Citation Nr: 21021829 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-01 151 DATE: April 14, 2021 ORDER Entitlement to service connection for right upper extremity cervical radiculopathy is granted. For the entire rating period on appeal beginning February 27, 2015, a 40 percent disability rating for a lumbar spine disability is granted. For the entire rating period on appeal, a rating higher than 40 percent, for a lumbar spine disability, is denied. Prior to June 22, 2018, a separate 20 percent disability rating, but not higher, for right lumbar radiculopathy, is granted. Beginning June 22, 2018, a rating higher than 20 percent for right lumbar radiculopathy is denied. Prior to June 22, 2018, a separate 20 percent disability rating, but not higher, for left lumbar radiculopathy, is granted. Beginning June 22, 2018, a rating higher than 20 percent for left lumbar radiculopathy is denied For the entire rating period on appeal, a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to June 22, 2018, is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, she has a current diagnosis of right upper extremity cervical radiculopathy due to her service-connected cervical spine disability. 2. Resolving all doubt in the Veteran’s favor, for the entire rating period on appeal, symptoms of the lumbar spine disability more nearly result in forward flexion to 30 degrees, but do not meet or more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes of at least six weeks during any 12-months period. 3. Prior to June 22, 2018, the Veteran’s lumbar spine disability resulted in neurological impairment of the right and left lower extremities that was analogous to moderate incomplete paralysis of the sciatic nerves, at worst. 4. At no time during the appellate period has the Veteran’s neurological impairment of the right and left lower extremities been productive of moderately severe incomplete paralysis of the sciatic nerves. 5. For the entire rating period on appeal, the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 6. The Veteran’s service-connected disabilities rendered her unable to secure or maintain a substantially gainful occupation; prior to this date, she was substantially and gainfully employed CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity cervical radiculopathy as secondary to the service-connected cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.310 (2020). 2. Beginning February 27, 2015, the criteria for a 40 percent rating for a lumbar spine disability are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2020). 3. For the entire rating period on appeal, the criteria for a rating higher than 40 percent for a lumbar spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5243 (2020). 4. Prior to June 22, 2018, the criteria for a separate 20 percent rating, but no higher, for right lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2020). 5. From June 22, 2018, the criteria for a rating higher than 20 percent for right lumbar radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2020). 6. Prior to June 22, 2018, the criteria for a separate 20 percent rating, but no higher, for left lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2020). 7. From June 22, 2018, the criteria for a rating higher than 20 percent for left lumbar radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2020). 8. For the entire rating period on appeal, the criteria for a 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). 9. Prior to June 22, 2018, the criteria for an award of a TDIU rating are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from December 1988 to May 1989 and on active duty from November 1990 to July 1991, August 2004 to August 2005, and December 2013 to November 2014. This appeal stems from a June 2015 rating decision. In June 2018, the Veteran testified during a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer available to participate in the appeal. A transcript of the hearing is of record. The Veteran was appropriately notified and given an opportunity to request another hearing before another VLJ. In August 2020, the Veteran responded that she did not wish to appear at another Board hearing. 38C.F.R. §20.700. In December 2018, the Board denied entitlement to a disability rating higher than 30 percent for PTSD prior to May 14, 2015, the date of the Veteran’s VA PTSD examination, and remanded the issue of a disability rating higher than 30 percent for PTSD since May 14, 2015 for a VA examination to determine the current severity of the Veteran’s psychiatric disability. In February 2020, the Court vacated that portion of the Board’s December 2018 decision that denied the Veteran’s claim for a disability rating higher than 30 percent for PTSD prior to May 14, 2015, and remanded the matter for additional development and readjudication incompliance with directives specified in a January 2020 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA. Specifically, the JMPR indicated the Board failed to provide an adequate statement of reasons or bases as to why a remand was not warranted for the period prior to May 2015, particularly in light of the Veteran’s statement that her PTSD worsened after her November 2014 deployment. The JMPR indicated that on remand the Board must review all of the facts and determine whether a remand for the entire period on appeal is warranted based on the Veteran’s report of worsening symptomatology beginning after her last deployment in November 2014. The Court did not have jurisdiction over the claim of entitlement to a disability rating higher than 30 percent for PTSD beginning May 14, 2015 because that claim had been remanded by the Board. In October 2020, the Board remanded the issue of a rating higher than 30 percent for PTSD prior to May 14, 2015, finding that an examination was necessary adjudicate the entire rating period on appeal. In the interim, the RO also returned to the Board the issues of entitlement to a rating higher than 20 percent and 40 percent for a lumbar spine disability, service connection for right upper extremity cervical radiculopathy, and entitlement to a TDIU. These issues have been merged with the appeal of increased rating for PTSD. The case has since returned to the Board for further appellate consideration. Service Connection for Right Cervical Radiculopathy Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2018). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran asserts that she has right upper extremity cervical radiculopathy secondary to her service-connected cervical spine disability. The Veteran is already service connected for left upper extremity cervical radiculopathy. Generally, to establish service connection there must be evidence of a current diagnosis of a disability. The Board may consider pain a current disability; however, to be considered as such, the pain must rise to the level of functional impairment of earning capacity. See 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Wait v. Wilkie, the Court addressed the question of what is necessary for a claimant to demonstrate that his or her pain or other symptoms cause “functional impairment of earning capacity,” and therefore meet the current disability requirement under Saunders. Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609 (Aug. 26, 2020). The Court held that, to meet the current disability requirement under Saunders, “there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.” The Court clarified that the Board must make the factual determination whether the appellant’s manifestations rise to the level of a functional impairment in earning capacity. According to November 2011 VA treatment records, there was no electrophysiological evidence of cervical radiculopathy. In June 2015, the Veteran complained only of left upper extremity cervical radiculopathy. During a September 2015 VA cervical spine examination, the right upper extremity was normal with no evidence of radiculopathy. However, during a September 2017 VA peripheral nerves conditions examination, it was noted that the Veteran had moderate constant pain, paresthesias, and numbness in the right upper extremity. Sensory examination was normal, and the examiner did not render a diagnosis of radiculopathy. During a cervical examination at the same time, the examiner checked the box for no diagnosis of cervical radiculopathy. During an October 2020 cervical spine compensation examination, the examiner indicated that the Veteran had no current diagnosis of right or left cervical radiculopathy despite the confirmed diagnosis of her already service-connected left upper extremity cervical radiculopathy. Instead, the examiner indicated that the Veteran had bilateral carpal tunnel syndrome. During the pendency of the appeal, the Veteran complained of bilateral upper extremity pain that interfered with her work as a mail carrier. On review of all the evidence, the Board resolves all doubt in the Veteran’s favor in finding that she has a current diagnosis of a right upper extremity cervical radiculopathy. Notably, despite the VA examiner’s conclusion that objective evidence of radiculopathy was not shown, the Veteran complained of moderate symptoms that interfered with her ability to carry her job and activities of daily living. The Board concludes that such caused impairment of earning capacity to fulfill the element of a current diagnosis. As the Veteran is already service connected for a cervical spine disability and left upper extremity radiculopathy, the Board finds that the manifestation of pain, paresthesias, and numbness of the right upper extremity resulted from her cervical spine disability. Service connection on a secondary basis is therefore granted. Increased Rating Claims – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine Disability – Rating Criteria When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 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). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as 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. Id. at Note (1). On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, including DC 5242 for degenerative arthritis and DC 5243 for IVDS, went into effect.  See 85 Fed. Reg. 76460 (November 30, 2020).  The amendment to DC 5242 clarifies that the rating criteria is to be applied for other than IVDS.  The amendment to DC 5243 for IVDS specifies that it is to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. Lumbar Spine Disability – Rating Analysis During the rating period on appeal, the Veteran’s lumbar spine disability is rated as 20 percent disabling prior to June 22, 2018, a 40 percent disabling from June 22, 2018 to October 6, 2020, and 20 percent thereafter. On review, the Board finds that the criteria for a 40 percent rating, but not higher, is approximated for the entire rating period on appeal. According to June 2015 VA treatment records, range of motion testing was not recorded in degrees, but the medical professional noted that the assessment revealed pain with forward flexion of the lumbar spine. In July 2015, the Veteran complained of a slight increase in her low back pain. In September 2015, the Veteran underwent a VA back examination, at which time the examiner confirmed a diagnosis of DDD with L2-L3 disc bulge. The Veteran reported back pain that present at all times with daily bilateral leg pain. The pain was described as 7 to 8 out of 10 in severity, which aggravated when she tried to do things around the house, including simple chores. She denied having flare-ups, but functional loss/impairment was described as inability to do a lot of bending and twisting and limitation on lifting. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 45 degrees; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 15 degrees; and, lateral rotation to 15 degrees, bilaterally. Range of motion itself contributed to functional loss due to difficulty reaching down or bending to pick objects up. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight-bearing. There was evidence of mild tenderness over paralumbar area. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that the Veteran was not examined immediately after repetitive use over time and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner added that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no evidence of spasm/guarding and the localized tenderness did not result in abnormal gait/spinal contour. Additional factors contributing to the disability included less movement than normal, disturbance of locomotion, and interference with sitting and standing. There was no ankylosis or IVDS. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. Straight leg raising rest was negative, bilaterally. The examiner indicated that the Veteran had symptoms of radiculopathy that included mild paresthesias, bilaterally but then concluded that the lower extremity was not affected, bilaterally. The examiner explained that there was no objective evidence of radiculopathy. There were no other neurologic abnormalities and the Veteran did not use any assistive devices. According to November 2015 VA treatment records, the Veteran reported ongoing trouble with her lower back despite the treatment she received at the VA. She indicated that her lower back worsened in severity over the last few days. Straight leg raiding test was negative, bilaterally, but elevating the left leg triggered a significant increase in lower back pain and the right leg also caused increased pain. Lumbar spine forward flexion felt “okay” and extension was painful. In December 2016, the Veteran underwent an additional VA back examination, at which time the examiner rendered diagnoses of DDD with L2-L3 disc bulge and spinal stenosis. The Veteran reported chronic low back pain that was 6 to 7 out of 10 in severity. The pain was described as sharp and radiating down both her lower extremities. She also complained of tingling and numbness in both extremities. The Veteran reported having flare-ups and functional loss/impairment was described as lifting limited to 10 pounds, inability to bend, twist, kneel, sit, or drive more than 30 minutes, and inability to walk for an extended period of time. Upon physical examination of the lumbar spine, range of motion revealed forward flexion to 60 degrees; extension to 10 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 15 degrees, bilaterally. Localized tenderness prevented lifting of more than 10 pounds. There was no additional loss of function or range of motion after repetitive use testing. The examiner indicated that the Veteran was not examined immediately after repetitive use over time and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner added that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Regarding flare-ups, the examiner indicated that the examination was conducted during a flare-up and that pain and lack of endurance significantly limited functional ability with flare-ups; however, the examiner recorded the same range of motion as that of the initial range of motion above. There was evidence of muscle spasm and guarding that did not result in abnormal gait/spinal contour. There was no ankylosis and IVDS did not resulted in any episodes of acute signs and symptoms that required bed rest prescribed by a physician/treatment by a physician in the previous 12 months. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising test was positive, bilaterally. The examiner noted symptoms of radiculopathy, to include severe constant pain, paresthesias, and numbness, bilaterally. The examiner concluded that the Veteran had severe radiculopathy, bilaterally. However, the examiner did not specify which nerve was affected. The Veteran used no assistive devices. During the June 2018 Board hearing, the Veteran testified that she could not perform many of her normal duties, such as cleaning the house, gardening, or holding her grandbabies. She could not sit or stand for a long time and could not walk for long distances. In July 2018, the Veteran underwent a VA compensation examination of the spine, at which time the examiner confirmed diagnoses of arthritis of the spine and IVDS. The Veteran reported pain at rest that was 5 to 6 out of 10 in severity and 10 out of 10 with activity. The pain radiated down both legs and feet. She took Flexeril every night, Naproxen Sodium daily, and received chiropractic care. She reported having flare-ups, which were described as pain that is excruciating at times after repeated use. Flare-ups occurred daily, were moderately-severe, and lasted most of the day. Functional loss/impairment was described as inability to hold her grandchildren and the need to constantly change positions to relieve pain. She could also not twist, bend, and pick things/carry them. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 25 degrees; extension to 0 degrees; lateral flexion to 10 degrees, bilaterally; and lateral rotation to 5 degrees, bilaterally. Range of motion itself contributed to functional loss due to decreased ability to walk, sit, stand, lift, carry, push, pull, and run. The examiner noted that the Veteran did not allow measurement of extension because she was afraid of pain. She also did not want to complete repetitive use testing for the same reason. Pain was noted on examination and contributed to functional loss. The pain was mild in the upper lumbar spine and worsened from L3-S1 to moderate. The examiner indicated that the Veteran was not examined immediately after repetitive use over time and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted the same regarding flare-ups and concluded that it was not possible to estimate, without resorting to mere speculation, any additional degree of loss of motion under such conditions because there was no conceptual or empirical basis for making such determinations without observing the Veteran under these conditions. Guarding/muscle spasm did not result in abnormal gait/spinal contour. There was no ankylosis and IVDS did not resulted in any episodes of acute signs and symptoms that required bed rest prescribed by a physician/treatment by a physician in the previous 12 months. Muscle strength testing revealed active movement against some resistance (4/5), bilaterally, and was normal (5/5) for great toe extension, bilaterally with no evidence of muscle atrophy. Reflex examination was hypoactive (1+) for both knees and normal for both ankles. Sensory examination as normal for the upper anterior thigh and thigh/knee and decreased in the lower leg/ankle and foot/toes, bilaterally. Straight leg raising test was negative, bilaterally. The examiner identified radiculopathy symptoms, to include mild constant and intermittent pain, paresthesias, and numbness for the left lower extremity and mild constant and intermittent pain, moderate paresthesias, and mild numbness in the right lower extremity. The examiner concluded that the Veteran’s lumbar radiculopathy resulted in moderate incomplete paralysis of the sciatic nerve, bilaterally. The Veteran used no assistive devices. According to September 2018 VA treatment records there was a worsening of the arthritis and narrowing of the spinal canal in the lumbar spine. The back also had “pieces of disc” that have popped out and were pinching a nerve on each side. In October 2020, the Veteran underwent an additional back compensation examination, at which time the examiner confirmed diagnoses of arthritis of the spine and IVDS. The Veteran reported worsening of her symptoms with sciatica. The Veteran did not report having flare-ups and functional loss/impairment was described as inability to stand for more than 10 minutes without pain, inability to sit for more than 20 minutes without pain, inability to walk further than 3 to 4 blocks, and inability to run or lift more than 10 pounds. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 60 degrees; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 10 degrees; right lateral rotation to 10 degrees; and, left lateral rotation to 15 degrees. Range of motion itself contributed to functional loss due to decreased ability to walk, run, sit, stand, bend, twist, lift, and climb. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing and mild pain on palpation of the left lumbar spine soft tissue. There was no additional loss of function or range of motion after repetitive use testing. Although the examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time, it was estimated that after repetitive use, there will be an additional 5-degree loss in range of motion throughout. Factors contributing to the disability included disturbance of locomotion and interference with sitting, standing, and lifting. There was no ankylosis and IVDS did not resulted in any episodes of acute signs and symptoms that required bed rest prescribed by a physician/treatment by a physician in the previous 12 months. Muscle strength testing revealed active movement against some resistance (4/5), bilaterally, and was normal (5/5) for great toe extension, bilaterally with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout and straight leg raising test was negative, bilaterally. The examiner indicated that symptoms of radiculopathy included mild intermittent pain, paresthesias, and numbness, and concluded that the Veteran radiculopathy was analogous to moderate incomplete of the sciatic nerve, bilaterally. The Veteran used no assistive devices. On review, resolving all doubt in the Veteran’s favor, the Board finds that the criteria for a 40 percent rating, but not higher, are approximated for the entire rating period on appeal. In so finding, the Board notes that with the exception of the 2016 VA examination report, forward flexion of the spine was limited to 45 degrees or less. The Board finds that under the facts of this case, when taking into consideration the Veteran’s competent reports of flare-ups, a 40 percent rating is warranted. Nevertheless, a rating higher than 40 percent is not warranted. Notably, there is no diagnosis of unfavorable ankylosis of the entire thoracolumbar spine to warrant the next-higher 50 percent rating under the General Rating Formula. Moreover, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). A rating greater than 40 percent based on the DeLuca factors is not for consideration here. Finally, the objective medical evidence does not show that the Veteran has had any incapacitating episodes of IVDS that required bed rest prescribed by a physician; therefore, a higher rating under the IVDS formula is not warranted. Additionally, there is no evidence of disc herniation, and as such, the threshold requirement for application of DC 5243 under the 2021 amended rating criteria is not satisfied. In sum, the Board awards a 40 percent rating, but not higher, for the entire rating period on appeal. Associated Neurological Impairment In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” See Spellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Here, the Veteran is in receipt of a 20 percent rating for each lower extremity lumbar radiculopathy beginning June 22, 2018. On review, the Board does not find evidence to support the assignment of ratings higher than those already assigned above. However, the Board finds that for the entire rating period on appeal prior to June 22, 2018, a 20 percent rating is warranted for each lower extremity lumbar radiculopathy. However, neither the medical nor lay evidence suggested that the lumbar radiculopathy was moderately severe at any point during the pendency of the appeal. Although the 2016 examination report showed severe symptoms, at the time muscle strength, reflex, and sensory examinations were normal. In other words, the involvement was wholly sensory, which does not allow the assignment of a rating higher than 20 percent. In sum, the Board assigns a separate 20 percent rating for a right lumbar radiculopathy and a separate 20 percent rating for left lumbar radiculopathy prior to June 22, 2018. The Board further finds that the already assigned 20 percent rating for bilateral lumbar radiculopathy from June 22, 2018, is proper; a rating higher than 20 percent is not warranted. PTSD – Rating Criteria The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted if the evidence establishes there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. The increased rating claim for the acquired psychiatric disorder was pending prior to August 4, 2014 and this specific appeal was certified to the Board prior to August 2014, and as such, both the DSM-IV and DSM-V apply. Nevertheless, because of the Court’s emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to psychiatric disorders, in this decision, the Board will place no reliance on GAF scores for rating this Veteran’s psychiatric disorder. PTSD – Rating Analysis During the rating period on appeal, the Veteran’s PTSD is rated as 30 percent disabling prior to December 4, 2020, and 50 percent thereafter. On review, the Board finds that a 70 percent rating, but not higher, is warranted for the entire rating period on appeal. In June 2015, the Veteran underwent a PTSD compensation examination, at which time a diagnosis of PTSD was confirmed. The examiner simply noted no significant changes since last examination and that the Veteran reported continued mood disorder and anxiety. The Veteran reported marital issues with “lots of distrust” and that she was estranged from her mother. The examiner identified symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; and, difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner concluded that the PTSD resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Board notes that the previous examination, which the 2015 examiner referred to as the last examination, was in May 2013. During this examination, the examiner concluded that the Veteran had no current diagnosis of a psychiatric disorder. In terms of social impairment, it was noted that the Veteran was estranged from her mother and siblings but had a good relationship with her three sons. She also had friends at work and was engaged to be married. In terms of occupational impairment, it was noted that the Veteran continued to work as a mail carrier in the post office. The Veteran stated that work was “alright” but that she suffered from back pain. She added that her work with the National Guard improved due to a change in leadership. According to June 2015 VA treatment records, the Veteran was casually dressed and had normal speech. Her mood was euthymic and affect normal. There was no evidence of delusions or hallucinations. She did not report any suicidal or homicidal ideation. There were no obsessions or compulsions noted. Insight, judgment, and impulse control were adequate. Attention and concentration were fair and memory intact. The Veteran reported problems with anger and marital issues, indicating that her husband was talking about getting a divorce. During the June 2018 Board hearing, the Veteran testified that she had nightmares, chronic sleep impairment, irritability, and did not like being around a lot of people. She indicated that the post office let her go, which added to her mental anguish. She added that she alienated herself from friends and that her PTSD caused issues with her marriage. In October 2020, the Veteran underwent an additional PTSD compensation examination, at which time the examiner confirmed a diagnosis of PTSD. In terms of social impairment, the Veteran reported having a good relationship with her children and that she got divorced a year earlier after six years of marriage. She noted that she had anger issues that impacted her family relationships and having anxiety and hypervigilance. In terms of occupational impairment, the Veteran reported that she had been working full time at the department of social service up until a month prior to the examination. She quit the job because it interfered with her ability to transport her son to school. She described experiencing significant frustration at work but did not identify any specific work impairment related to her mental health issues. She added that she was actively looking for a work at the time of the examination. Since her last examination, she completed her degree in sociology. The examiner identified PTSD symptoms of depressed mood, anxiety, and panic attacks that occur weekly or less often. The examiner noted that the Veteran was dressed appropriately and had no problems with grooming or hygiene. She was fully oriented. Affect was mildly irritable. Memory was intact and speech was normal. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In December 2020, the Veteran underwent an additional PTSD compensation examination, at which time the examiner confirmed a diagnosis of PTSD. In terms of social impairment, it was noted that the Veteran was married on three occasions, twice to the same person, with another brief marriage to another person that also ended in a divorce. She had four children, one who passed away at age 14. In terms of occupational impairment, it was noted that the Veteran was unemployed. The examiner identified PTSD symptoms of depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss; flattened affect; speech intermittently illogical, obscure, or irrelevant; impairment judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; and, impaired impulse control. The Veteran fully oriented. The examiner opined that the PTSD resulted in occupational and social impairment with deficiencies in most areas based on her speech being intermittently illogical, obscure, or irrelevant, impaired impulse control, difficulty in adapting top stressful circumstances, and inability to establish and maintain effective relationships. On review, the Board finds that a 70 percent rating is warranted for the entire rating period on appeal. Although the findings in the examiners prior to the 2020 VA examination reports concluded that the PTSD resulted in occupational and social impairment warranting only a 10 and 30 percent rating, all examination reports described symptoms of difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Notably, the Veteran had no friends throughout the pendency of the appeal and was unable to maintain his marriages. She had no other meaningful relationships. In addition, while the Veteran was able to hold a job until June 2015, she worked alone as a mail carrier and when on active/inactive duty for training with the National Guards reported having problems with others. The Board concludes that these symptoms are overall contemplated by the criteria for a 70 percent rating. However, a rating higher than 70 percent is not warranted at any point during the pendency of the appeal. In terms of occupational impairment, the Board specifically considered evidence suggestive that that the Veteran’s PTSD impacted her ability to work; however, despite these difficulties, the Veteran was able to obtain gainful occupation until June 2015, which suggests that there was no total occupational impairment. Furthermore, the Board grants entitlement to a TDIU following the Veteran’s last day of work. In addition, the Veteran has not been totally socially and occupationally impaired due to the PTSD. She was found capable of managing her own financial affairs and appeared fully oriented throughout the pendency of the appeal. On mental status examinations, she always presented as adequately dressed and groomed and as such there is no evidence of neglect in hygiene. There is also no evidence of delusions or hallucinations at any time during the pendency of the appeal. Moreover, although his PTSD results in social impairment, such impairment is not considered “total.” As discussed above, despite his difficulties, she has continued to maintain at least some relationships with her family members. Total occupational and social impairment generally requires symptoms severe enough to severely distort the individual’s perception of reality, which is not shown by the record. Overall, the Veteran’s psychiatric symptoms do not equate in severity, frequency, or duration to total occupational and social impairment, nor have the symptoms demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. Additionally, the identified PTSD symptoms of chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; and impaired impulse control, are properly contemplated by the currently assigned 70 percent disability rating. In summary, the Board finds that a 70 percent disability rating, but not higher, is warranted for the Veteran’s PTSD for the entire rating period on appeal. Entitlement to a TDIU Prior to June 22, 2018 The Court has held that a request for TDIU is part and parcel of a higher rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the medical evidence suggests that he was unable to maintain gainful occupation as a result of his service connection disabilities. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice, 22 Vet. App. at 452. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran met the criteria for consideration of a TDIU rating on a schedular basis for the entire rating period on appeal. 38 C.F.R. §§ 4.16(a), 4.25. The question remains, however, whether the Veteran has been precluded from obtaining or maintaining a substantially gainful occupation as a result of the service-connected disabilities. Here, the Veteran reported that she last worked full-time on June 3, 2015. Already during the September 2015 VA back examination, the examiner indicated that as a result of the Veteran’s back disability, standing was limited to 5 minutes, sitting was limited to half hour, driving to 2 hours with a break, walking restricted to about 15 minutes, and it prevented her from running. In addition, the PTSD examination at the time indicated that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting. (Continued on the next page)   On review, the Board notes that although the Veteran was able to complete a degree in sociology, her only work experience was as a mail carrier as well as some periods of active duty for training with the National Guard. There is no indication that she held any other job in any other profession. As discussed in more detail above regarding the lumbar spine disability and PTSD, the Veteran was unable to maintain her employment as a mail carrier solely due to her service-connected physical disabilities and mental disorder. Finally, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.