Citation Nr: 21041637 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-38 513A DATE: July 9, 2021 ORDER Resolving reasonable doubt in favor of the Veteran, for the rating period from January 28, 2013 to November 13, 2014, an increased disability rating of 40 percent, but no higher, for degenerative arthritis of the lumbar spine, intervertebral disc syndrome (lumbar spine disability) is granted. Resolving reasonable doubt in favor of the Veteran, for the rating period from November 13, 2014 to May 18, 2015, an increased disability rating of 60 percent, but no higher, for the lumbar spine disability is granted. For the rating period from May 19, 2015, an increased disability rating in excess of 60 percent for the lumbar spine disability is denied. Resolving reasonable doubt in favor of the Veteran, for the rating period from July 20, 2015 to February 20, 2020, a higher initial disability rating of 30 percent, but no higher, for depressive disorder is granted. For the rating period from February 20, 2020, a higher initial disability rating in excess of 50 percent for depressive disorder is denied. Service connection for right carpal tunnel syndrome, including as secondary to the service-connected right elbow epicondylitis, is denied. Service connection for left carpal tunnel syndrome, including as secondary to the service-connected left elbow epicondylitis, is denied. REMANDED A total disability rating based on individual unemployability (TDIU) for the period from January 28, 2013 to May 19, 2015 is remanded. FINDINGS OF FACT 1. For the rating period from January 28, 2013 to November 13, 2014, the lumbar spine disability has been manifested by intervertebral disc syndrome (IVDS) resulting in episodes of bed rest prescribed by a physician having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period, without unfavorable ankylosis of the entire thoracolumbar spine or IVDS resulting in episodes of bed rest of at least 6 weeks during a 12-month period. 2. For the rating period from November 13, 2014 to May 19, 2015, the lumbar spine disability has been manifested by IVDS resulting in episodes of bed rest prescribed by a physician having a total duration of at least 6 weeks during a 12 month period, without unfavorable ankylosis of the entire spine. 3. For the rating period from May 19, 2015, the lumbar spine disability has not manifested in unfavorable ankylosis of the entire spine. 4. For the rating period from July 20, 2015 to February 20, 2020, the Veteran's depressive disorder has manifested in symptoms that more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and has not manifested in occupational and social impairment with reduced reliability and productivity. 5. For the rating period from February 20, 2020, the Veteran's depressive disorder has manifested in symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity, and the severity of the unspecified depressive disorder has not caused occupational and social impairment with deficiencies in most areas. 6. The Veteran is currently diagnosed with carpal tunnel syndrome (CTS) in the right wrist; symptoms of right wrist CTS were not chronic in service, have not been continuous since service separation, and did not manifest to a compensable degree within one year of separation from service; the current right wrist CTS is not the result of any injury sustained in, or otherwise etiologically related to, active service; the current right wrist CTS was not caused, or worsened beyond its normal progression, by the service-connected right elbow epicondylitis. 7. The Veteran is currently diagnosed with carpal tunnel syndrome (CTS) in the left wrist; symptoms of left wrist CTS were not chronic in service, have not been continuous since service separation, and did not manifest to a compensable degree within one year of separation from service; the current left wrist CTS is not the result of any injury sustained in, or otherwise etiologically related to, active service; the current left wrist CTS was not caused, or worsened beyond its normal progression, by the service-connected left elbow epicondylitis. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the rating period from January 28, 2013 to November 13, 2014, the criteria for an increased disability rating of 40 percent, but no higher, for the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. Resolving reasonable doubt in favor of the Veteran, for the rating period from November 13, 2014 to May 19, 2015, the criteria for an increased disability rating of 60 percent, but no higher, for the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 3. For the rating period from May 19, 2015, the criteria for an increased disability rating in excess of 60 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 4. Resolving reasonable doubt in the Veteran's favor, for the rating period from July 20, 2015 to February 20, 2020, the criteria for a higher initial disability rating of 30 percent, but no higher, for unspecified depressive disorder have been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9435. 5. For the rating period from February 20, 2020, the criteria for a higher initial disability rating in excess of 50 percent for unspecified depressive disorder have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9435. 6. The criteria for service connection for right carpal tunnel syndrome, to include as secondary to the right elbow epicondylitis, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 7. The criteria for service connection for left carpal tunnel syndrome, to include as secondary to the left elbow epicondylitis, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from October 1954 to October 1977. As for characterization of the issues on appeal, the Regional Office (RO) awarded a TDIU, from May 19, 2015, in a February 2019 rating decision. The period on appeal for the increased rating issues on appeal dates back to January 28, 2013 at the earliest. Therefore, the issue of entitlement to a TDIU, prior to May 19, 2015, is on appeal before the Board as part and parcel of the increased rating matters on appeal. See Harper v. Wilkie, 30 Vet. App. 345 (2018); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the lumbar spine disability from January 28, 2013 to November 13, 2014 For the rating period from January 28, 2013 to November 13, 2014, the Veteran is in receipt of a 20 percent disability rating for the lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for the entire claim period. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. After a review of all the evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence demonstrates that, for the rating period on appeal from January 28, 2013 to November 13, 2014, the lumbar spine disability has been manifested by IVDS resulting in episodes of bed rest prescribed by a physician having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period to warrant a 40 percent rating. An April 2013 VA examination report reflects positive findings for IVDS with incapacitating episodes requiring physician prescribed bed rest having a total duration of at least 4 weeks, but less than 6 weeks during a 12-month period. The April 2013 VA examiner also noted that the Veteran stopped working due to back pain back in 1989. Based on the Veteran's reports of pain and functional limitations due to flare ups and other factors, and the findings contained in the April 2013 VA examination report noted above, and considering additional functional limitations due to pain and flare-ups reported by the Veteran, the Board resolves reasonable doubt in the Veteran's favor to find that his service-connected lumbar disability has manifested in IVDS with incapacitating episodes requiring physician prescribed bed rest having a total duration of at least 4 weeks, but less than 6 weeks during a 12-month period, to warrant an increased disability rating of 40 percent for the rating period for January 28, 2013 to November 13, 2014. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board further finds that an increased rating in excess of 40 percent for the lumbar spine disability is not warranted at any time during the rating period from January 28, 2013 to November 13, 2014. The evidence of record demonstrates that the service-connected lumbar disability has not manifested in ankylosis of the entire spine or IVDS resulting in episodes of bed rest prescribed by a physician having a total duration of at least six weeks during any 12-month period (the criteria required for a 60 percent rating). The April 2013 VA examination report specifically reflects negative findings for ankylosis in the thoracolumbar spine. Although the record includes a September 2014 private examination report containing positive findings for unfavorable ankylosis of the entire spine, other prior and subsequent medical evidence of record demonstrates the lumbar spine disability has not manifested in unfavorable ankylosis of the entire spine. A June 2014 private examination report conducted just three months prior contain negative findings for ankylosis of the spine. Additionally, a November 2014 private examination report conducted just two months following the September 2014 private examination also reflect negative findings for ankylosis. Furthermore, a February 2020 VA examination report contains a VA medical opinion that explains the Veteran's lumbar spine disability has not manifested in unfavorable ankylosis of either the entire spine or entire thoracolumbar spine. The February 2020 VA examiner explains that unfavorable ankylosis occurs when the entire spine or thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in conditions such as difficulty walking due to a limited line of vision, breathing limited to diaphragmatic respiration, or restricted opening of the mouth and chewing. The VA examiner noted the Veteran's spine does not meet the definition of ankylosis as he was able to achieve 70 degrees of flexion and 10 degrees of extension during the February 2020 VA examination. X-rays taken during the February 2020 VA examination reveal that while the Veteran's thoracic spine shows signs of ankylosis, his lumbar spine does not show ankylosis other than in one sacroiliac joint. Because of the negative findings in the lumbar spine, the VA examiner concluded that it cannot be said that the Veteran's entire spine is ankylosed. Based on the foregoing, the Board finds that the weight of the evidence demonstrates the lumbar spine disability has not manifested in unfavorable ankylosis of the entire spine; thus, the Board finds that the September 2014 private examination report is of no probative value in establishing the current severity of the lumbar spine disability. For the foregoing reasons, the Board finds that for the period from January 28, 2013 to November 13, 2014, an increased 40 percent disability rating, but no higher, for the lumbar spine disability, is warranted. 38 U.S.C. §§ 1155, 5107(b); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. Rating the lumbar spine disability from November 13, 2014 to May 19, 2015 For the rating period from November 13, 2014 to May 19, 2015, the Veteran is in receipt of a 20 percent disability rating for the lumbar spine disability under Diagnostic Code 5243. See 38 C.F.R. § 4.71a. After a review of all the evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence demonstrates that, for the rating period on appeal from November 13, 2014 to May 19, 2015, the lumbar spine disability has been manifested by IVDS resulting in episodes of bed rest prescribed by a physician having a total duration of at 6 weeks during a 12-month period. Accordingly, the criteria for an increased 60 percent disability rating under Diagnostic Code 5243 have been met. A November 2014 private examination report reflects forward flexion in the lumbar spine was measured to 30 degrees or less. Additionally, the private provider noted positive findings for IVDS with episodes of flare ups that require bed rest prescribed by a physician having a total duration of at least 6 weeks during a 12-month period. The Board further finds that an increased rating in excess of 60 percent for the lumbar spine disability is not warranted for the period from November 13, 2014 to May 19, 2015. The medical evidence of record does not show unfavorable ankylosis of the entire spine (criteria for a 100 percent rating). The November 2014 private examination report discussed above reflects negative findings for unfavorable ankylosis of the spine. Furthermore, VA and private treatment records throughout the rating period from November 13, 2014 to May 19, 2015 does not reflect unfavorable ankylosis of the entire spine. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an increased disability rating for the lumbar spine disability in excess of 60 percent of the rating period from November 13, 2014 to May 19, 2015. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 3. Rating the lumbar spine disability from May 19, 2015 For the rating period from May 19, 2015 forward, the Veteran is in receipt of a 60 percent disability rating for the lumbar spine disability under Diagnostic Code 5243. See 38 C.F.R. § 4.71a. After a review of all the lay and medical evidence of record, the Board finds that, for the rating period from May 19, 2015 forward, the criteria for an increased disability rating in excess of 60 percent for the lumbar spine disability have not been met or more nearly approximated. The medical evidence of record does not show complete ankylosis of the entire spine. See October 2015 VA examination report; February 2020 VA examination report. As discussed above, the February 2020 VA examination report reflects negative findings for ankylosis and show the Veteran was able to achieve 70 degrees of flexion and 10 degrees of extension. The February 2020 VA examiner also explained how X-rays taken during the February 2020 VA examination reveal that while the Veteran's thoracic spine shows signs of ankylosis, his lumbar spine does not show ankylosis other than in one sacroiliac joint. Additionally, the February 2020 VA examiner observed the Veteran was able to bend forward while seated on the examination table to remove his shoes without assistance. VA and private treatment records throughout the rating period on appeal from May 19, 2015 also do not indicate unfavorable ankylosis of the entire spine (criteria for a 100 percent rating). For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an increased disability rating for the lumbar spine disability in excess of 60 percent for the rating period from May 19, 2015 forward. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 4. Rating depressive disorder from July 20, 2015 to February 20, 2020 For the initial rating period on appeal from July 20, 2015 to February 20, 2020, the Veteran is in receipt of a 10 percent rating for the service-connected other specified depressive disorder under Diagnostic Code 9435. 38 C.F.R. § 4.130. Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is assigned for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of 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. The use of the term "such as" in the General Rating Formula for Mental Disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "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." It was further noted that "§ 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." After a review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds that, for the initial rating period from July 20, 2015 to February 20, 2020, the service-connected depressive disorder has more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board further finds that the depressive disorder has not manifested in occupational and social impairment with reduced reliability and productivity. For these reasons, a higher initial rating of 30 percent, but no higher, under Diagnostic Code 9435 is warranted. 38 C.F.R. § 4.130. During an October 2015 VA examination, the Veteran reported symptoms of depressed mood. The Veteran denied receiving current treatment for depressive disorder but had been prescribed medication to treat his psychiatric symptoms. The Veteran endorsed very few moderate or severe psychiatric symptoms and described routine involvement with his church and frequent interaction with family members and communication with friends. The VA examiner noted that the Veteran completed the Beck Depression Inventory and his subjective symptoms of depressive disorder fell in the mild range. Furthermore, the Veteran was observed to be neatly groomed, appropriately dressed, with normal speech, attention, orientation, and logical and coherent thought process and content. Private treatment records reflect the Veteran began seeking mental health treatment in August 2016. An August 2016 private treatment record shows the Veteran endorsed anhedonia, anxiety, and increased irritability with poor sleep without suicidal thoughts or ideation. The Veteran also denied symptoms of hallucinations, delusions or other psychotic processes. The Veteran's cognitive function, short- and long-term memory were found to be intact with fair insight and fair judgment. See e.g. September 2016 private treatment record; November 2016 private treatment record; April 2017 private treatment record. Although the October 2015 VA examiner assessed the depressive symptoms caused occupational and social impairment due to mild or transient symptoms, the Board finds that the symptoms associated with the depressive disorder reflected during the Veteran's regular mental health treatment more nearly approximate the criteria for a higher initial 30 percent rating under Diagnostic Code 9435. Based on the foregoing evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the initial rating period from July 20, 2015 to February 20, 2020, the criteria for a higher initial disability rating of 30 percent under Diagnostic Code 9435 have been met. 38 C.F.R. §§ 4.3, 4.7. The Board further finds that for the initial rating period on appeal from July 20, 2015 to February 20, 2015, the lay and medical evidence of record does not demonstrate that the depressive disorder has manifested in occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, or impaired abstract thinking to warrant a higher initial 50 percent disability rating under Diagnostic Code 9435. The October 2015 VA examination report only found symptoms of depressed mood. Furthermore, private treatment records note the Veteran's cognitive function, short- and long-term memory were found to be intact with fair insight and fair judgment. Based on the foregoing, the Board finds that, for the initial rating period on appeal from July 20, 2015 to February 20, 2020, the weight of the evidence is against a higher disability rating in excess of 30 percent for the depressive disorder under Diagnostic Code 9435. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Rating depressive disorder from February 20, 2020 For the initial rating period on appeal from February 20, 2020 forward, the Veteran is in receipt of an initial 50 percent rating for the service-connected other specified depressive disorder under Diagnostic Code 9435. 38 C.F.R. § 4.130. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from February 20, 2020, the service-connected depressive disorder has manifested in symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity, and the severity of the depressive disorder has not caused occupational and social impairment with deficiencies in most areas. The Veteran underwent another VA examination in February 2020, the examination report for which reflects the Veteran endorsed symptoms of depressed mood, insomnia, psychomotor agitation, and recurrent thoughts of death without a specific plan. The Veteran reported a good home life and great relationships with his children. The VA examiner found the depressive disorder had manifested in symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The VA examiner noted the Veteran was alert and oriented, with normal eye contact, speech, and behavior, and without evidence of impairment in thought process or communication. The Veteran denied any homicidal or suicidal ideation or any audio or visual hallucinations. The Veteran endorsed having passive suicidal thoughts associated with back pain. The VA examiner assessed the depressive disorder results in occupational and social impairment with reduced reliability and productivity. The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of a higher initial disability rating in excess of 50 percent for the service connected other specified depressive disorder for the initial rating period from February 20, 2020. The evidence of record shows the unspecified depressive disorder more nearly approximates occupational and social impairment with reduced reliability and productivity, due to symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The evidence shows that the severity, frequency, and duration of the depressive disorder symptoms has not caused occupational and social impairment with deficiencies in most areas, including inability to establish and maintain effective relationships. The February 2020 VA examination report, including the Veteran's lay reports of symptoms and functional impairments recorded therein, demonstrate the Veteran has been observed to be alert, oriented and in touch with reality, without impairment of judgment, ability to communicate, or ability to understand and follow simple directions. The evidence does not demonstrate symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, impaired judgment, or near continuous panic or depression affecting the ability to function independently (criteria required for a higher initial 70 percent rating), at any time during the rating period on appeal. The Board has considered all the symptoms discussed above, including their severity, frequency, and duration. In evaluating these symptoms, the Board finds that the severity, frequency, and duration of the other specified depressive disorder are more consistent with the symptoms and degrees of social and occupational impairment contemplated by the 50 percent disability rating, and do not more nearly approximate the symptoms and degrees of social and occupational impairment contemplated for a 70 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9435. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial disability rating for other specified depressive disorder in excess of 50 percent for the initial rating period from February 20, 2020 forward. Therefore, an initial rating higher than 50 percent is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9435. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with carpal tunnel syndrome in the right and left wrists (as an organic disease of the nervous system), which is listed as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 6. Service connection for right carpal tunnel syndrome 7. Service connection for left carpal tunnel syndrome The Veteran generally asserts service connection for right and left hand numbness. Initially, the Board finds that the Veteran is diagnosed with carpal tunnel syndrome (CTS) in the right and left wrist. See June 2014 VA examination report. After a review of all the evidence, the Board concludes that, while there is a current diagnosis of CTS in the right and left wrists, which is a chronic disease under 38 C.F.R. § 3.309(a), the weight of the lay and medical evidence shows that symptoms of CTS were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service treatment records do not reflect any in service injury, complaints, symptoms, diagnosis, or treatment for CTS or any right wrist problems. A March 1972 service treatment record shows the Veteran complained of left wrist pain after falling eight days ago and was diagnosed with a left wrist sprain. Service treatment records do not reflect any further complaints, symptoms, diagnosis, or treatment for left wrist problems. An August 1977 separation examination found the Veteran's upper extremities to be clinically normal. Additionally, the Veteran did not endorse any right or left wrist symptoms on the corresponding August 1977 Report of Medical History. As such, the evidence weighs against finding chronic symptoms of right or left wrist CTS during active service. The lay and medical evidence weighs against a finding of continuous symptoms of CTS in the right and left wrist since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post service symptoms. As discussed above, neither service treatment records nor the service separation examination report indicated any history or findings for CTS in the right wrist, and service treatment records only reflect a single instance of a left wrist sprain. The Veteran did not report a history or current complaints of right or left wrist symptoms at service separation. The earliest diagnosis for CTS in the right and left wrist appears in an October 2009 private treatment record showing findings of an EMG diagnosed right and left wrist CTS, 32 years after service separation, and 31 years outside of the applicable presumptive period. On the question of direct service connection, the Board finds that the weight of the evidence shows that CTS in the right and left wrist did not have its onset during active service and is not otherwise etiologically related to active service. The weight of the evidence is against finding that the CTS in the right and left wrist is causally related to service. The weight of the evidence shows CTS in the right and left wrist had its onset after active service and that CTS in the right and left wrist was not diagnosed until 2009. The Veteran underwent a VA examination in June 2014, the examination report for which contains the VA examiner's opinion that it is less likely than not that CTS in the right and left wrists are etiologically related to service as the left wrist sprain sustained during service was treated and resolved without sequela. Instead, the VA examiner explained that the Veteran's current symptoms of bilateral hand numbness was thought to be due to his cervical neck disorder but an EMG was negative for radiculopathy and positive for right and left wrist CTS diagnosed in 2010, which is most likely causing or contributing to the symptoms in the right and left hands. The Board further finds that the current CTS in the right and left wrists were not caused or worsened beyond their normal progression by the service-connected right and left elbow epicondylitis. The Veteran underwent another VA examination in February 2020, the examination report for which contains the VA examiner's opinion that it is less likely than not that CTS in the right and left wrists were caused by the right and left elbow epicondylitis. The VA examiner explained that lateral epicondylitis, or "tennis elbow," is caused by a repetitive motion, such as swinging a tennis racket. The repeated motion damages the muscles and tendons in the forearm, causing pain and burning on the outside of the elbow, which is unlikely to cause any numbness in the hands. Furthermore, the VA examiner opined that it is less likely than not that the current CTS in the right and left wrists were worsened beyond their normal progression by the service-connected right and left elbow epicondylitis. The VA examiner included a citation to a medical article discussing how lateral epicondylitis is a musculoskeletal condition, and not a neurologic one. Thus, there is no medically reasonable mechanism by which tennis elbow could aggravate the Veteran's right and left hand numbness. As the evidence of record does not contain any competent medical opinion to the contrary, the Board finds that the weight of the evidence is against the claims for service connection for CTS in the right and left wrists under all theories, and the claims must be denied. REASONS FOR REMAND 8. A TDIU from January 28, 2013 to May 19, 2015 The Veteran asserts that his service-connected lumbar spine disability and other specified depressive disorder prevent him from obtaining or maintaining substantially gainful employment. See August 2015 VA Form 21-8940. As noted above, a TDIU as been awarded from May 19, 2015 in a February 2019 rating decision. However, the period on appeal for the issue of an increased rating for the lumbar spine disability dates back to January 28, 2013 at the earliest. Therefore, the issue of entitlement to a TDIU, for the period from January 28, 2013 to May 19, 2015, is on appeal before the Board as part and parcel of the increased rating matters on appeal. See Harper v. Wilkie, 30 Vet. App. 345 (2018); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For the period starting from January 28, 2013, the Veteran has been service-connected for the following disabilities: lumbar spine disability (40 percent disabling); right lower extremity radiculopathy (10 percent disabling); left lower extremity radiculopathy (10 percent disabling); right elbow epicondylitis (0 percent disabling); left elbow epicondylitis (0 percent disabling); chronic otitis externa (0 percent disabling); maxillary sinusitis (0 percent disabling); and hemorrhoids (0 percent disabling). Although the Veteran's service connected disabilities do not meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU, the evidence of record suggests that the Veteran may have been unemployable due to service connected disabilities for this period. See e.g. January 2013 VA Form 21-526 (Veteran stated he was required to retire in 1989 due to lower back pain); April 2013 VA examination report (the Veteran reported he stopped working due to lower back pain and had not been employed since 1989). The issue of TDIU from January 28, 2013 to May 19, 2015 is REMANDED for the following action: In accordance with 38 C.F.R. § 4.16(b), refer the issue of TDIU to the VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service for adjudication of TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.