Citation Nr: 0634877 Decision Date: 11/09/06 Archive Date: 11/27/06 DOCKET NO. 03-17 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to higher ratings for disability of the right knee, assigned a 10 percent rating from December 21, 1999, to January 24, 2006, based on instability, a 10 percent rating from January 25, 2006, for limitation of flexion, and a separate 30 percent rating from January 25, 2006, for limitation of extension. 2. Entitlement to an initial rating in excess of 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from September 1982 to August 1986. He is a biological male who lives as a female and will be referred to as a female in this decision. This case came before the Board of Veterans' Appeals (Board) on appeal of a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, AR; and a June 2000 rating decision of the RO in Seattle, Washington. Jurisdiction over the claims folders was subsequently transferred to the RO in Pittsburgh, PA. In May 2005, the Board remanded the case to the originating agency for further development. While the case was in remand status, the veteran's appeal for service connection for back disability was resolved by a March 2006 rating decision granting service connection for this disability. While this rating decision also granted a separate 30 percent rating for limitation of extension of the veteran's right knee, this grant did not satisfy the veteran's appeal with respect to her right knee disability. FINDINGS OF FACT 1. During the period prior to August 29, 2000, the veteran had no significant limitation of flexion of her right knee and no X-ray evidence of arthritis; any instability of her right knee during this period did not more nearly approximate moderate than slight. 2. During the period beginning August 29, 2000, the veteran has had no instability or recurrent subluxation of her right knee and the limitation of flexion of her right knee during this period has not more nearly approximated limitation to 30 degrees than limitation to 45 degrees. 3. During the period prior to January 25, 2006, there was no limitation of extension of the veteran's right knee. 4. During the period beginning January 25, 2006, extension of the veteran's right knee has not been limited to more than 25 degrees. 5. The veteran's right knee does not lock. 6. Throughout the initial evaluation period, the veteran's PTSD has been manifested by occupational and social impairment that most nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The veteran's right knee does not warrant more than one 10 percent rating during the period prior to January 25, 2006, or more than a 10 percent rating and a separate 30 percent rating during the period beginning January 25, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5258, 5260, 5261 (2005). 2. The criteria for a 30 percent evaluation for PTSD have been met throughout the initial evaluation period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2005), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's claims were initially adjudicated prior to the enactment of the VCAA in November 2000. She was provided notice required by the VCAA and the implementing regulation in a letter mailed in June 2005. Although the originating agency has not specifically requested the veteran to submit all pertinent evidence in her possession, it has informed her of the evidence that would be pertinent and requested her to submit such evidence. Therefore, the Board believes that the veteran was on notice of the fact that she should submit any pertinent evidence in her possession. After notice was provided, the veteran was afforded ample time to submit and identify pertinent evidence. In addition, by letter dated in June 2006, the veteran was provided appropriate VCAA notice concerning the effective-date element of her claims. The record reflects that VA assisted the veteran by obtaining service medical records and post-service treatment records. In addition, she has been afforded appropriate examinations. In an October 2005 statement, the veteran stated that she had stopped actively seeking treatment for her daily pain due to "privacy" concerns. Neither the veteran nor her representative has identified any available, outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any such available evidence. In particular, the Board notes that the originating agency did attempt to obtain any pertinent records in the possession of the Social Security Administration but was informed by that agency that it was unable to locate any records for the veteran. Accordingly, the Board is also satisfied that VA has complied with the duty to assist provisions of the VCAA and the implementing regulation. Following the completion of all indicated development of the record, the originating agency readjudicated the veteran's claims. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claims. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2006) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. Service connection for a right knee disability was awarded by rating decision in February 1987 as the evidence showed that the veteran had residuals of an in-service injury to her right knee. A 10 percent disability evaluation was initially awarded. However, by subsequent rating action in May 1990, the disability rating was reduced to noncompensable. A July 1999 VA outpatient treatment record notes that the veteran was a trans-gender female. She complained of a recent increase in anxiety episodes. She had been taking oxazepam on a regular basis; however, it had not been helping. The veteran was subsequently referred to the psychiatric department. In August 1999, the veteran underwent a psychiatric consultation. It was noted that she was a biological male who was awaiting sex change surgery. She was working as an insurance agent. She reported experiencing panic attacks since the mid-1980s after being assaulted in the head by a fellow Marine. She reported having panic attacks several times per week; however, they had decreased since her switch to antidepressants. She denied a history of suicide attempts or psychiatric admissions for mood problems. On examination, the veteran was mildly anxious. She complained of ongoing recurrent nightmares of being attacked, trapped, or chased. She also had frequent intrusive thoughts of being assaulted. She also described discreet anxiety attacks where she could not concentrate, had a sense of dread, felt a throbbing in her head, experienced dry mouth and palpitations, and thought something bad was going to happen. These symptoms went away with medication. She denied suicidal ideation. Her energy level had been a problem and her sleep was fair. She stated that she had continuous hyperstartle responses and intrusive thoughts, but denied paranoid ideation or hypervigilance. Her speech was well-organized with no unusual thought content. She appeared to be cognitively intact. The examiner noted that the veteran had what sounded like a history of panic disorder; however, when questioned further, she related a fairly substantial trauma history. The veteran had reported being sodomized as a child by a neighbor. The pertinent diagnoses were panic disorder with agoraphobia and gender dysphoria. PTSD related to childhood sexual abuse was to be ruled out. A Global Assessment of Functioning (GAF) score of 60 was assigned. Subsequent treatment records dated from August to September 1999 note that the veteran reported anhedonia symptoms, low energy, depressive symptoms such as crying and some generalized feelings of hopelessness. She had no active suicidal ideations. She still continued to have recurrent nightmares of being attacked, but those were somewhat better. The pertinent diagnoses were gender dysphoria, dysthymic disorder, pain disorder, panic disorder with agoraphobia, and rule out PTSD related to childhood sexual abuse and alleged assault during active duty. In October 1999, the veteran was hospitalized after having superficially cut her wrists with a razor. She was note to have ambivalent suicidality. This was noted to be the veteran's first reported self-mutilation attempt. The veteran reported that she was not attempting to kill her self, and reported that the incident was "stupid." Her primary stressor, which she perseverated on, was that she might lose her job as an insurance agent due to her low back disability and status as a transsexual. She had poor social supports and lived alone. Mental status examination revealed that the veteran was cooperative and ambivalent. Her speech was not pressured. Her mood was confused and her affect was ambivalent and dysthymic. Her thought process was linear, but she was preoccupied with losing her job. She had no homicidal ideations, auditory hallucinations, visual hallucinations, paranoia, thought insertion (TI), or thought broadcasting (TB). She endorsed most neurovegetative symptoms of depression including anhedonia, low energy, poor concentration, sleep problems, etc. She was alert and oriented times three. Her insight and judgment were poor. The diagnoses included major depressive disorder, PTSD, and rule out anxiety disorder. A GAF score of 35 was assigned. An October 1999 follow-up outpatient treatment record notes that the veteran was taking citalopram daily and reported no further anxiety attacks. She was feeling a fairly good amount of support from her coworkers. She had no suicidal ideation and wanted to return to work. In November 1999, the veteran was noted to be less anxious and depressed with a reduction in her anhedonia symptoms. She had returned to work and reported genuine support from many of her coworkers. She still had some mild sleep disturbance, but denied suicidal ideation. Similarly, in December 1999, she reported no further panic attacks and denied suicidal ideation. She reported continued chronic nightmares of her 1985 assault as well as mood dysphoria. The veteran submitted her claims for service connection for PTSD and a compensable evaluation for her service-connected right knee disability in December 1999. A February 2000 psychiatric treatment record notes that the veteran had broken up with her boyfriend. Despite recent crisis in her personal life, she felt ready to progress toward working full time. She was not currently suicidal, but had some mild panic problems. She also reported some recent increase in sleep disturbance. In conjunction with her claim for service connection, the veteran was afforded a VA psychiatric examination in April 2000. After examining the veteran and reviewing the claims folders, the examiner opined that the veteran had several psychiatric disabilities including major depression, occasional tetrahydrocannabinol (THC) use, panic disorder, PTSD, and gender identity disorder. The veteran's PTSD was felt to be related to her military assault. Her major problems related to the assault were nightmares that came three to four times a month. She awoke feeling very stressed and stated that she has the feeling that she is trapped and being assaulted. She reported trouble feeling close to people and had fears about being assaulted. However, she viewed herself as a person who could get along well with people and she reported good talents at arbitration. On examination, the veteran seemed a little bit sad about her situation in that she was having financial difficulties and had to leave the area. Her thought processes were well organized. There was no evidence of any kind of hallucinations or delusions. The veteran was oriented times three with intact memory. On tests of intellectual functioning, she did quite adequately and she was also able to abstract well. The examiner noted that it was very hard to factor out just where her in-service assault fit into her current psychiatric condition. The veteran's GAF score related to the assault was in the range of 60 to 65. The examiner acknowledged that the veteran had prior GAF scores lower than this; however, the lower overall GAF score was attributed to things other than PTSD. It was noted that the veteran's trouble in life involving work and relationships could not certainly all be attributed to her in-service assault. The veteran was also afforded a VA orthopedic examination in April 2000. She reported that her right knee pain was always at least mild and that the pain was moderate to severe with any weight-bearing activity or lifting as well as with stair walking. She experienced locking in extension which resolved spontaneously. Her knee swelled when her pain was most severe. She also complained of muscle weakness of the right leg due to decreased exercising due to knee pain. She described joint noise and stiffness, but denied any incoordination or loss of motion due to pain. She reported fatigability and took Motrin and Vicodin when the pain was most severe. On examination, she displayed a mildly antalgic gait bilaterally. There was no obvious deformity or muscle atrophy. There was no swelling. However, medial joint line tenderness was noted on palpation. Deep tendon reflexes were 2 out of 4. Mild pain with patellofemoral compression was observed. There was a patellofemoral pop with range of motion. McMurray's sign was negative and range of motion was from 0 degrees of extension to 130 degrees of flexion. Motor examination was 4 out of 5 due to decreased effort because of right knee pain. Anterior drawer sign was negative. The examiner noted minimal ligamentous laxity over the medial and lateral collateral ligaments. The pertinent diagnosis was mild ligamentous laxity of the right knee. X-rays of the right knee taken in connection with the examination were unremarkable with maintained joint space, no effusion, and no soft tissue abnormalities. Thereafter, by rating action in May 2000, the RO granted service connection for the veteran's PTSD with assignment of a 10 percent disability evaluation. In May 2000, the veteran underwent a VA psychiatric evaluation after fighting with her foster sister, J.R. The veteran had recently moved to live with J.R. from out of state in hopes of finding a new job. The veteran was anxious and upset and had been having frequent panic attacks consisting of dyspnea, chest pounding, racing thoughts, fear, and anxiety. She reported almost nightly vivid recollections of her in-service assault. The veteran was admitted to a domiciliary program as she had no place to go. J.R. reported that the veteran was "seriously ill" and "schizophrenic." She reported that the veteran had at least 2 or 3 personalities. J.R. reported that she and the veteran had been arguing continuously since the veteran's arrival. The veteran reported never feeling happy since her adolescence. She had occasional periods of worsening depression. She denied mild dissociative features with no report of auditory or visual hallucinations or delusions. She reported that she thought of suicide daily. The last time she acted on these thoughts was in March 2000 when she took 6 to 8 Vicodin with vodka. She immediately threw them up and called her therapist. According to J.R., the veteran had tried suicide 4 times in 8 hours by accelerating the car they were in toward other cars voicing suicidal intent. However, the veteran denied suicidal intent or homicidal behavior or desires. The veteran reported rare THC use, but J.R. reported the veteran was "hopped up on drugs" including medication received through VA and crack. However, J.R. acknowledged that she had not witnessed any actual illicit drug use. Psychiatric evaluation revealed that the veteran did not meet the schedular criteria for PTSD. Rather she had long standing issues related to gender identify disorder, depression, and anxiety. It was felt that the veteran's occupational, social, and emotional distress and instability were predominately a function of characterological issues rather than symptoms related to her in-service assault. It was noted that she was alert and oriented times 3. She was cooperative and noticeably anxious. There was a slight tremor in her extremities and voice that was appreciable at times. There was no evidence of agitation or retardation. Her speech was fluent and organized without neologisms or inappropriate word usages. Her mood was nervous and her affect was plaintively anxious. Her thoughts were generally linear and goal directed, but she had a clear tendency toward circumstantial, overly detailed, and poorly informative stories. There was no evidence or report of auditory or visual hallucinations and the veteran denied delusions or persecution, control, or special powers. Insight was poor. The veteran's transgender issue was often "used as a foil to avoid issues" such as the loss of her job. Her judgment lacked strong long-term planning. Her attention and cognition were fair. The examiner noted that the veteran presented with a "diagnostic challenge." While the veteran described the same dream repeated over and over, the examiner noted the absence of hyperarousal or hypervigilance. This made the examiner suspect that this was a "factitious process." Despite J.R.'s statement that the veteran was very suicidal and dangerous, the examiner noted the veteran's statements and behavior suggested otherwise. It was noted that if the veteran were suicidal, she would not have admitted herself to the hospital spontaneously and then minimized her suicidal thoughts. At her age and with her history, she had ample opportunity to engage in more serious suicidal behavior, but had not despite chronic, essentially unchanged intensity of suicidal thoughts. Thus, the examiner questioned the creditability of J.R.'s statements regarding potential dangerousness. In the June 2000 rating decision on appeal, the RO awarded a 10 percent disability rating based upon mild instability of the right knee. An August 2000 outpatient psychiatric treatment record notes that the veteran had a wide variety of psychiatric diagnoses and was seen mainly for management of her gender dysphoria and PTSD. The veteran reported that she was not sleeping and had a depressed mood, but she denied any active suicidal thoughts. An August 2000 outpatient treatment record notes that the veteran reported that she had had significant right knee pain since injuring her right knee in 1984. She reported occasional crepitus, locking, and increased pain with activity and stairs. She denied any history of giving way. She had been treated with nonsteroidal anti-inflammatory medication which she found to be ineffective. She was currently taking hydrocodone which was marginally effective. The veteran reported very good quadriceps and hamstring strength. Neurologic examination of the lower extremities revealed symmetric 1+ reflexes and 4+-5/5 strength in the hip flexors, quadriceps, anterior tibial, extensor hallucis longus, and gastrocnemius complex. Her gait was unremarkable. She had some medial joint line tenderness in the right knee, but the lateral joint line was nontender. There was no obvious effusion and patellar tracking was normal. The knee was stable to varus valgus, anterior and posterior stress testing. McMurray's sign was negative. X- rays revealed some mild degenerative joint disease of the knee with mild joint space narrowing. The examiner felt that the veteran had some mild degenerative joint disease. She might also have a meniscal tear or lose body given her history of locking. However, this was considered less likely given the fact that McMurray's sign was negative. A May 2001 neurological progress note indicates that the veteran had a mildly antalgic gait with a normal station. She had a slightly heavy build with normal reflexes. In October 2001, the veteran was afforded a VA orthopedic examination. She rated her pain as 9 out of 10 with flare- ups in the morning and later afternoon. Her baseline level of pain was 4 out of 5. Rest seemed to alleviate the symptoms. She did not current use a brace, cane, or other assistive device. Examination of the right knee revealed 0 to 10 degrees of extension and 0 to 125 degrees of flexion with no varus valgus or anterior posterior instability. While she complained of pain with valgus stress, there was no evidence of any "booking open" of the joint medially. There was very minimal tenderness over the medial and lateral joint lines with no evidence of any significant effusions. The pertinent diagnosis was chronic MCL strain with mild degenerative joint disease of the right knee. The examiner opined that with flare-ups, the veteran could expect a decrease in range of motion of as much as 5 to 10 percent of her current range of motion. In October 2001 a VA psychologist reviewed the veteran's claims folder and examined the veteran. The examiner did not feel that the veteran had PTSD. The examiner questioned the veteran's claimed stressor noting that while the veteran reported having intense feelings of fear during the assault, she did not report that she feared for her life or physical integrity. While she endorsed 4 criteria listed under criterion C of the DSM-IV, 2 of the 4 criteria were noted to predate her military service. These were her markedly diminished participation in significant activities and her estrangement from others. While the veteran endorsed 2 criteria listed under criterion D, they might have existed prior to her military service. It was further noted that her responses to psychological testing indicated an exaggeration of symptoms which was inconsistent with a true presentation of PTSD. The pertinent diagnoses were major depression and gender identify disorder. In October 2002, the veteran sought VA inpatient psychiatric treatment after complaining that she wanted to shoot herself. She reported that at 3:30 that morning she heard something outside her apartment. She discovered that someone was hooking up a tow truck to her pickup truck and attempting a repossession. She grabbed a loaded gun, but by the time she got outside, the tow truck had gone. At that time, she started to have thoughts of killing herself. She reported that she had become hypervigilant with increased anxiety, decreased enjoyment, low self esteem, hopelessness, and worthlessness. She denied mania symptoms, psychotic symptoms, obsessive compulsive symptoms or eating disorders. On mental status examination, she was alert and oriented times three. Her affect was flat and her mood was sad. Her speech was clear and goal oriented. Her thought content was intact with no evidence of psychosis. At the time of her discharge from the hospital a week later, the veteran denied thoughts of suicide or homicide. The pertinent diagnoses were depressive disorder, not otherwise specified; gender identity disorder; and tetrahydrocannabinol abuse. The veteran underwent a VA psychiatric examination in January 2006. She was unemployed and supported herself with Social Security disability benefits. She stayed in her apartment most of the time and did not go out very often. She was not married and was not currently in a romantic relationship. However, she reported having several acquaintances. She spent most of her time watching television or using her computer. She did not have any social activities or hobbies. Her activities appear to have been limited following the repossession of her truck. She reported being arrested for unknown reasons and jailed in a suicide watch room for several days. She smoked marijuana once a week. She reported constant nightmares, avoidance, occasional dissociative experiences, diminished interest, emotional detachment, restricted range of affect, sleep problems, difficulty concentrating, hypervigilance, and exaggerated startle response. She also described marked mood reactivity and lability including chronic suicidal ideation. She reported an extreme difficulty trusting others. On examination, the veteran appeared to be pleasant, polite, and cooperative. Her eye contact was intermittent and she would frequently look away when describing her symptoms of difficult past experiences. Her rhythm, rate, and volume of speech were within normal limits. Her mood was depressed, and she was quite anxious during the interview. She had full range of affect and endorsed chronic passive suicidal ideation, but did not endorse active suicidal ideation, plan, or intent. She denied homicidal ideation, auditory hallucinations, or visual hallucinations. Her thought content was appropriate and her thought process was goal directed. No impairment in communication was noted. The examiner diagnosed mild PTSD, major depressive disorder (unrelated to military service), gender identify disorder, and a personality disorder, not otherwise specified, with borderline histrionic features. The veteran's GAF score based on PTSD was 60 while her overall GAF was 40. The examiner opined that the severity of the veteran's PTSD had not worsened compared to prior examinations. Her worsening overall level of functioning appeared to be related to an increase in symptoms of her nonservice connected depressive disorder and personality disorder. The severity of her PTSD alone did not render her unemployable. The most recent medical evidence addressing the severity of the veteran's right knee disability consists of a January 2006 VA examination report. At that time, the veteran reported pain, weakness, and stiffness, but no swelling. She reported heat, giving way, and fatigability, but no locking. Past physical therapy had not helped. She reported exertion caused flare-ups with her symptoms being pain. This occurred for about 10 to 15 minutes. She normally walked with a cane. She had no history of dislocation of subluxation. Examination of her right knee revealed tenderness on the medial side of the knee and at the medial joint line and MCL area. Range of motion was from -5 degrees of extension to 120 degrees of flexion. She had minimal effusion with no warmth. Lachman's, anterior drawer, and McMurray's testing were negative and the veteran was stable to varus and valgus stress. She had a normal patellar glide. Repetitive range of motion produced pain, fatigue, weakness, lack of endurance, and incoordination. Pain was the most significant factor decreasing her range of motion from -25 degrees of extension to 90 degrees of flexion. X-ray studies of the right knee showed no signs of osteoarthritis. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2006). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2006). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §§ 3.102, 4.3 (2006). Right Knee Disability Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, or a 40 percent evaluation if extension is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2006). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Further, VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The veteran contends that her right knee disability has increased in severity. She reports constant pain and discomfort in her knee. She also describes weakness, locking, and giving way in her knees. She described joint noise and stiffness in April 2000. At various times, she has complained of locking, give way, and swelling. Despite her complaints, the medical evidence uniformly shows that prior to January 25, 2006, she had no limitation of extension of the right knee. Therefore, the Board concludes that a compensable rating is not warranted under Diagnostic Code 5261, prior to January 25, 2006. The greatest degree of limitation of extension is demonstrated by the report of the VA examination performed on January 25, 2006. At that time, the examiner determined that extension of the knee was initially limited to 5 degrees but testing to determine the extent of additional limitation due to the DeLuca factors set forth above disclosed limitation of extension to 25 degrees. It is for this reason that the veteran was granted a 30 percent rating effective January 25, 2006. There is no objective evidence of limitation of extension to more than 25 degrees. Accordingly, a rating in excess of 30 percent is not warranted during the period beginning January 25, 2006. On the April 2000 VA examination the veteran was noted to have minimal or mild laxity. When she was seen by VA on an outpatient basis on August 29, 2000, no laxity or instability was found. In fact no objective evidence of lateral instability or recurrent subluxation has been found since the VA examination in April 2000. On no occasion pertinent to this claim has the veteran been found to have lateral instability or recurrent subluxation that more nearly approximates moderate than slight. Accordingly, the Board concludes that the disability does not warrant more than a 10 percent rating under Diagnostic Code 5257 during the period prior to August 29, 2000, or a compensable rating under that code during the period beginning August 29, 2000. During the period prior to August 29, 2000, there was no X- ray evidence of arthritis in the veteran's right knee. In fact, an X-ray study in April 2000 was negative. The veteran was able to flex her knee to 130 degrees at the April 2000 examination. Although there was slight weakness noted at the examination, there was no assessment of any additional functional impairment due to the DeLuca factors. There is simply no appropriate basis for concluding that the veteran had limitation of flexion approaching the compensable level (limitation to 45 degrees) during the period prior to August 29, 2000. An X-ray study on August 29, 2000, did disclose what was considered evidence of arthritis, although a more recent X- ray study did not. In any event, there is no objective evidence during the period beginning August 29, 2000, of sufficient limitation of flexion to warrant more than a 10 percent evaluation. When the veteran was seen on an outpatient basis on August 29, 2000, range of motion testing was not done. In October 2001, she had 125 degrees of flexion that was estimated to decrease by 5 to 10 percent during flare-ups. Most recently, in January 2006, she had 120 degree of flexion with minimal effusion and no warmth. Repetitive range of motion produced pain fatigue, weakness, lack of endurance, and incoordination limiting flexion to 90 degrees. Thus, even when all pertinent disability factors are considered, it is clear that the limitation of flexion of the knee during the period beginning August 29, 2000, has not more nearly approximated the limitation to 30 degrees required for a higher evaluation than the limitation of flexion to 45 degrees contemplated by a 10 percent evaluation. Notwithstanding the veteran's contention that her knee locks, there is no objective evidence of locking of the knee. Therefore, the disability does not warrant a 20 percent rating under Diagnostic Code 5258. The Board has considered whether there is any other basis for granting a higher or separate compensable evaluation but has found none. PTSD PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides that a 10 percent rating is warranted for occupation 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 if symptoms are controlled by continuous medication. A 30 percent rating is warranted 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. In assessing the evidence of record, it is important to note that the GAF score is based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 41-50 is assigned where there are, "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 is appropriate where there are, "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co- workers)." Id. A score of 61-70 is indicated where there are, "Some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. On review of the record, the Board concludes that the veteran's PTSD more nearly approximates the criteria for a 30 percent evaluation than the level of impairment required for a 10 percent rating. In reaching this conclusion, the Board observes that the veteran's PTSD has been manifested by nightmares of being attacked, trapped, or chased as well as frequent thoughts of being assaulted. She also has a history of suicidal ideation. There is also indication in the medical evidence of depressed mood, anxiety, suspiciousness, panic attacks, due in part to her PTSD. During her most recent examination, she reported constant nightmares, avoidance, diminished interest, emotional detachment, restricted range of affect, sleep problems, difficulty concentrating, hypervigilance and exaggerated startle response. With regard to whether the veteran's PTSD more nearly approximates the criteria for a 50 percent evaluation, the Board notes that the veteran has been diagnosed with psychiatric disorders in addition to PTSD, including a gender identity disorder. In January 2006, a VA psychiatrist, after reviewing the claims folder and interviewing the veteran, opined that the veteran's PTSD was mild. Despite having a flat affect during examination in May 2002, she had a full affect during her most recent examination in January 2006. While the veteran was noted to have a history of panic attacks, a December 1999 treatment record notes that she no longer had them and in February 2000 she was noted to have a mild panic problem. While she was noted to have frequent panic attacks in May 2000, the subsequent VA examination in October 2001 and January 2006 do not show complaints of panic attacks. Furthermore, there is no evidence of significantly impaired concentration due to PTSD or impaired memory. In April 2000 her memory was intact. While the veteran has been noted to display poor judgment in the past, her thought processes were noted to be linear and goal directed in May 2000. In May 2002, she denied mania symptoms or psychotic symptoms and her thought content was intact. Finally, she was noted to have appropriate thought content and goal directed thought processes in January 2006. At that time, the veteran was noted to have several acquaintances. The examiner felt that her recent increase in activity limitation was due to the repossession of her truck. A GAF of 60 was assigned for PTSD and represents moderate symptoms or impairment. This is consistent with the GAF of 60 to 65 attributed to the veteran's PTSD in April 2000. While the veteran was noted to have a lower GAF of 35 in October 1999, the Board notes that this GAF score was measured in connection with her hospitalization. Treatment records shortly after her discharge show that she reported no further anxiety attacks and was feeling a great deal of support from others. Furthermore, in November 1999, she reported being less anxious and depressed with her anhedonia symptoms. In light of the discussion above, the Board concludes that the veteran's PTSD warrants a 30 percent rating, but not higher, throughout the initial evaluation period. (CONTINUED ON NEXT PAGE) ORDER The Board having determined that the veteran's right knee disability warrants no more than one 10 percent rating during the period prior to January 25, 2006, and no more than a 10 percent rating for limitation of flexion and a separate 30 percent rating for limitation of extension during the period beginning January 25, 2006, the benefit sought on appeal is denied. A 30 percent disability rating, but not higher, is granted for PTSD throughout the initial evaluation period, subject to the criteria applicable to the payment of monetary benefits. ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs