Citation Nr: 21023343 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-12 226 DATE: April 20, 2021 ORDER Entitlement to an initial disability rating greater than 50 percent for a migraine headache disability is denied. Entitlement to an initial disability rating greater than 70 percent for an acquired psychiatric disability is denied. Entitlement to an initial disability rating greater than 10 percent for thoracolumbar spine degenerative joint disease prior to November 9, 2015, and a staged initial rating greater than 40 percent thereafter, is denied. A separate 10 percent rating for left lower extremity radiculopathy is granted. Entitlement to an effective date prior to prior to July 14, 2015, for the grant of service connection for a migraine headache disability, is denied. Entitlement to an effective date prior to March 19, 2013, for the grant of service connection for an acquired psychiatric disability, is denied. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) from March 19, 2013, through December 16, 2018, is granted. FINDINGS OF FACT 1. The Veteran’s migraine headache disability is manifested by very frequent completely prostrating and prolonged attacks of headache pain productive of severe economic inadaptability; the schedular diagnostic criteria encompass all symptoms and related functional impairment of his migraine headaches disability shown during the rating period considered. 2. Since the initial grant of service connection, the Veteran’s depressive disorder has been manifested by symptoms productive of functional impairment no worse than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. Prior to November 9, 2015, the Veteran’s thoracolumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 70 degrees, combined range of motion of the thoracolumbar spine to 205 degrees, and no evidence of muscle spasm or guarding severe enough to result in abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. From November 9, 2015, the Veteran’s thoracolumbar spine disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 6 weeks during the prior 12-month period. 5. The weight of the probative evidence of record demonstrates that the Veteran’s thoracolumbar spine disability produces a mild left lower extremity radiculopathy. 6. On March 19, 2014, the Veteran filed a formal claim seeking service connection for an acquired psychiatric disorder and a headache disorder. 7. The evidence of record does not show that a formal or informal claim for service connection for a psychiatric disorder was received prior to the March 19, 2014, claim. 8. Entitlement to service connection for an acquired psychiatric disorder arose on September 20, 2016. 9. A July 2, 2014, rating decision denied service connection for a headache disorder and notice of that rating decision was sent to the Veteran that same month. The Veteran did not appeal the July 2, 2014, rating decision or submit new and material evidence within the one-year appeal period of that decision. 10. On July 14, 2015, the Veteran filed a claim to reopen entitlement to service connection for a headache disorder. 11. The evidence of record does not show that a claim to reopen the claim for entitlement to service connection for a headache disorder was received subsequent to the July 2014 final rating decision and prior to the July 14, 2015, claim to reopen. 12. The evidence shows that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation consistent with his education and prior occupational history beginning March 19, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 50 percent for a migraine headache disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The criteria for an initial disability rating greater than 70 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 3. Prior to November 9, 2015, the criteria for an initial increased rating greater than 10 percent for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71(a) Diagnostic Codes 5237, 5242. 4. From November 9, 2015, the criteria for an increased rating greater than 40 percent for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71(a) Diagnostic Codes 5237, 5242. 5. The criteria for a separate 10 percent evaluation for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to an effective date earlier than March 19, 2013, for the award of service connection for depression have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400. 7. The criteria for entitlement to an effective date earlier than July 14, 2015, for the award of service connection for a migraine headache disorder have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400. 8. Resolving reasonable doubt in favor of the Veteran, the criteria for the assignment of a TDIU were met beginning March 19, 2013. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from April 1979 to April 1983. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. In an October 2018 decision, the Board found that the issue of entitlement to a TDIU was raised by the record, based upon a September 2016 private medical opinion. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue was remanded by the Board at that time. In an April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), effective December 17, 2018. In a June 2020 decision, the Board remanded the claim for entitlement to TDIU prior to December 17, 2018, to the AOJ for additional development. In October 2020, while the issue was pending at the AOJ, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) to the April 2020 rating decision regarding his claim for entitlement to an earlier effective date for TDIU. Although the October 2020 VA Form 10182 was a timely Notice of Disagreement to the April 2020 rating decision, the Board maintains jurisdiction of the Veteran’s claim for entitlement to TDIU prior to December 17, 2018, under the Legacy Appeals System because the initial claim for entitlement to TDIU was raised in conjunction with then-pending claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating greater than 50 percent for a migraine headache disability Service connection for a migraine headache disability was granted in an October 2018 Board decision. A November 2018 rating decision effectuated the grant of service connection, and an initial disability rating of 50 percent was assigned, effective July 14, 2015, under 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran contends that an initial disability rating greater than 50 percent is warranted. Under Diagnostic Code 8100, a maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran is currently in receipt of the maximum schedular rating for migraine headaches under Diagnostic Code 8100, and a higher rating is not possible under this diagnostic code. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. As the maximum schedular rating for migraine headaches under Diagnostic Code 8100 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for a disability rating higher than 50 percent for migraine headaches must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Nonetheless, in exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The U.S. Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also See Yancy v. McDonald, 27 Vet. App. 484 (2016) (the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). In this case, the Board finds that the evidence in support of the claim reasonably raise the issue of entitlement to an extraschedular rating. With respect to the first prong of Thun, however, the evidence in this case does not show such an exceptional disability picture that renders the available schedular evaluations for the service-connected headaches inadequate. A comparison between the symptomatology of the Veteran’s migraine headaches and the rating criteria reasonably describe his disability level and symptomatology. The medical and lay evidence before the Board, including an April 2014 VA examination, a September 2017 private DBQ, VA treatment records, records from the Social Security Administration (SSA), and the Veteran’s lay assertions throughout the pendency of the appeal establish that he experienced constant headaches, pulsating or throbbing head pain, vomiting, loss of appetite, weight loss, sensitivity to light, sensitivity to sound, changes in vision, sensory changes, disturbed concentration, increased pain with physical activity, and dizziness. The Veteran also experienced very frequent and prostrating attacks of migraine and non-migraine headache pain. He is shown to have experienced prostrating attacks of migraine and non-migraine headache pain more frequently than once per month. The Veteran reported that he could not work due to pain in his neck which caused headaches, and that he would be required to miss work or leave work early three or more days per month due to migraine headaches. These manifestations, including “severe economic inadaptability” are specifically contemplated in the schedular criteria pertaining to migraine headaches. As noted above, a 50 percent disability rating is currently in effect, which contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence does not establish that the schedular rating criteria are inadequate to describe the severity and symptoms of the Veteran’s migraine headache disability. Thus, the Veteran’s reports of severe impairment to occupational functioning are contemplated by the schedular criteria under Diagnostic Code 8100. The Board has determined that referral is not warranted in this case, as the first element of the Thun analysis is not satisfied, and it therefore need not address the second and third elements. See Doucette, 28 Vet. App. 366 ; see also Yancy at 494 (“Although the first and second Thun elements are interrelated, they ‘involve separate and distinct analysis,’ and ‘[i]f either element is not met, then referral for extraschedular consideration is not appropriate.’“). 2. Entitlement to an initial disability rating greater than 70 percent for an acquired psychiatric disability The Veteran contends that an initial disability rating greater than 70 percent is warranted for depression. In an October 2018 decision, the Board granted service connection for depression. A November 2018 rating decision effectuated the award of service connection for depression, and a 70 percent disability rating was assigned, effective March 19, 2013, under 38 C.F.R. § 4.130, Diagnostic Code 9434. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] 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 under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. For example, “in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Thus, assessing whether a 70 percent evaluation is warranted requires a two-part analysis: “The... regulation contemplates[: (1) ] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation [; and (2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas.” Id. at 118. Pursuant to Diagnostic Code 9434, depressive disorder is rated 70 percent disabling when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A maximum 100 percent evaluation is for application when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. A September 2016 private psychiatric DBQ from R.W., Psy.D., notes the Veteran’s symptoms of depressed mood; anxiety; suspiciousness; panic attacks weekly or less often; near-continuous panic or depression affecting the ability to function; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; speech intermittently illogical, obscure, or irrelevant; difficulty understanding complex commands; impaired judgment and abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty adapting to stressful circumstances; inability to establish and maintain effective work and social relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living. The examiner also noted that the Veteran’s symptoms included psychomotor agitation or retardation; intense anxiety episodes; occasional nightmares and obsessional rituals; diminished interest or pleasure in normal activities; flat affect; lack of motivation; low energy level; chronic fatigue; poor concentration; feelings of hopelessness; suicidal and homicidal ideation; and high risk behaviors. The Veteran reported that he was in a relationship with his girlfriend of six years, but denied having much of a social life. He explained that he used to be a musician and enjoyed playing and listening to music, but that he had lost his motivation for those activities. He also indicated that he only showered and groomed himself once per month. He noted that he stopped working in 2013 following a motor vehicle accident. The examiner diagnosed depressive disorder and opined that the Veteran’s psychiatric disorder prevented him from sustaining gainful employment. The examiner also opined that the Veteran’s depression resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. After a detailed review of the claims file, the Board concludes that the preponderance of the evidence is against an initial rating greater than 70 percent for depressive disorder. The Veteran’s 70 percent rating contemplates functional impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. The preponderance of the evidence is against a finding that the Veteran’s depressive disorder is manifested by symptoms warranting a 100 percent evaluation, as the evidence does not show functional impairment comparable to total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9434; Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. There is no evidence showing memory loss for the names of close relatives, own occupation, or own name; no evidence that the Veteran was in persistent danger of hurting himself or others; no evidence of inability to perform the activities of daily living; and no evidence of disorientation to time or place. Although the September 2016 examination notes that the Veteran experienced persistent delusions or hallucinations and gross impairment in thought processes or communication, the examiner did not provide any additional details of the reported delusions, hallucinations, or impairment in thought processes. Further, the September 2016 examiner concluded that the Veteran’s depression resulted in no more than occupational and social impairment with deficiencies in most areas. Additionally, the evidence does not show that the Veteran experienced other symptoms of a similar severity, frequency, or duration throughout the appeal period. Rather, the Veteran’s symptoms are all reasonably contemplated by the rating criteria for a 70 percent or lower disability rating. Although the September 2016 examiner opined that the Veteran’s depressive disorder symptoms resulted in inability to sustain gainful employment, suggesting total occupational impairment, the evidence does not show total impairment of social functioning as the result of the depressive disorder. In that regard, the Veteran reported that he was in a relationship and lived with his girlfriend of six years. The Board acknowledges that the Veteran’s depressive disorder has caused social impairment to the extent that the Veteran has limited friendships and avoids social interactions and gatherings; however, his ability to maintain a relationship with his girlfriend for the past six years demonstrates that his social impairment is not total. While the Board recognizes the significant impact of the Veteran’s depressive disorder on his social and occupational functioning, the weight of the probative evidence suggests that this impairment was less than total. As noted above, the September 2016 examiner found the Veteran’s depressive disorder resulted in no more than occupational and social impairment with deficiencies in most areas. Although the Veteran demonstrates some of the symptoms contemplated in a 100 percent disability rating, the Board concludes that the Veteran’s depressive disorder more nearly approximates the requirements for a 70 percent evaluation and does not more nearly approximate a 100 percent rating. Accordingly, an initial rating greater than 70 percent for depressive disorder is not warranted. As the preponderance of the evidence is against a rating in excess of 70 percent from, the benefit of the doubt rule is not for application in resolution of the matter on appeal. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial rating greater than 10 percent for thoracolumbar spine degenerative joint disease prior to November 9, 2015, and a staged initial rating greater than 40 percent thereafter Service connection for thoracolumbar spine degenerative joint disease (low back disability) was awarded in a May 2014 rating decision, and a 10 percent disability rating was assigned, effective March 19, 2013, under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. In a February 2016 rating decision, the AOJ awarded a 40 percent disability rating from November 9, 2015. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.20. Diagnostic Codes 5242 and 5237 provide that degenerative arthritis of the spine or lumbosacral strain are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. The General Rating Formula provides that a 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula. A 50 percent disability evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine, and a maximum 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). In applying these regulations, VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), a maximum 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board notes that, effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to clarify that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. As the regulations, as amended in February 2021, make the definition of incapacitating episodes even more restrictive than the former criteria, the Board will evaluate the thoracolumbar spine disability under the former, more liberal, criteria. After thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the assignment of ratings higher than 10 percent prior to November 9, 2015, and greater than 40 percent from November 9, 2015, for the thoracolumbar spine disability. Prior to November 9, 2015, an April 2014 VA examination reflects that the Veteran reported low back pain with flare-ups of severe pain. On physical examination, there was range of motion of the thoracolumbar spine with forward flexion to 70 degrees with no objective evidence of pain; extension to 15 degrees with no evidence of pain; right and left lateral flexion to 30 degrees with no evidence of pain; and right and left lateral rotation to 30 degrees with no evidence of pain. The Veteran was unable to perform repetitive-use testing with three repetitions due to headache pain. The examiner noted that the Veteran had functional loss or impairment after repetitive use due to less movement than normal and headache with movement of the spine. There was no evidence of localized tenderness or pain to palpation, guarding, or muscle spasm. Muscle strength testing revealed decreased strength in the bilateral hips, knees, ankles, and great toes. There was muscle atrophy in the upper and lower extremities and chest wall consistent with alcohol abuse, and not due to the low back disability. Reflexes and sensory examination were all normal. A straight leg raising test was negative on each side, there was no evidence of radiculopathy, and there were no other neurologic abnormalities. There were no findings of IVDS. The examiner noted that the Veteran’s low back disability impacted his ability to work, as the Veteran experienced pain in the neck and dizziness when bending. The examiner also reported that the Veteran did not experience contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the thoracolumbar spine. The preponderance of the evidence does not support the assignment of a rating in excess of 10 percent for a thoracolumbar spine disability prior to November 9, 2015. Prior to November 9, 2015, the evidence demonstrates forward flexion to 70 degrees without pain. Combined range of motion of the thoracolumbar spine was limited to 165 degrees, 205 degrees with consideration of pain on limitation of motion. Also, there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. As there is no evidence showing flexion to 60 degrees or less, combined range of motion of the thoracolumbar spine limited to120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal spinal contour prior to November 9, 2015, even considering the impact of pain on limitation of motion, an increased rating greater than 10 percent is not warranted for the Veteran’s thoracolumbar spine disability prior to November 9, 2015. To the extent that the Veteran believes a higher rating is warranted, the Board places greater probative weight on the findings from the examiner who has greater expertise than the Veteran in evaluating the disabling characteristics of a thoracolumbar spine disability - including the accurate measure of motion with a goniometer. Accordingly, an increased rating greater than 10 percent is not warranted for the Veteran’s thoracolumbar spine disability prior to November 9, 2015. Nor is a rating in excess of 10 percent warranted for the Veteran’s thoracolumbar spine disability under the Formula for Rating IVDS Based on Incapacitating Episodes prior to November 9, 2015. This is so because there is no evidence of IVDS or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The April 2014 VA examiner found no evidence of IVDS. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected back disability prior to November 9, 2015. The Board acknowledges the subjective complaints of pain made prior to November 9, 2015. However, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case it does not. More specifically, there was no evidence of decreased range of motion with repetitive range of motion testing of the thoracolumbar spine or additional limitation of joint function due to pain, fatigue, weakness, lack of endurance, or incoordination during the April 2014 VA examination. In light of the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s service-connected thoracolumbar spine disability is not warranted prior to November 9, 2015 based on functional impairment. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. On VA examination in November 2015, the Veteran reported low back pain, including with prolonged standing and sitting. He denied flare-ups of pain and denied functional loss and functional impairment. Forward flexion of the thoracolumbar spine was to 25 degrees, extension was to 10 degrees, right and left lateral flexion were to 20 degrees, and right and left lateral rotation were to 20 degrees. Pain was noted on examination, which caused functional loss. There was evidence of pain with weight bearing, but no localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with no additional loss of function after three repetitions. The examiner noted that there was no additional loss of range of motion with repeated use over time. There was no ankylosis of the spine and there was no IVDS. The diagnosis was degenerative arthritis of the spine. The examiner remarked that the Veteran’s back disability did not impact his ability to work. The Veteran underwent another VA examination in December 2020. The Veteran reported symptoms including pain and severe flare-ups which last all day. He noted that the flare-ups were precipitated by sitting in uncomfortable chairs and standing too long. The Veteran noted functional impairment, which he described as pain, balance, nausea, and “CRS.” On range of motion testing, there was forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. There was pain with range of motion, which caused functional loss. The examiner noted that the range of motion contributed to functional loss, as the Veteran experienced difficulty bending over to pick things up, reaching, standing, and walking. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner noted that the Veteran was not examined after repeated use over time or during a flare-up, but that the examination was medically consistent with the Veteran’s statements regarding functional loss with repeated use over time and during flare-ups, and that such would affect range of motion resulting in forward flexion to 55 degrees, extension to 5 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner also noted that pain significantly limited functional ability with flare-ups and with repeated use over time. Additionally, the examiner reported that the Veteran experienced radiculopathy in the left lower extremity, described as mild intermittent pain, mild paresthesias, and mild numbness. The examiner noted that the radiculopathy impacted the sciatic and femoral nerve roots, and that the severity of the radiculopathy was mild. The examiner also reported that there was no ankylosis of the spine. The examiner diagnosed degenerative arthritis of the spine and IVDS. The preponderance of the evidence does not support the assignment of a rating in excess of 40 percent for a thoracolumbar spine disability. The evidence reflects that the Veteran’s thoracolumbar spine disability does not exhibit unfavorable ankylosis of the entire thoracolumbar spine. With respect to intervertebral disc syndrome, there is no evidence of that the Veteran experiences incapacitating episodes sufficient to warrant an increased evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The December 2020 VA examination report specifically notes that, although the Veteran had IVDS, he did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Consequently, the Veteran is not entitled to a higher rating under the formula for IVDS. Although the Board must consider functional factors when determining the impairment manifested by orthopedic disabilities, the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration here, as the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board recognizes the Veteran’s statements attesting pain and discomfort in his thoracolumbar spine. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran’s statements describing his symptoms are competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence includes the information necessary to rate the Veteran’s disability in accordance with the rating criteria and the examiner considered the Veteran’s reported symptomatology. Thus, when considering the overall evidence of record, including the Veteran’s statements, the Veteran’s thoracolumbar spine disability does not warrant a disability rating in excess of 40 percent from November 9, 2015. As the preponderance of the evidence is against the claim, the doctrine of resolution of doubt in the Veteran’s favor is not applicable, and the appeal is denied. 38 U.S.C. § 5107. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For the reasons discussed below, a separate 10 percent rating for radiculopathy of the left lower extremity is granted. Diagnostic Code 8520 contemplates impairment of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Paralysis of the sciatic nerve warrants an 80 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). As noted above, during his December 2020 VA spine examination, the VA examiner reported that the Veteran experiences radiculopathy in the left lower extremity. The examiner noted that the Veteran experienced mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. Based on these findings, the Board will assign a separate 10 percent disability rating for mild radiculopathy of the left lower extremity. However, as the objective medical evidence does not show that the Veteran’s left lower extremity radiculopathy was moderate, moderately severe, severe, or complete in severity, a rating greater than 10 percent is not warranted. 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Code 8250. Effective Date In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). This rule applies for both original claims for service connection and for claims reopened after final disallowance. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the Veteran’s appeals were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the old regulations, “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon, 12 Vet. App. at 35 (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). 4. Entitlement to an effective date prior to prior to July 14, 2015, for the grant of service connection for a migraine headache disability Service connection for a headache disorder was initially denied in a July 2, 2014, rating decision. Notification of the July 2014 rating decision was provided to the Veteran that same day. The Veteran did not file a timely notice of disagreement to the July 2014 rating decision, and new and material evidence pertinent to the claim was not received within one year of the rating decision. Accordingly, the July 2, 2014, rating decision which denied service connection for a headache disorder is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Service connection for a headache disorder was granted in an October 2018 Board decision. In a November 2018 rating decision, the Agency of Original Jurisdiction (AOJ) assigned an effective date of July 14, 2015. The Veteran contends that an earlier effective date is warranted for the grant of service connection for a headache disability. The Veteran’s claim for entitlement to service connection for a headache disorder was received by VA on July 14, 2015. In its November 2018 rating decision, the AOJ explained that an effective date of July 14, 2015, was awarded based upon the date of receipt of claim on that date. Therefore, the date of claim is July 14, 2015. 38 C.F.R. § 3.155(b). Although the Veteran filed a claim seeking service connection for a headache disorder in March 2014, that claim was denied in a July 2014 final rating decision. Additionally, VA did not receive new and material evidence relevant to the Veteran’s headache claim within one year of the July 2014 rating decision. Accordingly, the July 2014 rating decision is final, and the date of claim for the current appeal of entitlement to an earlier effective date for a headache disorder is July 14, 2015. The applicable regulations in this case are clear that the effective date of an original award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In this case, the earliest date that may be assigned is the date of claim. The currently assigned effective date of July 14, 2015, is the date of claim and there is no legal basis for an earlier effective date. The claim must be denied. 5. Entitlement to an effective date prior to March 19, 2013, for the grant of service connection for an acquired psychiatric disability The Veteran contends that an earlier effective date is warranted for the award of service connection for depressive disorder. The Veteran’s initial claim for entitlement to service connection was received by VA on March 19, 2014, and was denied in a May 2014 rating decision. In October 2014, the Veteran filed a notice of disagreement, and in March 2016, he perfected his appeal. In October 2018, the Board issued a decision granting service connection for depressive disorder. In November 2018, the AOJ issued a rating decision effectuating the grant of service connection, assigning a 70 percent disability rating, effective March 19, 2013. After thorough consideration of the evidence of record, the Board concludes that an effective date prior to March 19, 2013, is not warranted for the grant of service connection for depressive disorder. 38 C.F.R. § 3.400(r). The evidence of record does not reveal that a formal or informal claim for service connection for depressive disorder was received prior to March 19, 2013. See 38 C.F.R. § 3.155. Accordingly, the earliest communication indicating an intent to apply for service connection for depressive disorder in the Veteran’s claims file is the formal claim received by VA on March 19, 2013. In addition, an earlier effective date is not warranted based on the date entitlement to the benefit arose. The earliest evidence of a nexus between the diagnosed depressive disorder and the Veteran’s service-connected low back disability is shown in a September 2016 private DBQ examination. Thus, entitlement to the benefit sought did not arise until September 20, 2016, after receipt of the Veteran’s claim for service connection in March 2014. 38 C.F.R. § 3.400 is clear that the effective date for an award of service connection is the later of the date entitlement arose or the date the claim was received. Thus, an effective date earlier than March 19, 2013, for the award of service connection for depressive disorder is not possible in this case. The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. Pursuant to this authority, the Board finds that there is no legal basis by which an effective date for the grant of service connection earlier than March 19, 2013, can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400(b)(2)(i). TDIU Prior To December 17, 2018 The Veteran contends that he was unemployable due to his service-connected disabilities prior to December 17, 2018. VA will grant a TDIU when the evidence shows that the Veteran is precluded due to his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Prior to December 17, 2018, the Veteran met the schedular criteria for an award of TDIU; he was service-connected for depression, rated as 70 percent disabling from March 19, 2013; headaches and migraines, rated as 50 percent disabling from July 14, 2015; and thoracolumbar spine degenerative joint disease, rated as 10 percent disabling from March 19, 2013, and 40 percent disabling from November 9, 2015. His combined evaluation for compensation was 70 percent from March 19, 2013, and 90 percent from July 14, 2015. 38 C.F.R. § 4.16(a) (providing that the schedular criteria are met if there are two or more service-connected disabilities with one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more); 38 C.F.R. § 4.25, Table I (Combined Ratings Table). Accordingly, the Veteran met the schedular criteria for TDIU from March 19, 2013. Additionally, resolving reasonable doubt in the Veteran’s favor, the record establishes that the Veteran was unemployable due to his service-connected disabilities prior to December 17, 2018. In his December 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked in a full-time capacity on March 13, 2013. He did not report any employment after 2013. In April 2014, a VA examiner reported that the Veteran’s back disability resulted in an inability to bend. The examiner also noted that the Veteran was unable to work due to his headache disorder. In a June 2014 VA examination, the examiner concluded that the Veteran was “unable to undertake any gainful employment” due to his cervical spine condition. In a September 2016 opinion, R.W., Psy.D., noted that the Veteran stopped working in 2013 following a motor vehicle accident, and that the Veteran’s service-connected “mental/medical symptoms . . . prevent[ed] him from sustaining gainful employment from the date of his disability claim (03/19/2014) uninterrupted through the present.” Medical records from the Social Security Administration (SSA) reflect that the Veteran was awarded disability benefits, effective March 13, 2013, based upon disorders of the back and migraine headaches. The SSA records include various opinions from A.B., D.O., who opined that the Veteran was “totally wholly disabled, unable to engage in gainful employment” due to his migraine headaches. The SSA records also contain a September 2013 psychological evaluation in which the psychologist concluded that the Veteran’s “pain disorder,” migraines, and “adjustment disorder with depressed mood” did not preclude employability, finding that the Veteran “may take longer than the average employee to initially learn, retain and follow directions” but that he “should be able to perform repetitive tasks assuming they are within his physical limitations” and that he may have “minor difficulties communicating successfully with employers and coworkers.” However, the Board does not afford the September 2013 opinion significant probative weight, as it does not appear to have considered the impact of the Veteran’s service-connected disabilities of degenerative arthritis in the spine and PTSD. In that regard, the opinion refers only to the Veteran’s “pain disorder” and “adjustment disorder with depressed mood.” Further, the opinion was not based upon a review of all pertinent evidence in the claims file, as the opinion notes that only private treatment records from 2013 were considered; the Veteran’s VA treatment records and VA and private examinations were not addressed. Accordingly, the September 2013 opinion is of little probative value. Ultimately, the Board concludes that the weight of the probative evidence of record prior to December 17, 2018, shows that the Veteran’s service-connected spine disorder, PTSD, and headache disorder rendered him unemployable. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unemployable from March 19, 2013. The Board will therefore resolve reasonable doubt in favor of the Veteran and grant the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.