Citation Nr: 21015772 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 09-22 032 DATE: March 18, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for post traumatic neuralgia, of the lumbosacral spine, (back disability) is denied. Entitlement to a separate disability rating for sciatic nerve, left lower extremity, secondary to the Veteran’s back disability, is granted. REMANDED Entitlement to service connection for depression, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, (TDIU) to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The competent and probative evidence of record does not support the finding that, at any time during the appeal period, the Veteran has been diagnosed with an ankylosed spine or prescribed bed rest by a physician for an incapacitating episode lasting more than 6 weeks during any 12-month period. 2. The evidence of record supports the finding that the Veteran has a sciatic nerve disability of the left lower extremity and that such is related to his back disability. A separate rating for this condition is warranted. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for a back disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for a separate disability rating for sciatic nerve, left lower extremity, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b), 4.1-4.7, 4.10, 4.21, 4.124 DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to October 1988. This matter comes before the Board of Veteran’s Appeals (Board) from a January 2007 rating decision that denied a disability rating in excess of 40 percent for the Veteran’s back disability and a TDIU issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2011, when the Board remanded the claims of TDIU and increased rating for the Veteran’s back, for development. In this decision, the Board also referred the issue of service connection for depression, as the Board found it had been raised by the record but had not been adjudicated by the RO. A January 2018 rating decision denied the Veteran’s claim of service connection for depression, secondary to his back disability. The Board finds the January 2011 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, during the pendency of the appeal, a September 2016 rating decision granted service connection for sciatic nerve (left lower extremity), with an evaluation of 10 percent from December 31, 2012 and an evaluation of 20 percent from September 8, 2016. This decision noted that service connection for the sciatic nerve on the left lower extremity was granted, on the basis that such is associated with the back disability on appeal. The Board takes jurisdiction of the issue as such is part and parcel to the increased rating claim on appeal. The Board notes the Veteran previously testified in March 2010, before a retired Veterans Law Judge (VLJ). See hearing transcript of March 2010. He requested a new hearing which was held on December 2020, before the undersigned. A transcript of the hearing has been associated with the claims file. At the December 2020 Board hearing, the Veteran’s representative reiterated a clear and unmistakable (CUE) argument regarding the initial rating assigned to the Veteran’s back disability in 1989, that had been presented in a written statement in January 2018. This argument has not yet been addressed by the RO. A CUE motion must be addressed by the RO in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006). As the RO has not addressed the matter in the first instance, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 1. Entitlement to a disability rating in excess of 40 percent for post traumatic neuralgia, lumbosacral spine (back disability) The Veteran seeks a disability rating in excess of 40 percent for his back disability. At the most recent hearing, the Veteran asserted that this claim had been pending since 2004. See hearing transcript page 3. His representative also presented an argument alluding to clear and unmistakable error (CUE) pertaining to the Veteran’s initial disability rating for his back disability. See hearing transcript page 5. As previously noted, the matter of CUE was referred to the RO. Accordingly, the Board will summarize the relevant procedural history, regarding the Veteran’s back disability rating, before addressing the merits of the appeal, to include the pending claim. Procedural history: In a February 1989 rating decision, the Veteran was granted service connection for his back disability, with an evaluation of 10 percent disabling and an effective date of October 25, 1988. See rating decision of February 1989. Rating decisions dated June 1990, September 1993, and January 1996, continued the Veteran’s 10 percent disability rating for his back condition. See rating decisions of June 1990, September 1993, and January 1996. A January 1999 rating decision increased the Veteran’s back disability rating from 10 percent disabling to 20 percent disabling, with an effective date of November 19, 1998. See rating decision of January 1999. Then, in a March 2000 rating decision, the Veteran’s back disability rating was increased from 20 percent to 40 percent disabling, effective June 28, 1999. See rating decision of March 2000. This rating decision noted the Veteran’s report of shooting pains to his lower extremities. However, the decision notes that an increased in the Veteran’s service-connected disability was warranted based on his marked limitation of forward bending as well as an increase in the loss of lateral motion. In July 2000, the Veteran requested that VA re-evaluated his back disability in light of additional evidence (consisting of an MRI study). See Statement in Support of Claim dated July 2000. In a November 2000 rating decision, the Veteran’s back disability rating of 40 percent was continued. See rating decision of November 2000. In April 2001, the Veteran contacted VA and requested a status update regarding his increased rating claim. See Statement in Support of Claim dated April 2001. In June 2001, VA notified the Veteran of the November 2000 rating decision that adjudicated his increased rating claim and notified him of his appellate rights. This letter also included copy of the November 2000 rating decision and a VA form 21-4138, in case the Veteran wished to appeal the decision. Then, in August 2002, VA again sent the Veteran copy of the November 2000 rating decision and instructed the Veteran to contact VA if he wished to open another increased rating claim. No correspondence was received by VA from the Veteran following the above-mentioned letters, regarding his increased rating claim for his service connected back condition. Thus, the November 2000 rating decision is final. In May 2004, the Veteran submitted a statement where he requested an increased rating for his back disability. See statement in support of claim, signed May 2004. A November 2004 rating decision continued the Veteran’s 40 percent disability rating for his back disability. See November 2004 rating decision. In December 2004, the Veteran informed VA he had not received official notification of the decision regarding his May 2004 increased rating claim. See statement in support of claim dated December 2004. In January 2005, VA sent the Veteran a copy of the November 2004 rating decision. The Veteran did not submit any notice of disagreement regarding the November 2004 rating decision. See correspondence of January 2005. In May 2005, VA medical records were associated with the claims file, including an MRI of the lumbar spine dated February 2005. Other medical records associated with the claims file in September 2005 also contained information pertinent to the Veteran’s back disability. See medical records associated with the claims file in May 2005, and September 2005. In April 2006, VA medical records addressing the Veteran’s psychiatric disability and noting his chronic pain, and their influence on the Veteran’s ability to work was associated with the claims file. See medical record dated March 2006 and associated with the claims file in April 2006. In August 2006, the Veteran submitted a completed VA 21-8940 “Veterans Application for Increased Compensation Based on Unemployability” (TDIU). In this application, the Veteran noted that his back disability and his left lower extremity disability prevented him from securing or following any substantially gainful occupation. See TDIU application of August 2006. A January 2007 rating decision denied the Veteran’s claim for a TDIU and continued the Veteran’s 40 percent disability rating for his back disability. See January 2007 rating decision. This January 2007 rating decision noted that it pertained to the claim received by VA on April 2006. In August 2007, the Veteran submitted a written notice of disagreement (NOD) regarding the rating decision of January 2007 which addressed the back-disability evaluation of 40 percent and the TDIU denial. A Statement of the Case (SOC) was issued on May 2009 and the Veteran perfected the instant appeal in June 2009 by submitting a completed Form 9. The Veteran has consistently pursued his appeal ever since. Pending claim of 2004 A pending claim is defined as “an application, formal or informal, which has not been finally adjudicated.” See 38 C.F.R. § 3.160 (c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). Following notification of an initial review and adverse determination by the RO, a NOD must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C. § 7105. In other words, a rating decision becomes final when a notice of disagreement (NOD) is not received within the year of notification. However, exceptions apply to this rule of finality. The applicable regulation at the time the Veteran filed his claim in 2004 read that: “new and material evidence received prior to the expiration of the appeal period, […] will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” See 38 C.F.R. § 3.156 (b) (2004). Thus, under 38 C.F.R. § 3.156 (b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Thus, a claim remains open until the VA determines whether post-decision evidence received within the one-year appeal period is “new and material.” Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014); Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020). In the present case, the Veteran was notified of the adverse decision on his claim in January 2005, after he contacted VA and informed that he had not received copy of the rating decision of November 2004. Within the appeal period of 1 year, pertaining to the November 2004 rating decision, VA medical records were associated with the claims file relevant to Veteran’s claim of increased rating for his back condition. These VA medical records were not addressed by the RO and the November 2004 rating decision remained pending and did not become final. Period on appeal and applicable law As the Board has found that the November 2004 rating decision did not become final, the appeal period before the Board regarding the claim of increased rating for the Veteran’s back disability is from May 2004, forward; to include the one-year look back period. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s back disability is rated under diagnostic codes 5292-5237 and has been assigned a disability rating of 40 percent from June 28, 1999. 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. 38 C.F.R. § 4.27. The Board notes that the Veteran’s 40 percent disability rating was assigned pursuant to diagnostic code 5292, for severe limitation of motion, which was the pertinent rating criteria at the time of the March 2000 rating decision. Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome (DC 5293). 67 Fed. Reg. 54,345 (Aug. 22, 2002) and effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Effective September 2003, the new criteria for evaluating service-connected spine disabilities other than IVDS, became codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242. All disabilities considered under Diagnostic Codes 5235 to 5242 are currently evaluated under common criteria outlined in the General Rating Formula for Diseases and Injuries of the Spine. There is no longer a diagnostic code 5292 pertaining to a spine disability in the current schedule for rating disabilities. The Board will not disturb a rating in effect based on the previous regulation if it is more favorable to the Veteran. As the Veteran’s 40 percent disability rating was assigned under a more favorable rating criteria established in the applicable diagnostic code at the time of the March 2000 rating decision, the Board will limit its analysis to determining whether a higher disability rating, in excess of 40 percent, is warranted for the Veteran’s back disability at any time during the appeal period, based on the current diagnostic codes and applicable rating criteria. As the present appeal stems from an increased rating claim received by VA in May 2004, only the amended (i.e. current) diagnostic codes apply when evaluating the severity of the Veteran’s back disability throughout the appeal period. Diagnostic code 5237 corresponds to lumbosacral strains and is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Under this general rating formula: A 10 percent rating requires forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating requires forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula. Alternatively, DC 5243 provides a rating for Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under DC 5243, a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. DC 5243 provides the following Notes: Note (1): An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Thus, based on the above, in order for the Veteran’s back disability to warrant a disability rating in excess of 40 percent, under the current rating criteria, the evidence would need to show that the Veteran currently has, or has had at any time during the appeal period, unfavorable ankylosis of the entire thoracolumbar spine- which would warrant a 50 percent disability rating under the general rating formula for diseases or injuries of the spine. Alternatively, a rating in excess of 40 percent would be warranted under DC 5243 if the evidence shows that the Veteran has been prescribed bed rest by a physician for an incapacitating episode lasting more than 6 weeks for any 12 month period during the appeal period; which would warrant a 60 percent disability rating. It is important to note that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a , Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Throughout the appeal period, the Veteran has been examined by VA several times for his back disability. In September 2004, the Veteran was administered a VA examination for his back disability. The examiner noted that no ankylosis was appreciated nor any fixed deformity. His range of motion was noted as forward flexion from 0 to 45 degrees, extension from 0 to 5 degrees, lateral flexion to the left from 0 to 25 degrees, right lateral flexion from 0 to 20 degrees, left lateral rotation from 0 to 25 degrees and right lateral rotation from 0 to 20 degrees. See VA examination of September 2004. An MRI dated February 2005, was associated with the claims file in May 2005. The MRI results noted degenerative changes in the lumbar spine, a hemangioma in the L2 vertebral body, a disk bulge or protrusion, and mild spinal stenosis. See MRI dated February 2005, was associated with the claims file in May 2005. No ankylosis was noted. In August 2006, the Veteran was administered a General VA examination. The Veteran’s lumbar spine disability was noted and his range of motion was noted as forward flexion restricted to 70 degrees due to pain, extension to 0 degrees, lateral flexion to 20 degrees bilaterally, rotation restricted to 15 degrees to the left and to 10 degrees to the right. No ankylosis was noted. See General VA examination of August 2006. In January 2013, the Veteran wad administered a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (Back DBQ). Diagnoses of annular tear at the L4-L5 with stenosis, mild moderate canal stenosis at the L2-L3 level, and multilevel b/l facet arthropathy were noted. Initial range of motion testing revealed forward flexion limited to 40 degrees, extension limited to 0 degrees, bilateral lateral flexion ending at 15 degrees, and bilateral rotation ending at 15 degrees. The examiner noted the Veteran did not have a diagnosis of IVDS. No ankylosis was noted. See Back DBQ of January 2013. In September 2016, the Veteran was re-administered a Back DBQ. Initial range of motion testing revealed forward flexion limited to 40 degrees, extension limited to 5 degrees, nad bilateral lateral flexion as well as bilateral lateral rotation all limited to 15 degrees. No ankylosis of the spine was noted. This examiner noted that the Veteran had IVDS but that no bed rest had been prescribed by a physician in the prior 12 months to the examination. See Back DBQ of September 2016. Other available medical records show that the Veteran has been consistently been treated with medication for his back pain but there are no notes or findings of ankylosis regarding the Veteran’s back. No physician-prescribed bed rests lasting more than 6 weeks in any 12-month period were found in the available medical records for the appeal period. No medical records showing surgical interventions pertaining to the Veteran’s back were found. Thus, based on the above, the Board finds that a disability rating in excess of 40 percent for the Veteran’s back disability is not warranted at any time during the appeal period as the preponderance of the evidence does not support the finding that the Veteran’s spine was found to be ankylosed at any time during the appeal period. Further, a disability rating in excess of 40 percent for the Veteran’s back disability is not warranted under DC 5243 for IVDS, as the evidence of record does not support the finding that the Veteran has been prescribed bed rest at any time during the appeal period by a physician for an incapacitating episode lasting more than 6 weeks during any 12-month period during the appeal period. As the preponderance of the evidence weighs heavily against the claim of an increased rating for the Veteran’s back disability, there is no doubt to be resolved, and the claim must be denied. 2. Entitlement to a separate disability rating for sciatic nerve, left lower extremity The Board has assumed jurisdiction of this matter, as it is part and parcel to the increased rating claim pertaining to the Veteran’s back disability on appeal. The Board notes that procedurally, the Veteran’s back disability rating of 40 percent was granted in a March 2000 rating decision on the basis that he had marked limitation of forward bending as well as an increase in the loss of lateral motion. Although this rating decision also noted the Veteran’s report of shooting pains to his lower extremities, it is not patently clear from the decision, that the higher disability rating was assigned on that finding but rather, the conclusory statement notes the higher rating of 40 percent to be based on the Veteran’s increased limitation of motion. See rating decision of March 2000. In the above-mentioned December 2004 Veteran’s statement, he additionally claimed service connection for lower extremities, secondary to his back. A January 2006 rating decision denied the Veteran’s claim of service connection for a bilateral lower extremity disability, claimed as pain and numbness, on the basis that no condition had been diagnosed. This rating decision also noted that the symptoms of pain and numbness would be considered along with his back disability. Subsequent decisions characterized the Veteran’s back disability as post traumatic neuralgia, lumbosacral spine, with pain and numbness radiating to the lower extremities. See generally January 2007 rating decision and VA correspondence of August 2007. Then, a September 2016 rating decision, granted service connection for sciatic nerve (left lower extremity) with an effective date of December 31, 2012. However, the most recent codesheet, dated January 2018, shows that the Veteran is only receiving compensation for his back disability characterized as post traumatic neuralgia, lumbosacral spine with pain and numbness radiating to the lower extremities. See codesheet of January 2018. A Supplemental Statement of the Case (SSOC), also dated September 2016, denied the Veteran’s claim of increased rating for his back disability in excess of 40 percent and noted that the Veteran was receiving a 20 percent disability rating for his back and a 20 percent disability rating for his sciatic nerve, which combined to 40 percent. See SSOC of September 2016. The Board further notes that prior to 2003, the rating criteria under DC 5292 only referenced limitation of motion of the lumbar spine and specified different ratings based on whether the limitation was slight, moderate or severe. Severe limitation of motion warranted a 40 percent disability rating. This specific diagnostic code 5292, did not mention anything regarding neurological symptomatology. However, the current diagnostic criteria for disabilities of the spine notes that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula. Sciatic nerve impairment is considered another type of associated neurologic abnormality and warrants a separate disability rating; notwithstanding the Veteran’s 40 percent disability rating for his back disability which was assigned in 2000 based on his limitation of motion. Thus, as the RO found that service connection for sciatic nerve of the lower left extremity was warranted in the September 2016 rating decision from December 31, 2012; the Board finds that a separate disability rating for the Veteran’s sciatic nerve disability is warranted, in addition to the Veteran’s disability rating for his service-connected back disability. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, diagnostic code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. In January 2013, the Veteran’s lower left extremity radiculopathy was characterized as severe however, the examiner only noted moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness. However, the Veteran’s deep tendon reflexes were noted as normal. See Back DBQ of January 2013, associated with the claims file in November 2013. Then in September 2016, the Veteran’s lower left extremity radiculopathy was characterized as severe, as the examiner found severe constant pain, but no intermittent pain, no paresthesias or dysesthesias and no numbness. The Veteran’s deep tendon reflexes were found hypoactive in the left lower extremity. See Back DBQ of September 2016. Thus, based on the above, the Board finds that a disability rating in excess of 10 percent for the Veteran’s left lower extremity prior to September 8, 2016 and in excess of 20 percent thereafter, is not warranted, as the evidence of record does not support the finding that the Veteran’s lower left extremity radiculopathy presented with moderate incomplete paralysis prior to September 8, 2016 nor with moderately severe incomplete paralysis thereafter. The Board notes that the Veteran’s radiculopathy was characterized as severe in the Back DBQ of 2013; however, the noted objective findings do not support a disability rating in excess of 10 percent prior to September 8, 2016. Additionally, although the Veteran’s radiculopathy was noted as severe in the September 2016 Back DBQ, the objective findings do not support a rating in excess of 20 percent from September 8, 2016. REASONS FOR REMAND 1. Entitlement to service connection for depression, to include as secondary to the Veteran’s service-connected disabilities The Veteran seeks service connection for depression, secondary to his service-connected back disabilities. At the most recent hearing, the Veteran also testified that he believes his depression to be related to his service. See hearing transcript page 10. There are some procedural difficulties with this appeal. Specifically, the Board notes its referral of this issue to the RO for adjudication, in the Board remand of January 2011. Subsequently, the RO issued a Supplemental Statement of the Case in September 2016 and a rating decision in January 2018, where the issue was addressed. Furthermore, the Veteran’s representative has included the issue of service connection for depression in the briefs presented to the Board in January 2018 and in July 2019. Finally, testimony on the matter was also accepted in the December 2020 hearing. Therefore, in light of VA’s duty to read a veteran’s filings liberally, and as the Veteran was led to believe this issue was on appeal, the Board will exercise jurisdiction over this claim. See Percy v. Shinseki, 23 Vet. App. 37, (2009). The Veteran’s medical records show that in April 2005, the Veteran had an appointment with a psychiatrist who noted possible diagnoses, to include a mood disorder associated with chronic pain syndrome. The Veteran was started on medication. See medical records for April 2005. In December 2005, the Veteran was administered a Mental Disorder (Other than PTSD and Eating Disorders) Disability Benefits Questionnaire (Mental Disorders DBQ). The examination report notes diagnoses of major depression and alcohol dependence in sustained full remission. The examiner opined that the Veteran’s depression was not caused by or a result of his service-connected condition. In favor of this opinion the examiner noted that the Veteran had only sought treatment for the condition following issues with obtaining employment in the year prior to the examination. See Mental Disorders DBQ of December 2005. The Board finds this medical opinion inadequate for adjudication purposes because the examiner relied on the absence of medical records to provide a negative nexus opinion. Medical records for March 2006 show that the Veteran was diagnosed with major depression secondary to a medical condition. Treatment notes for this date show that the Veteran struggled with chronic pain issues as well as his inability to work due to the severity of his pain syndrome. See medical record for March 2006, associated with the claims file in April 2006. In August 2006, the Veteran was administered a General Medical Examination by VA. This examination noted that the Veteran was being treated for depression, secondary to chronic pain, as well as the Veteran’s reports of chronic low back pain. See General Medical Examination for August 2006. Medical records from 2006 until January 2014, note continued treatment for a psychiatric condition. See medical records from 2006 until January 2014. In January 2014, the Veteran was seen by another psychiatrist who noted the Veteran’s history, and diagnosed him with unspecified depressive disorder in accordance with the DSM-5 and noted other disorders to rule out. The Veteran was re-started on medication, as he reported that he had ran out in November 2013. See medical records for January 2014. In August 2014, the Veteran received treatment for his psychiatric condition and the psychiatrist noted that the Veteran’s depression was related to his medical condition. See medical records for August 2014. In November 2015, the Veteran was administered a Mental Disorder (Other than PTSD and Eating Disorders) Disability Benefits Questionnaire (Mental Disorders DBQ). In this examination a diagnosis of unspecified depressive disorder was noted. See Mental Disorder DBQ of November 2015. The examiner did not provide a medical opinion on the possible etiology of the condition. In December 2017, a medical opinion, subscribed by a different examiner than the one that administered the Veteran the Mental Disorder DBQ of November 2015, was associated with the claims file. See medical opinion of December 2017. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s back disability. The examiner noted having reviewed the medical records as well as the Veteran’s history. In favor of the opinion expressed, the examiner noted, among other things, that the Veteran did not report his back disability during the 2015 examination when questioned about the reasons for his depression, and that current medical records did not show treatment for depression or any complaints for depression. Thus, she reasoned that the Veteran’s depression is less likely than not related to the Veteran’s back disability. She also opined that it is less likely than not that the Veteran’s depression is aggravated by his service-connected back disability. Further, she noted that a baseline level could be determined and noted that the Veteran had engaged in therapy for depression and anger prior to service, but that no diagnosis of depression was made during the Veteran’s military service. Thus, the baseline level of depression was zero. Additionally, as the medical records current at the time of this opinion showed that the Veteran was not being treated for depression, then his current level of depression was also zero and that there was no aggravation. See medical opinion of December 2017. The Board finds this medical opinion inadequate and assigns it low probative value as the examiner based her opinion on the absence of contemporaneous medical evidence and did not take into consideration the Veteran’s statements regarding symptomatology. No further medical records are available in the claims file. Thus, based on the above, the Board finds that the claim must be remanded for further development. Specifically, the Board notes that there is no adequate medical opinion of record that addresses the Veteran’s psychiatric condition as it relates to his service-connected back disability or his service. Further, there is evidence of record that suggests the Veteran’s depression has been at times linked to his chronic pain from his back disability, but this finding was not addressed in the above-mentioned medical opinions. Thus, a remand is necessary to obtain a new examination for the Veteran’s depression and a new medical opinion. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis is remanded. The Veteran seeks a TDIU as he contends that his service-connected disabilities render him unable to obtain and follow substantially gainful employment. See TDIU application of August 2006. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The most recent codesheet of record shows that the Veteran is only receiving compensation for his service-connected back disability, rated at 40 percent disabling, from June 28, 1999. The Veteran’s combined evaluation is 40 percent. See codesheet dated January 2018. In this decision, the Board has found that the Veteran is warranted a separate disability rating for his left lower extremity radiculopathy, which was assigned a 10 percent disability rating from December 31, 2012 and a 20 percent disability rating from September 8, 2016. See rating decision of September 2016. These ratings would make the Veteran’s combined evaluation 50 percent from December 31, 2012. See 38 C.F.R. § 4.25. Thus, the Veteran does not meet the schedular rating criteria at any time during the appeal period, including consideration of the separate disability rating for his left sciatic nerve (radiculopathy) granted herein. Where the percentage requirements for schedular TDIU are not met, TDIU may nevertheless be assigned on an extra-schedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities; however, the Board is precluded from assigning extra-schedular TDIU in the first instance. 38 C.F.R. § 4.16 (b); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The evidence of record shows that the Veteran’s back disability impacts his ability to work. For example, in the Back DBQ of January 2013, the examiner noted that the Veteran’s back disability impacted his ability to work. See Back DBQ of January 2013. Further, the examiner that subscribed the Back DBQ of September 2016 noted that the Veteran’s back disability impacted his ability to work in a physical laborious job with heavy lifting or bending. See Back DBQ of September 2016. Additionally, the Veteran’s depression has also been noted to impact his ability to work. See medical records for March 2006, associated with the claims file in April 2006. At the December 2020 hearing, the Veteran testified that he used to be a mechanic, working from 50 to 70 hours a week, but that now he is employed on a part-time basis cleaning stalls. He explained that he had to stop working as a mechanic full time because of his back and because his boss did not like him taking breaks or taking longer to finish his assigned jobs. See hearing transcript page 9. In terms of his current employment, he described working approximately 15 hours a week, and that his current employer is lenient in terms of allowing him time for breaks, as his back pain requires. See hearing transcript page 9. Thus, the Board finds that referral to the Director of Compensation Services of the issue of TDIU on an extraschedular basis (to include whether the Veteran’s employment is marginal) is warranted. The matters are REMANDED for the following actions: 1. Update existing medical records. Any and all responses, including negative responses, must be associated with the claims file. 2. Schedule the Veteran for a new VA examination regarding his depression. The examiner is asked opine: a. Whether the Veteran’s depression is caused by or aggravated beyond its natural progression by his service-connected disabilities. The examiner must opine on both causation and aggravation. If aggravation is found, the examiner must try to describe the baseline disability prior to it. b. Whether the Veteran’s depression is at least as likely as not related to his military service (direct service connection). i. The examiner is asked to address the Veteran’s statements of experiencing a traumatic event aboard the U.S.S. Stark. (See December 2020 hearing transcript, page 10 and existing medical records.) The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 3. Re-adjudicate the claim of service connection for depression, to include on a secondary basis. 4. After the preceding steps have been accomplished, and if the Veteran’s combined disability evaluation remains under the threshold for schedular TDIU consideration, please refer the matter of TDIU to the Director of Compensation Services for extraschedular consideration. 5. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.