards divorce with his wife. He reported that he was attending church regularly. June 2015 VA treatment records focused on the Veteran’s commitment action related to values. He was encouraged to catch himself when he started to ruminate about the past and future. He reported visiting his mother, faith-based practices, and attending his son’s athletic events. In July 2015, he reported stress in response to his oldest son having a seizure. He was excited that his youngest son was planning to move with him. In July 2015, he continued to report that his psychiatric medications were a huge benefit to him. The psychologist noted that the Veteran was coping more positively with his multiple severe stressors. An October 2015 VA treatment record noted chronic suicidal ideation without plan. In January 2016 he reported sadness related to psychosocial events and continued to report that his psychiatric medications were helping him. In February 2016, he reported that he was less fixated and ruminative about his stressors. In March 2016, he presented with severe depression secondary to somatic complaints. The Veteran was afforded another VA examination in October 2015. The examiner found that the Veteran’s psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that his irritability affected his three marriages. He spent his days moping around the house, although he did participate in some church activities. The examiner noted that the Veteran’s physical limitations significantly impacted his quality of life, resulting in his depression. His psychiatric symptoms were exacerbated by his son’s medical issues and his past work experiences. It appeared that his psychiatric symptoms were constant and moderate. His psychiatric symptoms impacted his activities of daily living in that sometimes he lacked the motivation to change clothes. In April 2016, the Veteran presented with severe depression and passive suicidal ideation. He slept three hours per night with middle morning insomnia. He had racing thoughts throughout the day, rage, depression, and low appetite. A May 2016 VA treatment record noted that the Veteran’s mood was depressed most of the day, nearly every day. He was sometimes interested in engaging in activities, but his pain prevented him from doing such. He also had daily sleep disturbance, fatigue, loss of energy, worthlessness, decreased concentration, and thoughts of death/suicidal ideation. In June 2016, the Veteran shared details of a recent life event, which allowed him to let go of anger and refocus. He reported that his oldest daughter recently reached out to him after many years of no contact. His daughter told him that she valued his parenting styles and instillation of values/ethics. In July 2016 the Veteran stated that his nerve pain affected his mood. In August 2016, the Veteran presented with a depressed mood due to medical problems, physical limitations, financial problems, and family issues. He also expressed wanting to be more social but was fearful due to pain. In September 2016, the Veteran returned to church after three months avoided; he reported a positive experience. He also had been walking his dog and talking to his neighbors. In October 2016, the Veteran engaged in an exercise with his provider to identify values that were important to him. He noted several values that went against suicidal ideation. In November 2016, the Veteran reported an improved mood, no rage, better interaction with his son, a relaxed mind, and better sleep habits. In February 2017, the Veteran reported financial and family stressors. He was tearful about his disabled son’s most recent seizure. In May 2017, the Veteran and his family had a family therapy session. He expressed a positive impact of the session. In June 2018, the Veteran presented with isolation, feelings of apathy, withdrawal, and reduced pleasure. He reported slight improvement in his relationship with his wife. In August 2018, the Veteran presented with increased anger caused by his family struggles, increased physical struggles, financial problems and not feeling supported. He stated that his wife and son were withdrawing and that his dog had been comforting him. The Veteran underwent another VA examination in October 2019. The examiner found that the Veteran’s psychiatric disorder caused occupational and social impairment with reduced reliability and productivity. He reported that he was separated from his wife “off and on” since 2012. They had been married for almost 20 years. The Veteran reported challenges in his relationship with his youngest son. He felt responsible for the son’s depression. His symptoms throughout the entire period included low mood, low energy, decreased frustration tolerance, insomnia, anger, depressive symptoms, amotivation, decreased self-worth, sleep disturbance, anxiety, restlessness, agitation, lower self-esteem, pessimism, irritability, social withdrawal, feeling detached from loved ones, anhedonia, appetite and libido changes, sadness with some tearfulness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work/social relationships, difficulty adapting to stressful circumstances, mild memory loss, and flattened affect. He reported memory problems in August 2014, however, in November 2014 he stated that he no longer had memory problems since he started regularly taking his psychiatric medication. Mental health assessments revealed normal appearance, appropriate grooming, calm and cooperative attitude, spontaneous and fluent speech, full orientation, cooperative behavior, good eye contact, normal psychomotor activity, depressed or irritable mood, congruent affect, linear thought process, normal thought content, normal judgment, and good insight. His affect was also described as angry in March 2011, constricted in February 2013, and distressed in October 2013. He mostly denied homicidal ideation and paranoia. There was some passive suicidal ideation in October 2013, but the Veteran denied active intent or plan. In August 2014, he admitted intermittent suicidal ideation since his wife left. In November 2014, he stated that he was too busy to have suicidal ideation. An October 2015 VA examination report noted suicidal ideation without plan or intent. In February and March 2016, he reported fleeting passive suicidal ideation over the past year due to his psychosocial stressors. He stated that his children were protective factors. In March 2016 he continued to report intermittent suicidal ideation without plan. He also reported derogatory auditory hallucinations that occurred once or twice a day and visual hallucinations that occurred a few times a day. In April 2016, he had suicidal ideation with a plan to shoot himself with a gun but did not go through with it because of his children and he didn’t have the means. He also described homicidal ideation towards no one in particular. The Veteran also had auditory hallucinations commanding him to kill himself and visual hallucinations of shadows. May 2016 VA treatment records noted the Veteran’s report of suicidal ideation related to his frustration with physical limitations and medical providers believing that he was malingering. He stated that he generally didn’t care about life. His audio and visual hallucinations continued. In November 2016, the Veteran adamantly denied homicidal and suicidal ideation. He continued to experience auditory and visual hallucinations, but they were not as intense with current medications. A March 2017 VA treatment record noted that the Veteran’s commitment to his children continued to be protective factors that prevented him from acting on fleeting, passive suicidal ideation. In April 2017, the Veteran explained that he had suicidal thoughts because of his physical limitations and finances. Based on the evidence discussed in detail above, and assessing the severity, frequency, and duration of his dysthymic disorder symptoms, the Board finds that the Veteran’s service-connected dysthymic disorder has been productive of occupational and social impairment that more nearly approximated deficiencies in most area. As discussed in detail above, the Veteran’s psychiatric disorder was manifested by symptoms associated with a 70 percent rating, such as suicidal ideation, near-continuous depression, irritability, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Board also notes that the Veteran had unlisted symptoms such as decreased frustration tolerance, pessimism, and low energy. Such symptoms appeared to be more situational and decreased in severity with the help of therapy. Therefore, the Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board acknowledges that the Veteran also had persistent hallucinations, a symptom associated with a 100 percent rating. However, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran has been granted a TDIU based partly on his dysthymic disorder, he was not totally socially impaired. While the evidence clearly shows ongoing marital struggles and a difficult relationship with his younger son, the evidence also shows that the Veteran remained married to his wife, that he had an “on and off’ relationship with his wife, that he provided care for his disabled son, and participated in church activities. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Although there are multiple instances of suicidal ideation documented during the appeal period, there are also many instances where the Veteran denied such. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the VA psychiatric examinations. The Board notes that in April 2016, the Veteran admitted that he had a plan to shoot himself with a gun but did not go through with it. Otherwise, the Veteran’s suicidal ideation was described as fleeting and passive. He also consistently stated that his children were protective factors that prevented him from acting on his suicidal ideation. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. Accordingly, a 70 percent rating is warranted for the Veteran’s dysthymic disorder for the entire period on appeal under 38 C.F.R. § § 4.130, Diagnostic Code 9433. 2. Entitlement to a TDIU The Veteran contends that he is entitled to TDIU benefits. After reviewing the evidence of record, the Board finds that TDIU benefits are warranted. 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. 38 C.F.R. § 4.16. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. A finding of total disability is appropriate, “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). Id. In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Throughout the period on appeal, service connection has been in effect for dysthymic disorder, rated as 70 percent disabling; chronic low back pain, rated as 40 percent disabling; neuralgia of the right leg, rated as 10 percent disabling prior to August 26, 2014, and 20 percent thereafter; and neuralgia of the left leg, rated as 10 percent disabling. For purposes of establishing one 60 percent rating, disabilities resulting from common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a)(2). In this regard, the medical evidence clearly shows the Veteran’s service-connected disorders were caused by his service-connected chronic low back pain. Therefore, they are considered to be a single disability because they share a common etiology. His combined rating throughout the period on appeal is greater than 60 percent. As such, the schedular criteria for TDIU are t met. June 2011 VA treatment records noted that the Veteran had limited leave at his job because he used his leave on days when his pain level was severe. He filed for medical retirement because he was unable to fulfill his duties due to pain. VA treatment records indicated that the Veteran was forced to retire from his job in November 2011. A November 2012 psychological evaluation indicated that the Veteran was of average intelligence, but his mental process was very slow, and his attention and concentration were very poor. An April 2012 VA examination report noted that the Veteran previously worked at the VA for five years and that he recently retired from USPS after 26 years. The Veteran’s back disorder impacted his ability to work due to difficulty with heavy lifting, bending, prolonged walking, and climbing stairs. The August 2014 VA examination report noted that the Veteran would be unable to return to the heavy lifting, loading, and driving task duties of his job as a mail carrier or any similar job. He was capable of sedentary work. A May 2016 VA treatment record noted that the Veteran’s chronic pain from multiple disorders, including his service-connected back disorder, significantly impacted his quality of life. He reported that he was unable to do many of the tasks that he wanted to do. The Veteran also experienced significant anger and depression secondary to his pain and physical limitations. The Veteran’s pain increased when sitting or standing for prolonged periods, driving, engaging in physical overactivity, and having negative emotions. During the October 2015 VA examination, the Veteran reported that he initially had trouble finding post-military employment due to his physical disability. He then obtained a degree in business administration and computer science. He stated that he struggled to complete the program due to difficulty concentrating and irritability. He also worked at the VA as an accounts receivable clerk for five years. He then worked at the post office as a carrier until he was promoted to a managerial position. He was written up for taking too much time off work. The Veteran retired after 26 years due to his medical issues. The October 2019 VA back examination report indicated that the Veteran was unable to sit, stand, or walk for prolonged periods. He was also unable to jog, jump, hike, climb, run, sprint, squat, hop, dance, kneel, or crawl. The Veteran submitted an October 2020 private vocational assessment. It was noted that the Veteran had an associate degree in business management and had no other degrees, licenses, or certifications. He last worked in 2011 as a mail carrier, where he was responsible for driving a mail route, sorting mail and packages, and delivering/unloading mail. Prior to that, he worked as a mail carrier supervisor for 9 years until he was demoted due to his service-connected disorders. His duties caused him extreme pain and discomfort and negatively impacted his ability to operate a vehicle. The Veteran stated that he missed work due to his psychiatric, low back, and lower extremity symptoms. The Veteran reported symptoms such as difficulty maintaining attention and concentration, isolation, irritability, inability to interact with people for prolonged periods, memory loss, difficulty standing, walking, or sitting for prolonged periods, and constantly changing positions. He was able to walk, stand, and sit for five to ten minutes at a time before needing to change positions. His bilateral lower extremity pain, numbness, and tingling distracted him because he was constantly trying to get into a position that provided relief. He was also unable to drive for more than a few minutes. The vocational consultant opined that the Veteran’s records were consistent with an individual who is disabled and more likely than not unable to secure and follow substantially gainful employment, including sedentary unskilled work, since at least December 2011 due to his service-connected disorders. Based on the foregoing, and resolving all doubt in favor of the Veteran, the Board finds that the service-connected disorders rendered him unable to maintain substantially gainful employment consistent with his education and occupational background. The Veteran’s employment history consists of work as an accounts receivable clerk, a mail carrier, and a mail carrier supervisor. The VA examination reports, November 2012 private psychological evaluation, and the October 2020 private vocational assessment showed that the Veteran’s service-connected disorders impacted his ability to work. The VA examiners found that his low back and bilateral lower extremity disorders impacted his ability to sit, stand, or walk for prolonged periods and that he needed to frequently alternate positions. The evidence of record shows that his service-connected dysthymic disorder resulted in poor concentration and attention, an inability to interact with others, irritability and isolation. When considering the Veteran’s usual occupation as a mail carrier it is reasonable to conclude that the Veteran would be unable to perform such duties due to his service-connected disorders. The Board acknowledges that the Veteran’s work history also includes some sedentary work, however, the evidence shows that the Veteran’s psychological symptoms would greatly impact his ability to perform even sedentary jobs. In sum, the Board is satisfied that the service-connected disabilities have been so severe as to render the Veteran unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. The claim of entitlement to a disability rating in excess of 40 percent for the service-connected low back disorder is remanded. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2019, the Board remanded the claims and instructed the RO to obtain retroactive VA medical opinions in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board noted that the Veteran reported flare-ups during the April 2012 and August 2014 examinations. The examiner was to interview the Veteran about the nature of the flare-ups and provide a retroactive opinion as to any additional functional loss during flare-ups at that time. The examiner was also to review the range of motion results from April 2012 and August 2014 and determine the reduction of range of motion if tested in both active and passive motion and in weightbearing and non-weightbearing. With regard to the functional loss during flare-ups, the October 2019 examiner stated that the Veteran went to the emergency room after raking some leaves in the yard and that his flare-up was conservatively managed. The examiner stated that there was no estimated reduction in range of motion. However, it appears that the VA examiner’s opinion was based on a March 2016 incident noted in the VA treatment records in which the Veteran strained his lower back while raking the yard. It does not appear that the examiner obtained information about the nature of the flare-ups mentioned during the April 2012 and August 2014 flare-ups. With regard to whether there was reduced range or motion on active/passive motion and weightbearing/non-weightbearing, the examiner stated that the Veteran’s range of motion was reduced in April 2012 and August 2014 because of a flare-up that has since resolved. The examiner stated that there would have been no reduction during the flare-up. The examiner did not address whether there would have been a reduction in range of motion in April 2012 and August 2014 if range of motion testing was conducted in both active and passive motion and in weight-bearing and non-weightbearing. Accordingly, a remand is required to obtain the VA opinion. See Stegall v. West, 11 Vet. App. 268 at 271. 2. The claim of entitlement to a higher disability rating for right leg neuralgia, rated as 10 percent prior to August 26, 2014, and 10 percent, thereafter, is remanded. Please see discussion in paragraph 3. 3. The claim of entitlement to a disability rating in excess of 10 percent for left leg neuralgia is remanded. The Veteran’s bilateral lower extremity neuralgia was most recently examined during the October 2019 VA back examination. Unfortunately, the examination report did not provide the examiner with an option of the category “moderately severe,” in evaluating the Veteran’s bilateral lower extremity neuralgia--criteria that is essential in rating the disability--but was only provided the options of “mild,” “moderate,” or “severe. As such, the Board finds that an additional VA examination is warranted to determine the current severity of the Veteran’s bilateral lower extremity neuralgia. The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § § 3.159 (e). 2. Then, the RO or the AMC should obtain an addendum medical opinion from the examiner who conducted the Veteran’s October 2019 examination. If this examiner is no longer available, then the claims file must be returned to a physician of similar expertise. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should determine whether the Veteran’s range of motion results from the April 2012 and August 2014 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. To the examiner’s best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups reported during the April 2012 and August 2014 VA examinations, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. The examiner should assess this impairment during flare-ups and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, the RO or the AMC should schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected bilateral lower extremity neuraglia. The electronic records should be made available to and reviewed by the examiner. All necessary studies should be performed. Ensure that all information required for rating purposes is provided. The examiner must identify the nerves affected and express an opinion as to the severity of the nerve involvement in terms of being “mild,” “moderate,” “moderately severe,” or “severe.” 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. McKinley, 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.