Citation Nr: 21013741 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-14 425 DATE: March 10, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, from March 20, 2006, for posttraumatic stress disorder (PTSD) with depression and alcohol use disorder, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from March 20, 2006 through July 29, 2010, is granted, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine with intervertebral disc syndrome is remanded. Entitlement to special monthly compensation (SMC) based on the regular need for the aid and attendance of another person or on account of being housebound is remanded. FINDINGS OF FACT 1. Since the March 20, 2006 effective date of service connection, the Veteran’s PTSD with depression and alcohol use disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking, and mood; symptoms and impairment have not more nearly approximated both total social and occupational impairment. 2. During the period from March 20, 2006 through July 29, 2010, the Veteran was service-connected for the following disabilities: PTSD with depression and alcohol use disorder, now rated 70 percent disabling; tinnitus, rated 10 percent disabling; degenerative joint disease of the lumbar spine with intervertebral disc syndrome, rated 10 percent disabling; degenerative joint disease of the left wrist, rated 10 percent disabling; right wrist strain, rated noncompensable; and bilateral hearing loss, rated noncompensable; the Veteran’s combined disability rating is now 80 percent from March 20, 2006 through July 29, 2010. 3. From March 20, 2006 through July 29, 2010, the Veteran’s service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, from March 20, 2006, for PTSD with depression and alcohol use disorder, are met. 38 U.S.C. § §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Codes (DC) 9434-9411. 2. The criteria for a TDIU due to service-connected disabilities, from March 20, 2006 through July 29, 2010, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to November 1975. These matters come before the Board of Veterans’ Appeals (Board) from November 2010, August 2011, September 2013, and March 2018 decisions. In the November 2010 decision, the agency of original jurisdiction (AOJ) made the following pertinent determinations: granted service connection for radiculopathy of the right and left lower extremities and assigned initial 10 percent disability ratings, both effective from July 30, 2010; and denied entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine with intervertebral disc syndrome. In the August 2011 decision, the AOJ denied entitlement to a TDIU. In the September 2013 decision, a Decision Review Officer (DRO) denied entitlement to SMC based on the need for regular aid and attendance of another person or on account of being housebound. In June 2015, the Board awarded service connection for depression and a TDIU and remanded the issues of entitlement to higher initial ratings for right and left lower extremity radiculopathy, entitlement to an increased rating for degenerative joint disease of the lumbar spine with intervertebral disc syndrome, and entitlement to SMC for further development. In July 2015, a DRO made the following determinations: awarded service connection for depression and assigned an initial 30 percent disability rating, from July 30, 2010; and awarded a TDIU, from September 15, 2011. In the March 2018 decision, a DRO awarded service connection for PTSD and rated this disability in conjunction with the already service-connected depression. [The Board notes parenthetically that the March 2018 decision erroneously listed the PTSD issue as being denied, however service connection for PTSD was awarded in the discussion section of the decision]. An initial 50 percent disability rating for the service-connected psychiatric disability was assigned, from July 30, 2010. The DRO also assigned an effective date of July 30, 2010 for the award of a TDIU. In August 2018, the Board denied entitlement to initial ratings higher than 10 percent for left and right lower extremity radiculopathy, denied entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine with intervertebral disc syndrome, and denied entitlement to SMC based on the regular need for the aid and attendance of another person or on account of being housebound. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, a DRO assigned a 70 percent rating for PTSD with depression and alcohol use disorder, from September 19, 2019. In a June 2020 Memorandum Decision, the Court set aside the Board’s August 2018 decision, in part, and remanded to the Board the issues of entitlement to higher initial ratings for left and right lower extremity radiculopathy, entitlement to an increased rating for degenerative joint disease of the lumbar spine with intervertebral disc syndrome, and entitlement to SMC for readjudication in compliance with the Court’s decision. In January 2021, the Board determined that revision of a March 2007 rating decision which denied entitlement to service connection for PTSD with depression was warranted on the basis of clear and unmistakable error (CUE). Pursuant to the Board’s decision, the AOJ assigned an effective date of March 20, 2006 for the award of service connection for the service-connected psychiatric disability by way of a January 2021 rating decision. A 50 percent disability rating was assigned, from March 20, 2006 through September 18, 2019. As for characterization of the issues on appeal, the AOJ implemented the Board’s June 2015 decision by way of the July 2015 decision, in which a DRO awarded a TDIU, from September 15, 2011. As explained above, a DRO assigned an effective date of July 30, 2010 for the award of a TDIU in the March 2018 decision. However, the evidence reflects that the Veteran was unemployed prior to July 30, 2010 and that he was unable to work due to his service-connected psychiatric and back disabilities. Entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disability, the Veteran’s claim for the highest rating possible for his service-connected psychiatric disability, and the evidence of unemployability, the issue of entitlement to a TDIU, prior to July 30, 2010, is properly before the Board as part and parcel of the appeal for a higher initial rating for the service-connected psychiatric disability. The claim period on appeal for the Veteran’s TDIU claim dates back to the March 20, 2006 effective date of service connection for PTSD with depression and alcohol use disorder. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). I. Higher Initial Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Entitlement to a higher initial rating for PTSD with depression and alcohol use disorder, rated 50 percent disabling prior to September 19, 2019 and 70 percent disabling since that date When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency 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 evaluating the level of disability from a mental disorder, VA will also 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). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130. The Veteran’s PTSD with depression and alcohol use disorder is rated under 38 C.F.R. § 4.130, DCs 9434-9411. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 9434-9411 reflects that the Veteran’s psychiatric disability is partially described as both major depressive disorder under DC 9434 and PTSD under DC 9411. These disabilities are both rated according to the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, 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 when symptoms such 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 cause total occupational and social impairment. Under the General Rating 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). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that, for the following reasons, the symptoms of the Veteran’s PTSD with depression and alcohol use disorder have resulted in deficiencies in most of the areas needed for a 70 percent rating, but no higher, under the General Rating Formula during the entire period since the March 20, 2006 effective date of service connection. A May 2005 “Report of Contact” form (VA Form 119), a May 2005 letter from the Veteran’s employer, a September 2005 statement from the Veteran (VA Form 21-4138), a January 2006 examination report from K. Stearns, Ph.D., VA treatment records dated from June 2005 to May 2017, a March 2006 mental impairment questionnaire from the Concord Vet Center, an April 2006 mental status evaluation from the Vet Center, a September 2006 letter from the Vet Center, a January 2007 statement from the Veteran (VA Form 21-4138), a June 2007 statement from his brother, a March 2011 statement from his friend, a September 2011 letter from a VA psychiatrist, and statements from the Veteran’s friends dated in December 2011 and March 2013 indicate that the Veteran was let go from his job as a maintenance mechanic in May 2005 because he was mentally and physically unable to continue with his job. For instance, his memory and concentration were impaired and he was repeatedly unable to follow directions and instructions. He attended church on a regular basis, joined a men’s group affiliated with the church with whom he performed community service work, made friends at his church, visited and spoke with his father, step-mother, siblings, and friends, spent time completing projects around his home, and did not have any difficulties with activities of daily living. He generally lived alone before getting married in July 2016, but lived with some friends for periods of time. As for symptoms of his psychiatric disability, the Veteran experienced impaired sleep, depression, anxiety, episodes of tearfulness, poor memory, disorganized thinking, low energy, appetite disturbance, emotional lability, paranoia or inappropriate suspiciousness, feelings of guilt/worthlessness, difficulty thinking or concentrating, passive suicidal ideation 1 or 2 times per week with no plans (e.g., he threatened to kill himself with a gun on one occasion in December 2016), social withdrawal or isolation, loss of interest in activities, illogical thinking or loosening of associations, irritability, intrusive memories of in-service trauma, nightmares, hypervigilance, a hyperstartle response, emotional numbness that caused problems with intimate relationships, and poor self-esteem. He had poor mental abilities and aptitude in numerous categories necessary to perform unskilled work. For example, he was significantly impaired in his ability to remember work-like procedures, understand and remember very short and simple instructions, maintain attention for two hour segments, maintain regular attendance and be punctual, sustain an ordinary routine without special supervision, complete a normal workday and workweek without interruptions from psychiatric symptoms, and deal with normal work stress. Examinations revealed that the Veteran was pleasant, had good eye contact, was fully alert and oriented, had generally good hygiene and grooming, was casually dressed, and had normal psychomotor activity and kinetics. His mood was occasionally euthymic/sad/dysphoric/depressed/anxious with congruent/restricted/blunted/flat affect, his speech was occasionally rapid/pressured, his memory was questionable, his insight and judgement were occasionally only poor to fair, and his thought form/content was occasionally circumstantial and ruminative. There was no evidence of psychotic symptoms, there were no delusions or hallucinations, there was no homicidal ideation, and cognition was intact. The Veteran was diagnosed as having depression and PTSD. The Veteran reported during a July 2017 VA psychiatric examination that he had been married since July 2016 and that his relationship with his wife was “ok,” but that they argued often and that little things could “set [him] off.” As a result, they attempted marriage counseling. He lived with his wife and step-son, with whom he generally had a good relationship. He also maintained occasional contact with his biological son. He occasionally spoke with a fellow service member, had some childhood acquaintances, regularly spoke with his brother, and occasionally spoke with his sister. He spent his free time with his wife and performing household chores. He was last employed as a mechanic in 2005, at which time he was let go because he kept forgetting to lock out the machinery. With respect to psychiatric symptoms, the Veteran experienced daily depression; anger; social isolation; recurrent, involuntary, and intrusive distressing memories of traumatic events; recurrent distressing dreams in which the content and/or affect of the dreams were related to the traumatic events; intense or prolonged psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic events; avoidance of, or efforts to avoid, distressing memories, thoughts, or feelings about or closely associated with the traumatic events; avoidance of, or efforts to avoid, external reminders that aroused distressing memories, thoughts, or feelings about or closely associated with the traumatic events; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; a persistent negative emotional state; irritable behavior and angry outbursts (with little or no provocation); hypervigilance; an exaggerated startle response; and sleep disturbance. He also experienced a depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting). Examination revealed that the Veteran was pleasant, that his affect was stable, and that his speech was of average rate, tone, and prosody. There was no suicidal or homicidal ideation, the Veteran did not experience any audio or visual hallucinations, and he was generally cooperative. Diagnoses of PTSD, major depressive disorder, alcohol use disorder, and cocaine use disorder were provided. The examiner who conducted the July 2017 examination concluded that the level of occupational and social impairment caused by the Veteran’s psychiatric disability met the criteria for a 10 percent rating under the General Rating Formula (i.e., 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). A January 2018 VA psychology note and the report of a September 2019 VA psychiatric examination reflect that the Veteran remained married, but that the relationship with his wife was “rocky” because his wife felt as if she had to “walk on eggshells” due to Veteran’s unpredictable anger and the Veteran felt as if his wife treated him poorly and blamed him for things. The Veteran was verbally abusive towards his wife. The Veteran and his wife lived with the Veteran’s stepson, with whom he had a strained relationship because he did not understand his stepson and had little patience. He was getting along better with his stepdaughters and had not been in contact with his biological son since July 2019 because his son was upset about the Veteran’s alcohol use. He was angry at his sisters and other family for not recognizing his military service, reaching out to him, or being supportive. The Veteran had a few friends, but they had become a little more distant from him since he had resumed drinking. He did not have any hobbies. Moreover, the Veteran would disappear for hours during the day and his wife did not know where we went. He would come home drunk, and had not returned home at all on one occasion. A few days prior to the September 2019 examination, the Veteran threatened to kill he and his wife’s renter, attempted to hit him, and later hit his wife in the face with a pillow and threatened to kill all of his wife’s animals. He felt depressed all of the time, had a low mood and feelings of hopelessness, was not motivated to do anything, and generally wanted to stay home. He rated the severity of his symptoms as 6-7/10. He experienced suicidal ideation on a regular basis, but he did not have any active plan, he did not believe in suicide, and he denied ever taking steps to enact any of his self-harm thoughts. His anger problems had escalated, his anger sometimes led to aggressive behavior, and his wife described him as being angry all of the time. He did not trust anyone, avoided people and crowds, was always looking over his shoulder, and experienced nightmares and impaired sleep. He had not received any mental health treatment in 2 years and was not taking any medications for his psychiatric disability. Additionally, the Veteran experienced recurrent, involuntary, and intrusive distressing memories of traumatic events; recurrent distressing dreams in which the content and/or affect of the dreams were related to the traumatic events; dissociative reactions in which he felt or acted as if the traumatic events were recurring; intense or prolonged psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic events; marked physiological reactions to internal or external cues that symbolized or resembled an aspect of the traumatic events; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic events; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; persistent distorted cognitions about the cause or consequences of the traumatic events that led the Veteran to blame himself or others; a persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; and a persistent inability to experience positive emotions. Also, he experienced irritable behavior and angry outbursts (with little or no provocation), reckless or self-destructive behavior, hypervigilance, a hyperstartle response, anxiety, paranoia, suspiciousness, nightmares, intrusive memories, depression, low motivation, difficulty enjoying activities, fatigue, change in appetite, social withdrawal, impaired concentration, difficulty in adapting to stressful circumstances (including work or a worklike setting), and impaired impulse control. Examinations revealed that the Veteran was casually dressed and that his grooming and hygiene were appropriate. His eye contact was good and he was generally cooperative. His mood was depressed/overwhelmed/irritable/frustrated, his affect was congruent with mood, and his speech was clear and goal-directed with no apparent thought disturbances . He felt persecuted, had thoughts of running away, and had feelings of hopelessness and worthlessness. His judgment and insight were good, his psychomotor activity was normal, he was not experiencing any suicidal or homicidal ideation at the time of the examination, and he was fully oriented to time, place, person, and situation. The Veteran was diagnosed as having depression, PTSD, and alcohol use disorder. The examiner who conducted the September 2019 examination concluded that the occupational and social impairment associated with the Veteran’s psychiatric disability met the criteria for a 70 percent rating under the General Rating Formula (i.e., occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood). The above evidence reflects that the Veteran has been unemployed during the entire claim period and that he experienced problems while he was employed due to symptoms of his psychiatric disability (e.g., memory loss). With respect to family relations, the Veteran became married during the claim period, but he and his wife have experienced relationship difficulties due to the Veteran’s irritability and outbursts of anger. He also has strained relationships with his step-son and his biological son due to his psychiatric symptoms and alcohol use. Moreover, his symptoms of impaired judgement, nightmares, intrusive thoughts of traumatic events in service, impaired concentration and memory, suicidal ideation, anxiety, depression, anger, and irritability are reflective of deficiencies in the areas of judgment, thinking, and mood. The Board acknowledges that the examiner who conducted the July 2017 VA psychiatric examination indicated that the severity of the Veteran’s psychiatric symptoms met the criteria for a 10 percent rating under the General Rating Formula. However, the question of which criteria the symptoms and impairment more nearly approximate is an adjudicatory rather than a medical determination. 38 C.F.R. § 3.100(a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present”). Given the above evidence, the overall symptomatology described and demonstrated during the claim period most closely approximates the criteria for a 70 percent rating under the General Rating Formula and an initial 70 percent rating for PTSD with depression and alcohol use disorder is warranted since the March 20, 2006 effective date of service connection. The Board also finds, however, that a rating higher than 70 percent is not warranted at any time during the claim period. The Board acknowledges that the Veteran has experienced significant occupational impairment due to his psychiatric disability throughout the claim period and that he has been unemployed during the entire claim period. Regardless, even if it is conceded that there is evidence approximating total occupational impairment due solely to the Veteran’s psychiatric disability during the claim period, there have not been symptoms or impairment more nearly approximating total social impairment. Although the Veteran has experienced marital problems due to his psychiatric disability and has experienced estranged relationships with some family members due to his psychiatric symptoms and alcohol use, he has nonetheless maintained relationships with his spouse, step-son, biological son, father, and siblings, has maintained some other friendships during the claim period, and was involved in community service with a church group during part of the claim period. He has reported memory loss throughout the claim period, but he has not experienced impaired memory to such an extent or severity that there has been memory loss for names of close relatives, own occupation, or name. Also, he has not experienced hallucinations or delusions, he has not generally demonstrated gross impairment in thought processes or communication, he has been cooperative with examiners and has not exhibited any grossly inappropriate behavior, he has not experienced any significant homicidal ideation, he has been able to perform activities of daily living, and he has remained fully oriented to time and place. The Board notes that the Veteran has experienced suicidal ideation during the claim period and verbally threatened to kill he and his wife’s renter on one occasion while intoxicated. Persistent danger of hurting oneself or others is a symptom listed in the criteria for a 100 percent rating. Here, however, there has been no persistent danger of hurting oneself or others. Thus, the severity, frequency, and duration of the Veteran’s suicidal ideation and threats to others has not risen to the level contemplated by the 100 percent disability rating. Although the Veteran has expressed passive suicidal ideation, he has regularly denied any active intent or plan involving self-harm or harm to others, and suicidal ideation is contemplated by a 70 percent rating. Overall, the Veteran has not exhibited most of the symptoms indicative of a 100 percent rating under the General Rating Formula, and total social impairment has not been demonstrated or more nearly approximated during the claim period. In sum, the Board finds that, overall, the Veteran has not exhibited most of the symptoms listed in the criteria for the maximum, 100 percent rating under the General Rating Formula as examples of the type and extent, frequency or severity, as appropriate, to indicate both total social and occupational impairment at any point since the effective date of service connection. Rather, the Veteran’s psychiatric symptoms and impairment have most closely approximated the criteria for a 70 percent rating under the General Rating Formula during the entire claim period. As a final point, the Board notes that in conjunction with the appeal for a higher initial rating for PTSD with depression and alcohol use disorder, other that the issue of entitlement to a TDIU prior to July 30, 2010 which is discussed below, neither the Veteran nor his representative have raised any other related issues, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § § 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be 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. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31. Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disabilities, prior to July 29, 2010 Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran’s service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him during the entire claim period from March 20, 2006 through July 29, 2010. As explained above, the Veteran’s TDIU claim is on appeal as part and parcel of his appeal for a higher initial rating for his service-connected psychiatric disability. Therefore, the claim period for the TDIU matter dates back to the March 20, 2006 effective date of service connection for PTSD with depression and alcohol use disorder. Harper, 30 Vet. App. at 361-62. The Board points out that the Veteran’s appeal for higher initial ratings for left and right lower extremity radiculopathy and for an increased rating for his service-connected back disability only dates back to the Veteran’s July 30, 2010 claim. During the period from March 20, 2006 through July 29, 2010, the Veteran was service-connected for the following disabilities: PTSD with depression and alcohol use disorder, now rated 70 percent disabling; tinnitus, rated 10 percent disabling; degenerative joint disease of the lumbar spine with intervertebral disc syndrome, rated 10 percent disabling; degenerative joint disease of the left wrist, rated 10 percent disabling; right wrist strain, rated noncompensable; and bilateral hearing loss, rated noncompensable. The Veteran’s combined disability rating is now 80 percent during the entire period from March 20, 2006 through July 29, 2010. The remaining question is whether his service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him during this period. In addition to the evidence set forth above, medical records dated from December 1998 to January 2006, VA examination reports dated in April 2005 and June 2007, a June 2003 “Veteran’s Application for Compensation and/or Pension” form (VA Form 21-526), a May 2005 letter from a former employer, statements from the Veteran dated in February 2005 and March 2011, his SSA disability records, and “Veteran’s Application for Increased Compensation Based on Unemployability” forms (VA Form 21-8940) dated in December 2010 and August 2012 reveal that the Veteran has a high school diploma, has completed “some college,” and received a certificate in motorcycle repair. He was imprisoned for varying periods following service for various offenses and had employment experience in mechanical work/industrial maintenance (which involved heavy lifting and carrying, flexibility, and standing). He had lost some jobs due to drug use and contended that he was unable to work due to bilateral knee disabilities, a back disability, arthritis, memory loss, depression, hepatitis C, and hearing loss. He secured a full-time job in February 2005 as a mechanic, but he had to lie down after each shift due to back pain. He was let go from this position in May 2005 because he was mentally and physically unable to perform the job (e.g., he was unable to follow instructions and would forget to complete essential tasks). He unsuccessfully attempted to secure other jobs, has been unemployed since May 2005, and was granted SSA disability benefits for disorders of the back (discogenic and degenerative) and personality disorders. In a March 2006 statement, a VA physician reported that the Veteran suffered from multiple medical problems, including chronic lumbar disc disease, chronic hepatitis C, and depression. The physician considered him to be “totally disabled for any gainful employment.” The physician who conducted an April 2011 VA examination opined that it was most likely that the Veteran was not able to engage in physical or non-physical work due to his service-connected disabilities. Also, his non service-connected chronic hepatitis C and bilateral degenerative joint disease increased the likelihood that he was unable to perform physical or non-physical work. The physician reasoned that the service-connected back and wrist disabilities reduced the Veteran’s stamina to sit, stand, walk, etc., and that he must frequently change positions and use narcotics for pain control. His wrist disabilities were bad enough that he would drop tools and have problems with fine manipulation. Almost all non-physical jobs require the use of both hands and the Veteran did not have full use of either hand. In addition, his non service-connected disabilities compounded his employment problems in that his hepatitis C resulted in fatigue and psychological effects and his knee disabilities limited his mobility (although his back disability was usually the reason that he stopped working). The examiner who conducted February 2013 VA examinations opined that it was likely (“as least as likely as not”/“50 percent or greater probability”) that the Veteran would be able to perform light work in spite of his service-connected disabilities and non-physical work in spite of his service-connected back disability. The examiner noted that the Veteran did not experience any problems with voice quality, that he wore a hearing aid, that anemia could cause fatigue and nutritional deficiencies, that he used Ensure for diverticulitis, and that he experienced 2-3 stools a day. Also, he needed to be able to stand and move as needed due to discomfort, he had a history of depression which appeared to be stable, he had not applied for or accepted work after he was laid off in 2005, he found it hard to find work due to his history of incarceration and drug use and had not tried to find work, and he had been told that his hepatitis C was progressing, that his treatment was not working, and that he was not a transplant candidate due to drug use. In sum, the evidence indicates that the Veteran has completed no more than 1 year of college, that his employment experience involves predominantly physical work as a mechanic and in maintenance, that he experienced difficulties with his prior employment due to his service-connected back and psychiatric disabilities and stopped working in 2005 due to these disabilities, and was not engaged in any gainful employment during the period from March 20, 2006 through July 29, 2010. Although some of his non service-connected disabilities contributed to his inability to work, his medical records and lay statements reflect significant impairments from his service-connected disabilities (including, but not limited to, back and wrist pain, limitation of joint motion, depression, anxiety, irritability, outbursts of anger, impaired concentration and memory, and suicidal ideation) that would have prevented him from performing any type of gainful employment consistent with his limited education and occupational experience. While there are medical opinions of record that the Veteran was not totally unemployable due to his service-connected disabilities alone, medical examiners are only responsible for providing a full description of the effects of disability upon a veteran’s ordinary activity. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The above discussion of the severity of the symptoms of the Veteran’s service-connected disabilities and his educational and occupational experience reflects that the preponderance of the evidence is in favor of a conclusion that he was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities during the entire claim period prior to July 30, 2010. Hence, entitlement to a TDIU, from March 20, 2006 through July 29, 2010, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy, entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy, entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine with intervertebral disc syndrome, and entitlement to SMC based on the regular need for the aid and attendance of another person or on account of being housebound are remanded. While the Veteran was most recently afforded a VA examination to assess the severity of his service-connected back disability in July 2017, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examination does not contain passive range of motion measurements or evidence pertaining to pain on both weight-bearing and non weight-bearing testing. Moreover, the July 2017 examiner reported that the Veteran was being examined immediately after repetitive use over time, but that an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time could not be provided without resort to speculation. The only explanation for this opinion was that the Veteran was not experiencing any additional loss of motion or flare up during the July 2017 examination. It is unclear whether the examiner’s inability to describe functional loss with repeated use over time in terms of range of motion was based upon all procurable and assembled data. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that before the Board can rely on a health care professional’s conclusion that an opinion would be speculative, the health care professional must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence, it must be clear that the health care professional has considered all procurable and assembled data, the health care professional must do all that reasonably should be done to become informed about a case, and the health care professional must clearly identify precisely what facts cannot be determined. If the record is ambiguous as to whether sufficient information was obtained, “it is the Board’s duty to remand for further development.” Id. See also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (although an examiner couched her refusal to offer an opinion regarding flares in broad terms, stating there is “no conceptual or empirical basis for making such a determination without directly observing function under these circumstances,” the apparent universality of this statement is contradicted by VA’s Clinician’s Guide, which specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans). In light of the deficiencies of the July 2017 examination, the Board finds that a remand is necessary to afford the Veteran a new examination to assess the severity of his service-connected back disability. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Northern California Health Care System (dated to January 2006), the Martinez Vista electronic records system (dated to March 2007), the VA Palo Alto Health Care System (dated to December 2004), the VA Eastern Kansas Health Care System (dated to October 2019), and the Kansas City Vista electronic records system (dated to February 2018). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, as additional information will be obtained that is relevant to the issues of entitlement to higher initial ratings for left and right lower extremity radiculopathy and entitlement to SMC during the back examination that is being sought upon remand, Board action on these matters, at this juncture, would be premature. Hence, these matters are being remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the VA Northern California Health Care System for the period since January 2006; the Martinez Vista electronic records system for the period since March 2007; the VA Palo Alto Health Care System for the period since December 2004; the VA Eastern Kansas Health Care System for the period since October 2019; the Kansas City Vista electronic records system for the period since February 2018; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability and associated right and left lower extremity radiculopathy. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the thoracolumbar spine. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.