Citation Nr: 21028649 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-28 980 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral upper extremity radiculopathy, to include as secondary to the service-connected low back pain with degenerative changes, is denied. Entitlement to an initial disability rating in excess of 10 percent from April 20, 2009 to December 9, 2011, for left lower extremity radiculopathy, sciatic nerve, is denied. Entitlement to an initial disability rating in excess of 20 percent from December 9, 2011, to August 20, 2019, for left lower extremity radiculopathy, sciatic nerve, is denied. Entitlement to an initial disability rating of 40 percent disabling, but no higher, on and after August 20, 2019, for left lower extremity radiculopathy, sciatic nerve, is granted. Entitlement to an evaluation in excess of 40 percent for chronic low back pain with degenerative changes from December 9, 2011, is denied. Entitlement to an initial evaluation in excess of 30 percent for unspecified depressive disorder prior to May 13, 2015, is denied. Entitlement to an initial evaluation of 70 percent for unspecified depressive disorder, but no higher, is granted on and after May 13, 2015. FINDINGS OF FACT 1. The Veteran's bilateral upper extremity radiculopathy is not secondary to a service-connected back disability and is not otherwise related to an in-service injury or disease. 2. From April 20, 2009 to December 9, 2011, the Veteran's radiculopathy of the left lower extremity involving the sciatic nerve was not productive of moderate incomplete paralysis. 3. From December 9, 2011 to August 20, 2019, the Veteran's radiculopathy of the left lower extremity involving the sciatic nerve was, at worst, productive of moderate incomplete paralysis. 4. On and after August 20, 2019, the Veteran's radiculopathy of the left lower extremity involving the sciatic nerve was productive of moderately severe incomplete paralysis. 5. At no time during the pendency of this appeal has the Veteran's lumbar spine disability been manifested by unfavorable ankylosis or the functional equivalent thereof. 6. Prior to May 13, 2015, the severity, frequency, and duration of the Veteran's depression symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 7. From May 13, 2015 to August 20, 2019, the severity, frequency, and duration of the Veteran's depression symptoms resulted in occupational and social impairment in most areas. 8. On or after May 13, 2015, the severity, frequency, and duration of the Veteran's depression symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral upper extremity radiculopathy due to service or service-connected back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. From April 20, 2009 to December 9, 2011, the criteria for an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity involving the sciatic nerve have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2020). 3. From December 9, 2011 to August 20, 2019, the criteria for an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity involving the sciatic nerve have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2020). 4. On and after August 20, 2019, the criteria for an initial evaluation of 40 percent, but no higher, for radiculopathy of the left lower extremity involving the sciatic nerve have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2020). 5. The criteria for entitlement to an increased disability rating in excess of 40 percent for the thoracolumbar spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2020). 5. Prior to May 13, 2015, the criteria for a disability rating in excess of 30 percent for unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2020). 6. From May 13, 2015, the criteria for an evaluation of 70 percent, but not higher, for unspecified depressive disorder have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2012 and September 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018. At that time, the Board found that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) had been raised as part of the Veteran's increased rating claim for a spine disability. The benefit was awarded based on the combined effects of the service-connected disabilities. The Board also denied an effective date prior to April 20, 2009, for the grant of service connection for left lower extremity radiculopathy. As such, these matters are no longer in appellate status. In October 2018, the Board also remanded the Veteran's claim for service connection for a bilateral upper extremity disability as secondary to service-connected low back pain with degenerative changes. The increased rating claims for chronic low back pain with degenerative changes, left lower extremity radiculopathy, and unspecified depressive disorder with anxiety distress were also remanded for additional development. A supplemental statement of the case (SSOC) was issued in May 2020 by the VA Appeals Management Center (AMC). The case is once again before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for bilateral upper extremity radiculopathy, to include as secondary to the service-connected low back pain with degenerative changes. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for radiculopathy of the upper extremities. The service treatment records are silent for complaints, diagnosis, or treatment of an upper extremity disability. The October 1977 separation examination did not find any defects of the upper extremities. There is no evidence of an upper extremity disorder until 2006, when EMG testing showed right ulnar nerve neuropathy at the elbow and he was diagnosed with cubital tunnel syndrome. However, an October 2009 general medical examination found no evidence of sensory loss, bilaterally. The Veteran does not claim any in-service injury or disease affecting the upper extremities; rather, he claims that a bilateral upper extremity condition is secondary to his service-connected chronic low back pain with degenerative changes. See March 2010 correspondence (informal claim). Notably, there is nothing in the record to support direct service connection on a direct basis. The claim was remanded in October 2018 for the AOJ to obtain an examination to determine whether the Veteran has a current upper extremity disorder that was caused by or aggravated by his service-connected low back disability. The Veteran was afforded a VA examination in August 2019. The examiner noted the reported history of numbness and tingling in both hands starting in the 1980s. In 2005, he was referred to occupational therapy for bilateral upper extremity neuropathy. VA treatment records indicated findings of right ulnar neuropathy in February 2006. The examiner diagnosed the Veteran with cervical radiculopathy and opined that it is less likely than not caused or aggravated by his service-connected back disability. The examiner explained that radiculopathy is due to a compressed nerve in the spine. Compression on the lumbar spine causes lower extremity radiculopathy and compression on the cervical spine causes upper extremity radiculopathy. Low back pain with degenerative changes does not cause or aggravate upper extremity radiculopathy. See August 2019 VA examination and medical opinion. The Board notes that the Veteran is not service-connected for a cervical spine disability. There is no competent or credible opinion otherwise relating the Veteran's bilateral upper extremity radiculopathy to his service-connected back disability. The Board acknowledges the statements of the Veteran that his current bilateral upper extremity radiculopathy is related to his service-connected low back pain with degenerative changes. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his current bilateral upper extremity radiculopathy, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Even if the Board were to assume that the Veteran's lay assertions regarding etiology are competent, the August 2019 VA examiner's opinion is still more probative as it provides an analysis that the Board can consider and weigh against contrary opinions. As discussed above, the examiner's opinion explained the medical causes of radiculopathy and why the upper extremity symptoms could not be related to the service-connected low back disability. Such statements are more persuasive than unsupported assertions. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for radiculopathy of the right and left upper extremities. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for radiculopathy of the bilateral upper extremities is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected lumbar spine disability in this case, the present level of disability is of primary concern. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Fenderson, 12 Vet. App. at 126-27. Entitlement to an initial rating in excess of 10 percent disabling for left lower extremity radiculopathy, sciatic nerve, and in excess of 20 percent from December 9, 2011 As stated above, the Veteran is service-connected for left lower extremity radiculopathy effective April 20, 2009. The Veteran was initially assigned a 10 percent evaluation for left lower extremity radiculopathy prior to February 24, 2012, and a 20 percent evaluation for left lower extremity radiculopathy effective from February 24, 2012, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. See September 2015 rating decision. The Veteran timely appealed that decision, challenging both the assigned effective date and disability rating for his service-connected left lower extremity radiculopathy. See November 2015 Notice of Disagreement (NOD). As this is an appeal from an initial rating, the period on appeal begins from April 20, 2009. The Board notes that in May 2020, the RO found clear and unmistakable error (CUE) in the September 2015 rating decision and granted a retroactive increased rating of 20 percent disabling for left lower extremity radiculopathy, sciatic nerve, from December 9, 2011. See May 2020 rating decision. Under DC 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, is assigned a 10 percent rating. A 20 percent evaluation is contemplated for moderate incomplete paralysis, and a 40 percent evaluation is warranted for moderately severe incomplete paralysis. A 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement and are combined with application of the bilateral factor for bilateral involvement. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Period prior to December 9, 2011 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran was not entitled to an initial evaluation in excess of 10 percent prior to December 9, 2011, for radiculopathy of the left lower extremity. Prior to December 9, 2011, the Veteran's radiculopathy of the left lower extremity was not productive of moderate incomplete paralysis. VA treatment records from April 2009 documented his complaints of numbness in his lower extremities and a diagnosis of sciatica was made at that time. There were no specific findings of motor or sensory dysfunction, and his ambulation was normal. In August 2009, he denied leg pain or swelling. He complained of worsening low back pain, but it was noted that there was no change in his sciatica. See August 2009 VA treatment records. In October 2009, he complained of soreness in the left lower leg. An October 2009 general medical examination was normal. There was no evidence of motor loss or sensory loss at that time. Knee and ankle reflexes were 2+, normal, bilaterally. See October 2009 VA examination report. A 10 percent evaluation was assigned for left lower extremity radiculopathy based on mild incomplete paralysis (evidence of subjective symptoms only). See September 2015 rating decision. Based on the evidence of record, a rating in excess of 10 percent is not warranted prior to December 9, 2011. As noted, the Veteran's symptoms were subjective. The record documents that he had normal reflexes with no sensory loss, muscle weakness, or difficulty ambulating. The Board recognizes that a moderate rating may be appropriate for sensory-only impairment, and while leg pain and numbness were present, sensory impairment was not alleged or identified. See M21-1, Pt. III, Subpt. iv, 4.N.e.f. Moderate or greater incomplete paralysis of the left sciatic nerve so as to warrant an increased 20 percent or greater rating is not shown. Period from December 9, 2011 to August 20, 2019 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran was not entitled to an initial evaluation in excess of 20 percent from December 9, 2011 to August 20, 2019, for radiculopathy of the left lower extremity. A VA examination for the lumbar spine was performed in February 2012. The Veteran reported being unable to stand, bend, or be on his feet for very long. He gave a history of an in-service injury to his low back with chronic back pain becoming worse especially in the last 3-4 years. He reported intermittent episodes of radiating pain into the right hip and to the mid-thigh on the right side. He also reported flare-ups six or seven times per month with difficulty walking. The examiner noted current diagnoses of sciatica, degenerative disc disease and a lytic lesion at S1, etiology unknown. The VA examination in February 2012 showed motor strength reduced to 4/5 in the hip and knee. There was no muscle atrophy. Reflexes were normal. Light touch sensation was absent in the left lower leg/ankle. The examiner noted loss of vibratory sense at the lateral mid- to lower left leg and foot. The Veteran was not using any assistive devices. The February 2012 examination was internally inconsistent insofar as the examiner indicated that the Veteran's left lower extremity nerve root was not impaired but also indicated that the Veteran had "severe" bilateral lower extremity radiculopathy. See February 2012 VA examination report. The AOJ did not request clarification of these conflicting findings. Due to these inconsistencies, the Board concludes that the February 2012 examination is entitled to little probative weight. In June 2014, he complained of burning pain in both ankles and occasional shooting pain down to his feet. A July 2014 nerve conduction study of the left lower extremity found that the sural sensory responses were absent. The tibial and peroneal motor responses were slowed in conduction velocities. Needle examination of the left lower extremity was notable for neurogenic changes in the L5 innervated muscles, along with denervation present in the lower paraspinal muscles. There was electrodiagnostic evidence of left L5 radiculopathy and a diffuse, axonal sensorimotor peripheral polyneuropathy. See June-July 2014 VA treatment records. Another VA examination for the lumbar spine was performed in August 2015. The examiner noted diagnoses of degenerative disc disease of the lumbar spine, sciatica, and a lumbar disc protrusion. At that time, the Veteran reported chronic low back pain radiating into the left hip. He also described numbness and cramping. He stated he had trouble walking and getting up from a seated position. Muscle strength testing showed reduced muscle strength, 4/5, primarily on the left side. There was no muscle atrophy. Deep tendon reflexes were absent for the left knee and ankle. Light touch testing revealed decreased sensation in the left lower leg/ankle and foot/toes. Straight leg raise testing was negative, bilaterally. The examiner found that there was left lower extremity intermittent pain and numbness, described as "moderate," involving the sciatic nerve roots on the left side. There were no other signs or symptoms of radiculopathy. The examiner indicated that the Veteran's left side radiculopathy was "moderate" in severity. There were no other neurological abnormalities found on exam. He did not use any assistive devices. Functional impact was described as difficulty standing and walking and no bending or lifting. See August 2015 VA examination report. Overall, the evidence is consistent with moderate incomplete paralysis of the left sciatic nerve. The record does not indicate that the Veteran experiences atrophy and while muscle strength is reduced, it is noted to be 4/5 and not at a grade reflecting a high level of limitation. Instead, the record describes combinations of significant sensory changes and reflex or motor changes of a lower degree consistent with a moderate disability. Thus, for the period prior to August 20, 2019, the probative evidence of record establishes that left lower extremity radiculopathy more nearly approximated a 20 percent disability rating, though no higher, under DC 8520. Period on and after August 20, 2019 Following the Board's remand, the Veteran was afforded additional VA examinations in August 2019. The examiner for the back disability noted the Veteran's report of worsening back pain with monthly flare-ups and inability to walk long distances. Muscle strength was rated as 5/5 bilaterally with no muscle atrophy. Deep tendon reflexes were normal. A sensory examination revealed decreased sensation to light touch of the thigh/knee and lower leg/ankle, bilaterally. There was no sensation to light touch testing of the feet and toes, bilaterally. Straight leg raise testing was positive bilaterally. The Veteran exhibited constant pain, intermittent pain, paresthesias and/or dysesthesias of the bilateral lower extremities, moderate in severity. He also had severe numbness of the bilateral lower extremities. The examiner indicated that the Veteran suffered from "moderate" radiculopathy of both lower extremities. He had no other neurologic abnormalities. At that time, he indicated constant use of a walker due to back pain. Functional impact of his back disability was described as the inability to sit, stand or walk more than 10 minutes without resting or changing positions. See August 2019 VA examination report for the lumbar spine. The same examiner also performed an examination for the peripheral nerves. She noted the diagnosis of lumbar radiculopathy and the reported history of numbness and tingling of the lower extremities starting in the 1990s, becoming worse over the years. The examiner described his radicular symptoms of the bilateral lower extremities as "moderate" in severity, including constant pain. Numbness of the bilateral lower extremities was indicated to be "severe." Muscle strength testing indicated normal strength, 5/5, bilaterally with no muscle atrophy. Deep tendon reflexes were rated as normal, 2+, bilaterally. Light touch testing revealed decreased sensation of the bilateral lower extremities and no sensation in the feet and toes. There were no trophic changes and his gait was found to be normal. The examiner indicated that he had moderately severe incomplete paralysis of the sciatic nerve, bilaterally. Functional impact was described as tripping due to not being able to feel his feet. The examiner remarked that his left lower extremity radiculopathy was a progression of the previous diagnosis due to worsening pain. See August 2019 VA examination report for the peripheral nerves. Accordingly, the probative evidence of record from August 20, 2019, demonstrates the left lower extremity radiculopathy more nearly approximates moderately severe symptoms under the criteria of DC 8520. The examiner found severe numbness in the lower extremities with no sensation in the feet and toes. Unlike the prior appeal period where the Veteran's sensation was diminished, the VA examination revealed no sensation to light touch testing of the feet and toes. It was noted that the Veteran would trip due to being unable to feel his feet. The peripheral nerves examination indicated that he had moderately severe incomplete paralysis of the sciatic nerve. During this period, the probative evidence of record is absent of any findings in the left lower extremity of severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, tropic changes. Although pain was constant, it was described as moderate and not severe. There is also no evidence of complete paralysis of the sciatic nerve and the Veteran does not appear to contend otherwise. Thus, for the period from August 20, 2019, the probative evidence of record establishes that the left lower extremity radiculopathy more nearly approximates a 40 percent disability rating, though no higher, under DC 8520. 38 C.F.R. § 4.124a. Accordingly, the Veteran's left lower extremity radiculopathy warrants a 10 percent disability rating, though no higher, for the period prior to December 9, 2011; a 20 percent disability rating, though no higher, from December 9, 2011 to August 20, 2019; and a 40 percent disability rating, though no higher, on and after August 20, 2019 under DC 8520. 38 C.F.R. §§ 4.3, 4.7, 4.124a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to an evaluation in excess of 40 percent for chronic low back pain with degenerative changes from December 9, 2011 The Veteran's disability is currently rated under Diagnostic Code 5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. The applicable Diagnostic Code (DC) is 5242 for degenerative arthritis, which is rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability rating is warranted if there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted if there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined ROM 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 warranted if there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, with or without symptoms such as pain, stiffness or aching. A 100 percent disability rating is warranted if there is unfavorable ankylosis of the entire spine, with or without symptoms such as pain, stiffness or aching. Favorable ankylosis means that the person's spine is frozen in a neutral position or zero degrees. See DC 5242, Note (5). Further, Note (5) clarifies that "unfavorable ankylosis is a condition in which . . . the entire thoracolumbar spine . . . is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial . . . subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis." However, if there is a diagnosis of intervertebral disc syndrome (IVDS), the spinal disability may be rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). DC 5243 provides that a 20 percent rating is assigned for incapacitating episodes of IVDS having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating, the maximum available, is assigned in the event of incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1) under DC 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Further, when evaluating musculoskeletal disabilities such as spinal disabilities, 38 C.F.R. § 4.40 recognizes the primary concern is the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Thus, when evaluating musculoskeletal disabilities on the basis of limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors that may not be reflected upon ROM testing during flare-ups or with repeated use over time. In that regard, the VA must also consider factors such as: more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing are related considerations as well. 38 C.F.R. § 4.45. Nevertheless, even when such factors are present, a separate or higher disability rating is not appropriate based on those factors alone. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Rather, the disability rating assigned is based on the extent to which motion is limited as a result of these factors. The Veteran filed his claim for an increased rating for chronic low back pain with degenerative changes on December 9, 2011. Generally, in assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, he is not competent to render a medical diagnosis or opinion on complex medical questions such as ROM measurements, the presence of an abnormal spinal contour, presence of ankylosis or other complications stemming from his lumbar spine disability. Id. Consequently, in that regard, the Board must rely on the medical evidence of record. He was afforded a VA examination in February 2012. The Veteran reported chronic back pain since the injury in-service, worsening over the last 3-4 years. He also reported intermittent episodes of radiating pain into the right leg. The Veteran reported flare-ups several times per month during which he can barely get out of his chair. See February 2012 VA examination report. Initial ROM testing showed the Veteran could achieve forward flexion of 0 degrees (normal being to 90 degrees); extension of 0 degrees (normal being to 30 degrees); right lateral flexion of 5 degrees (normal being to 30 degrees); left lateral flexion of 10 degrees (normal being to 30 degrees); right lateral rotation of 20 degrees (normal being to 30 degrees); and left lateral rotation of 10 degrees (normal being to 30 degrees). The examiner stated that she was unable to perform repetitive-use testing due to pain; however, the examiner then indicated the same ROM measurements after repetitive-use testing as initial ROM testing. Functional impairment was described as less movement than normal, weakened movement, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. There was no localized tenderness or pain on palpation. There was no guarding or muscle spasm noted. The examiner indicated the Veteran has intervertebral disc syndrome (IVDS) of the thoracolumbar spine with incapacitating episodes over the past 12 months, at least 2 weeks but less than 4 weeks. The Veteran was not using any assistive devices for locomotion at that time. There were no other pertinent physical findings, complications, conditions, signs or symptoms noted. Functional impact of his back disability was described as being unable to stand, bend, or be on his feet for very long. See February 2012 VA examination report. Another VA examination for the back was conducted in August 2015. Diagnoses at that time included degenerative arthritis of the lumbar spine, IVDS, sciatica, and a lumbar disc protrusion. The Veteran complained of constant low back pain radiating into his left hip. He described feeling a "bulging pain in the back." He also reported flare-ups described as difficulty walking and getting up from a sitting position. ROM testing showed the Veteran could achieve forward flexion of 30 degrees; extension of 15 degrees; and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation of 25 degrees. It was noted that he has to use his knees and legs for bending instead of his back for normal activities. Pain was noted on examination and caused functional loss with all ranges of motion. The examiner also noted that there was evidence of pain with weight bearing and tenderness in the L4/L5 region. There was no additional loss of function or range of motion after three repetitions. See August 2015 VA examination report. There was no guarding or muscle spasm noted. There was no ankylosis of the spine. The examiner did not find any other neurologic abnormalities related to a back disability. The examiner found that the Veteran does have IVDS but no acute episodes requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran was not using any assistive devices. There were no other pertinent physical findings, complications, conditions, signs or symptoms. Functional impact of his back disability was characterized as being unable to do anything involving extensive standing or walking, and no lifting or bending. The examiner noted that an October 2014 MRI of the lumbar spine revealed mild degenerative disc disease at L4-5 causing a central disc protrusion abutting the ventral CSF without causing significant spinal canal narrowing or neural foraminal compromise. See August 2015 VA examination report. In October 2018, this issue was remanded for the RO to obtain private treatment records and for a VA examination to ascertain the current severity and manifestations of his service-connected back disability, to include clarification as to the presence of right lower extremity radiculopathy. See October 2018 Board decision. The Board observes that in June 2019, VA sent the Veteran and his attorney VA Form 21-4142 and VA Form 21-4142a authorization forms which were not returned. See May 2020 SSOC. Service connection for right lower extremity radiculopathy, sciatic nerve, was granted in May 2020. See May 2020 rating decision. Following remand, the Veteran was afforded an additional VA examination in August 2019. He reported worsening low back pain since the in-service injury. He also reported monthly flare-ups precipitated by overuse, described as severe and lasting for days. Functional loss was described as the inability to lift heavy objects, walk long distances, or sleep well due to pain. See August 2019 VA examination report. Initial ROM testing revealed forward flexion of 35 degrees; extension of 10 degrees; right and left lateral flexion of 15 degrees; and right and left lateral rotation of 20 degrees. Pain was noted on examination and caused functional loss with all ranges of motion. The examiner also noted evidence of pain with weight bearing. There was no additional loss of function or ROM after three repetitions. ROM after repeated use over time was estimated as the same as initial ROM measurements. The examination was not being conducted during a flare-up but the examiner found that pain would significantly limit functional ability with flare-ups, described in terms of ROM as forward flexion of 30 degrees, and extension, right/left lateral flexion, and right/left lateral rotation of 10 degrees. See August 2019 VA examination report. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Additional factors contributing to disability were disturbance of locomotion and interference with sitting/standing, described as being unable to sit, stand or walk more than 10 minutes without resting or changing position. There was no ankylosis of the spine and no other neurologic abnormalities or findings related to a thoracolumbar spine condition. The August 2019 examiner found that the Veteran did not have IVDS. At that time, he reported using a walker due to back pain. There were no other pertinent physical findings or symptoms noted. Functional impact due to the Veteran's back disability was characterized as being unable to sit, stand or walk more than 10 minutes without resting or changing positions. See August 2019 VA examination report. The Veteran also submitted evidence in support of his claim for TDIU which referenced the severity of his back disability, including a lay statement from T.B. describing his difficulties managing daily living tasks on his own, and a medical opinion letter and residual functional capacity (RFC) assessment from Dr. H.S. stating that he has limitations concerning his ability to walk, stand or sit. See September 2016 correspondence. The evidence of record is conflicting regarding whether the Veteran carries a diagnosis of IVDS. See February 2012, August 2015 VA examination reports (finding he has a diagnosis of IVDS); August 2019 VA examination report (no diagnosis of IVDS). Even if the Board accepts he has a diagnosis of IVDS, there is no evidence of record establishing that he experienced any acute episodes of IVDS that required bed rest and treatment prescribed by a physician having a total duration of at least 6 weeks during the past 12 months which would warrant a 60 percent rating. His service-connected back disability is already rated as 40 percent disabling. The February 2012 examiner stated that he experienced incapacitating episodes of IVDS over the past 12 months of at least 2 weeks but less than 4 weeks, which results in a 20 percent rating under the rating formula for IVDS. See DC 5243. Therefore, utilizing the General Rating Formula for Diseases and Injuries of the Spine is more advantageous to him. The February 2012 examiner found range of motion limited to zero degrees flexion and extension; his range of motion of the lumbar spine was effectively reduced to zero degrees, causing him a functional limitation substantively indistinguishable from that caused by favorable ankylosis. Therefore, the Board finds that the Veteran's symptoms associated with his lumbar-spine condition most closely approximated the criteria corresponding to a 40 percent rating under DC 5242. However, a rating in excess of 40 percent is not warranted for the period on appeal because nothing in the record suggests that the Veteran suffered from unfavorable ankylosis of the entire spine or the entire thoracolumbar spine during any portion of the period on appeal. Nor is there evidence of the functional equivalent of unfavorable ankylosis during flare-ups. While the Veteran has significant limitation of motion of the thoracolumbar spine primarily due to pain, it is not analogous to the criteria for a higher, 50 percent rating under DC 5242. Accordingly, a rating in excess of 40 percent is not warranted for this disability. Furthermore, the evidence does not show any other associated neurologic abnormalities other than the already service-connected radiculopathy of the bilateral lower extremities. Lastly, the Board has considered the possibility of staged ratings and finds that the schedular rating of 40 percent for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, staged ratings are inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In view of the above, the Board finds the preponderance of the evidence weighs against an increased disability rating in excess of 40 percent for the thoracolumbar spine disability. Entitlement to an initial evaluation in excess of 30 percent for unspecified depressive disorder with anxiety distress from December 9, 2011 to August 20, 2019, and in excess of 70 percent thereafter The Veteran maintains that his unspecified depressive order with anxiety distress is worse than his current disability rating. The Veteran's unspecified depressive disorder is rated pursuant to Diagnostic Code (DC) 9435, which directs the Board to apply the General Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130. Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The General Formula outlines six disability levels from zero to 100 percent, each defined using a similar format. The four that are relevant to this appeal are reproduced below. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. After granting service connection, the RO initially assigned a 30 percent disability rating, effective December 9, 2011 (the date of the claim). Following remand, the Veteran's disability rating was increased to 70 percent, effective August 20, 2019 (date of VA examination), thereby splitting the Veteran's disability rating into two stages. See May 2020 rating decision. A claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulation, and a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher for the first stage and 100 percent for the second stage. Evaluation under the General Formula is "symptom-driven," meaning that "symptom[s] should be the fact finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio, 713 F.3d at 116-17. As such, the Board will begin by reviewing the Veteran's symptoms during the appeal period keeping in mind that the Veteran is competent to report his experienced symptoms, such as depressed mood, anxiety, and the like. See 38 C.F.R. § 3.159(a)(2). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for an increased rating. The Veteran's unspecified depressive disorder is currently evaluated as 30 percent disabling prior to August 20, 2019, and 70 percent disabling thereafter. For the reasons set forth below, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for an increased disability rating prior to May 13, 2015; however, on and after that date, a 70 percent rating, but no higher, is warranted. Prior to May 13, 2015 The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher before May 13, 2015. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. VA treatment records, the February 2012 and December 2012 VA examinations, a February 2014 private Disability Benefits Questionnaire (DBQ) by Dr. A.H.F., and the Veteran's lay statements show that the Veteran's unspecified depressive disorder with anxiety distress was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment), and symptoms associated with a 50 percent rating (flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships). Dr. A.H.F. also identified symptoms associated with a 70 percent rating (difficulty in adapting to stressful circumstances (including work or a worklike setting) and inability to establish and maintain effective relationships) and a 100 percent rating (intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene)). He also had symptoms that are not listed with a specific rating, such as loss of energy, some loss of interest, and feelings of worthlessness. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. Loss of energy, loss of interest, and feelings of worthlessness are similar to depressed mood, which is contemplated by the assigned 30 percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Mental status examinations in VA treatment records and the VA examinations indicate that the Veteran was appropriately dressed; friendly and cooperative; his thought processes and thought content were normal; he denied any delusions or hallucinations; he denied panic attacks; attention and concentration were deemed to be adequate; he was oriented to person, place and time; his memory was intact; he did not exhibit any inappropriate behavior; and he was able to maintain personal hygiene. He denied homicidal/suicidal ideation and did not have episodes of violence. During the February 2012 VA examination, the Veteran reported that he was living in a house by himself. He reported having eight good friends whom he calls several times a week. He stated he enjoys watching television and walking in state parks. He worked in lawn care for many years, eventually starting his own company, which he operated for six years until a heart attack in 2000. He has not worked since that time. Symptoms at that time included depressed mood and chronic sleep impairment. The VA examiner characterized his current symptoms as "mild." He reported he was depressed "a lot of days during the week, but not most days." He also reported being lonely and missing his mother, who was deceased. He denied loss of interest and was still taking care of himself and the house. He reported difficulty sleeping secondary to chronic back pain. He stated he felt worthless due to the fact that he was unable to work anymore and do yard work for people. He denied suicidal ideation or thoughts of death. See February 2012 VA examination report. During the December 2012 VA examination, the Veteran reported that he continued to live in his own home. He reported that his parents were deceased, but he continued to see one of his sisters and they got along well. He stated that he continued to see some close friends. He also reported that he took in a dog from the neighbors who could no longer afford to take care of her and he took her out five times a day and played with her. He told the examiner that he had plenty of interests and got a car since the last exam so he can drive to various places including VA, the store and his friends' houses. He stated that he had not received any mental health treatment since the last examination and was currently prescribed diazepam for anxiety. He continued to smoke 3-4 marijuana cigarettes daily. See December 2012 VA examination report. Symptoms at that time consisted of chronic sleep impairment. He endorsed feeling depressed 4 times per month. He also endorsed difficulty sleeping most nights and mild loss of energy. However, he expressly denied other symptoms including loss of interest, change in appetite, feelings of worthlessness and inability to concentrate. He denied any suicidal ideation or thoughts of death. Other than reported sleep impairment, the mental status examination was within normal limits. The VA psychologist examiner opined that his depressive disorder was in remission since the time of the initial examination in February 2012. She explained that at the time of the February 2012 examination his depressive disorder was documented to be "very mild" and it is not unusual that it has remitted. It was noted that symptoms of such mild severity would not impact occupational functioning, and he currently enjoys numerous leisure activities and interacts with friends and family. The examiner also stated that his continued cannabis dependence may be contributing to his current sleep impairment. See December 2012 VA examination report. The Veteran submitted a February 2014 private Disability Benefits Questionnaire (DBQ) by Dr. A.H.F. See September 2016 correspondence. Dr. A.H.F. opined that the Veteran's depressive disorder produces occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Dr. A.H.F. conducted an interview with the Veteran by telephone. The Veteran reported that he lives alone and has difficulty sleeping due to pain. He manages basic activities of daily living but has a hard time because of pain. He reported that he enjoys cards and puzzles and playing with his dog. He last worked in 2003 doing lawn care and stopped due to a heart attack and increased back pain. At the time of Dr. A.H.F.'s interview he was taking diazepam for anxiety but was not in counseling. He also reported daily use of cannabis. While Dr. A.H.F. did identify symptoms contemplated by a 50 percent or higher ratingflat affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygienethe evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. Further, Dr. A.H.F.'s results were not consistent with the other evidence of record. The Veteran's difficulties with activities of daily living were attributed to physical pain, not his depressive disorder. He stated that he enjoys activities such as completing puzzles, playing cards, and spending time with his dog. In addition, the evidence indicates that he stopped working because of heart problems and his back pain, not any psychological disorder. For these reasons, his report is entitled to less probative weight. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 50 percent rating. The criteria for a 50 percent or higher rating are not met prior to May 13, 2015. On and after May 13, 2015 As noted above, the Veteran's depression has been rated as 30 percent disabling from December 9, 2011 through August 20, 2019, and 70 percent disabling thereafter. For the reasons set forth below, the Board finds that a 70 percent rating is warranted on and after May 13, 2015. However, a 100 percent rating is not warranted at any point during the appeal period. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating on and after May 13, 2015 and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. As already set forth above, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the August 2015 and August 2019 VA examinations, and the Veteran's lay statements show that the Veteran's unspecified depressive disorder with anxiety distress was manifested by symptoms associated with a 70 percent rating (suicidal ideation, difficulty in adapting to stressful circumstances, including work or a work-like setting, and near-continuous depression affecting the ability to function independently, appropriately and effectively), and symptoms associated with a 100 percent rating (persistent delusions or hallucinations, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene). He also had symptoms that are not listed with a specific rating, such as anhedonia and feeling isolated. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Indeed, the reported symptoms of anhedonia and feelings of loneliness and isolation are similar to disturbances of motivation and mood, which is contemplated by the 50 percent criteria. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the August 2015 and August 2019 VA examinations. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA treatment records and the August 2015 and August 2019 VA examinations were generally within normal limits. A mental status examination during the August 2015 VA examination revealed good hygiene, consistent eye contact, cooperative attitude, logical and goal-directed thought processes, intact memory, good attention, and fair insight and judgment. Speech was within normal limits. Mood was described as dysphoric and affect was blunted/constricted. The Veteran denied any auditory or visual hallucinations. He was alert and oriented x 4 and denied homicidal/suicidal ideation, although he told the examiner that at times, he has thought that if his treatment providers were injured he would not assist them. He also stated that he wonders why he exists because he "can't do nothing." See August 2015 VA examination report. In September 2016, a mental status examination revealed that he was alert and oriented in all spheres; his attitude was cooperative and his behavior was appropriate to context; mood was euthymic and affect was congruent; his speech was verbose and disorganized; his thought process was described as logical, loose, and tangential; his memory was grossly intact for purposes of the interview; focus and concentration was characterized as "fair." He denied any suicidal/homicidal ideation or auditory/visual hallucinations. However, it was noted that he had paranoid ideation and his thought content revolved around his belief that the neighbors were watching him. His judgment and insight were characterized as "poor." Diagnoses at that time included unspecified depressive disorder and cannabis use disorder moderate, plus a new diagnosis of psychosis, NOS, to rule-out substance induced psychosis and rule-out delusional disorder. See September 2016 VA treatment records. In October 2016, during a psychiatric reassessment in relation to his arrest for possession of marijuana in March 2016, the mental status examination was within normal limits. He described his mood as "ok" at that time and no psychotic symptoms were reported or observed. He denied any danger to himself or others. His speech was normal and he was alert and oriented to person, place and time. His thought content was appropriate and his memory was intact. See October 2016 VA treatment records. At that time, the Veteran denied any significant history of mental health issues and stated that he did not believe he was in need of psychiatric treatment. He denied any increased suicidal or homicidal ideation and denied any increased cognitive impairment or symptoms of psychosis. Id. A social work note from April 2019 indicates that the mental status examination was mostly within normal limits; his hygiene and grooming were good and he was dressed appropriately. He described his mood as "okay." Affect was euthymic. Eye contact was appropriate and his speech was normal. His thought content was relevant and thought processes were logical and sequential. There was no indication of distortions, delusions, or hallucinations. He was alert and oriented x 4 and his memory appeared to be intact for recent and remote events. He was open, receptive and cooperative. It was noted that he had limited insight regarding pain. There were no observed or reported concerns with judgment. See April 2019 VA treatment records. In August 2019, the mental status examination revealed that the Veteran was appropriately dressed and groomed for the interview; he was cooperative, alert and well-oriented; concentration and attention were within normal limits; speech was normal in rate, tone and volume; thought content was logical, organized, relevant and goal-directed; insight and judgment were deemed to be adequate; memory was grossly intact; judgment and insight were good; he exhibited good eye contact; he demonstrated no bizarre behavior, no psychomotor agitation or retardation; he denied any past or present psychotic-like experiences; he denied any hallucinations or delusions; and he denied homicidal ideation. However, his mood was described as dysthymic and his affect was anxious and congruent with his responses. Notably, he reported passive suicidal ideation approximately eight weeks ago, described as feeling hopeless with fleeting thoughts of being better off dead. He denied having any plan or method and denied preparatory behaviors. He was future-oriented and provided reasons for living. See August 2019 VA examination report. A psychology outpatient treatment record in May 2015 noted passive suicidal thoughts, without current plan or intent. The Veteran stated that he never acted on these thoughts due to his belief that he would "go to hell." See May 2015 VA treatment records. During the August 2015 VA examination, the Veteran reported that he was Skyping with a woman from the Philippines and wanted to secure a visa for her but did not have the money. He stated that he had one surviving sister that did not contact him very frequently as she was in an older adult living facility. Regarding friends, he stated that he had friends that came over to check on him and three couples that he saw on a regular basis and helped him with money for gas and food. He told the examiner that he did not have any hobbies. He enjoyed watching science fiction on television and reading. He reported that his dog is his best friend and "she helps me a lot." He also stated that he builds models in his spare time. See August 2015 VA examination report. He reported that he stopped working around 2003 due to heart problems. He is currently on Social Security disability. It was noted that he continued to use marijuana daily, approximately 2-3 joints per day. Symptoms at that time were depressed mood, anxiety, and chronic sleep impairment. The Veteran expressed irritation and frustration over his medical treatment. He stated that his back pain interferes with sleep. He expressed anxiety regarding his health. The VA psychologist opined that his current symptoms were mild to moderate in nature, at least partly aggravated by his service-connected medical disabilities. See August 2015 VA examination report. In September 2016, the Veteran reported continued anxiety and sleep problems. He also stated that the neighbors are "always watching me" and stole his phone. He told the treatment provider that his neighbors are "after him" and attack him verbally. He reported that he had a fiancée in the Philippines and intended to marry her in December and bring her back to the United States. He stated that he was on probation for having marijuana in the house. He denied hopelessness or helplessness and was future-oriented. See September 2016 VA treatment records. A social work note from April 2019 indicates that the Veteran was focused on his medical problems. He also stated that he felt isolated and did not have much support. His dog had died in December and he reported increased depression and loneliness. He stated that he just started going to the Senior Center to play bingo and eat lunch. He also stated that he had a wife in the Philippines and spoke to her everyday but they could not see each other due to travel restrictions. He endorsed passive suicidal ideation without intent or plan. He told the social worker that, "if something happens to my wife, then I will have nothing to live for." See April 2019 VA treatment records. During the August 2019 VA examination, the Veteran reported numerous negative life events within the last year that continued to make him feel sad and isolated, including the deaths of his dog and his sister and surgery late last year. He stated he is increasingly aware that he is alone. Financial constraints prevent him from participating in hobbies. He reported numerous physical complaints and pain. He described feeling alone. He told the examiner he has a few friends but not as many as he would like. He reported occasional difficulties with activities of daily living and felt depressed more days than not. He described feeling lack of motivation and anhedonic. He also stated that he is anxious all the time about his health and has difficulty sleeping. His thought content was reported to be often paranoid; he increasingly suspects negative intention towards him on the part of others, like strangers walking down the street. See August 2019 VA examination report. He reported smoking marijuana to alleviate physical pain and cope with his depression and anxiety. On the positive side, he reported being in a relationship with a woman in the Philippines and volunteering at the Salvation Army. He also started going to the Senior Center to play bingo and eat lunch. See August 2019 VA examination report. While the Veteran did experience symptoms contemplated by a 100 percent ratingpersistent delusions and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygienethe evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, he was not totally socially impaired. While the VA treatment records and examinations show the Veteran reported perceived loneliness and isolation, they also contain reports that the Veteran maintained a relationship with a woman from the Philippines, had friends, enjoyed reading and watching television, volunteered at the Salvation Army, and went to the Senior Center to play bingo. He was close to his sister before she died. He also enjoyed the companionship of his dog. In fact, in April 2019, the Veteran reported that he had a wife in the Philippines and spoke with her every day. In short, beginning on May 13, 2015, the evidence of record shows that the Veteran's depression was manifested by symptoms associated with a 70 percent rating, including suicidal ideation. However, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. As discussed above, total social impairment has not been demonstrated. The criteria for a 100 percent rating are not met at any point during the appeal period. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, Associate 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.