Citation Nr: 1039395 Decision Date: 10/21/10 Archive Date: 10/27/10 DOCKET NO. 06-07 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased evaluation for a left tibia stress fracture with left knee chondromalacia, currently evaluated as 10 percent disabling. 2. From December 20, 2002, to November 7, 2007, entitlement to an initial rating in excess of 50 percent for an adjustment disorder with depressed mood. 3. Since November 8, 2007, entitlement to an initial rating in excess of 70 percent for an adjustment disorder with depressed mood. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active service from February 1997 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2000, March 2001, August 2001, July 2003, March 2005, June 2005, October 2005, and December 2007 rating decisions of the Department of Veterans Affairs Regional Office (RO) in North Little Rock, Arkansas. In several statements, the Veteran requested a videoconference hearing with a member of the Board. In documents filed after these statements, including several substantive appeals to the Board, the Veteran has indicated that he does not want a hearing. Based upon these later documents, the Board finds that the Veteran has withdrawn his earlier request for a hearing and will proceed with this appeal. In April 2008 and April 2009 the Board remanded the left tibia stress fracture claim for additional development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. FINDINGS OF FACT 1. Throughout this appeal, the Veteran's left tibia stress fracture has resulted in no more than a slight knee disability. The Veteran's left knee chondromalacia has been manifested by flexion limited to 60 degrees and normal extension of the left knee. He does not have instability or ankylosis of his left knee. 2. Since December 20, 2002, the Veteran's adjustment disorder with depressed mood was productive of occupational and social impairment with deficiencies in most areas, but has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's left tibia stress fracture with left knee chondromalacia are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes (DCs) 5262-5261 (2010). 2. From December 20, 2002, to November 7, 2007, the criteria for a 70 percent initial disability rating, but no higher, for the Veteran's adjustment disorder with depressed mood have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DCs 9499-9440 (2010). 3. Since November 8, 2007, the criteria for an initial rating in excess of 70 percent for an adjustment disorder with depressed mood are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DCs 9499-9440 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and, (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in May 2000, July 2000, May 2001, February 2003, October 2003, April 2004, November 2004, February 2005, June 2005, August 2005, March 2008, May 2008, and May 2009 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. Letters dated in November 2006, March 2008, May 2008, May 2009, and December 2009 also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should his claims be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. The majority of the Veteran's duty-to-assist letters were not provided before the initial adjudication of his claims. However, since providing the additional notices, the RO/AMC has gone back and readjudicated his claims in the May 2002, July 2004, June 2006, and July 2008 statement of the cases (SOCs) and in the July 2004, March 2005, July 2006, August 2008, December 2009, and March 2010 supplemental SOCs (SSOCs) based on any additional evidence received in response to that additional notices and since the initial rating decisions at issue and SOCs. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claims, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claims, including in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of his claims. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues have been obtained. His STRs and post- service treatment records, including his records from the Social Security Administration (SSA), have been obtained. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. He has been afforded VA examinations. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. In regards to the Veteran's left tibia stress fracture with left knee chondromalacia claim, the Board is also satisfied as to substantial compliance with its April 2008 and April 2009 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included scheduling the Veteran for another VA examination (which he had in June 2008), sending the Veteran an additional VCAA notice letter (which was sent in May 2009), allowing him an opportunity to submit additional medical or other evidence in response, and then readjudicating his claim in a SSOC (which was completed in December 2009). Left Tibia Stress Fracture with Left Knee Chondromalacia Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or DCs are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that an unappealed rating decision of April 1999 granted service connection for the Veteran's left tibia stress fracture with left knee chondromalacia. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran is currently in receipt of a 10 percent evaluation for his left tibia stress fracture with left knee chondromalacia under DCs 5262-5261. 38 C.F.R. § 4.71a. DC 5262 provides the criteria for impairment of the tibia and fibula, which assigns a 10 percent evaluation for malunion with a slight knee or ankle disability. A 20 percent evaluation is assigned for malunion with a moderate knee or ankle disability. 38 C.F.R. § 4.71a. Abnormalities of the bone incident to trauma, such as malunion with deformity throwing abnormal stress upon the joints, should be shown by X-ray and observation evidence and should be carefully related to the strain on neighboring joints. 38 C.F.R. § 4.44. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in VA's Rating Schedule. And rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. That is to say, use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. DC 5261 assigns a 10 percent evaluation for extension of the knee limited to 10 degrees. A 20 percent evaluation is assigned for extension limited to 15 degrees. 38 C.F.R. § 4.71a. A higher rating may be awarded based on functional loss due to pain, under 38 C.F.R. § 4.40, or based on weakness, fatigability or incoordination of the leg, pursuant to 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). Under DC 5262, the Board finds no evidence of malunion of the tibia and fibula that has resulted in a moderate knee or ankle disability. X-rays taken in June 2000, December 2000, and June 2008 showed that the Veteran had a focal cortical thickening of the lower aspect of the left tibia. However, the radiologists described this thickening as minimal or minor, and noted that the Veteran did not have any significant bone or joint pathological changes. Additionally, throughout his appeal, the Veteran has demonstrated normal extension of his knee, and slight limitation of motion on flexion (to 60 degrees on the left rather than the normal 140 degrees, even considering his pain, which only meets the requirements for a minimum noncompensable rating of zero percent under DC 5260). Therefore, the Board finds that the Veteran has a malunion of the tibia with a slight knee disability, as opposed to a moderate knee disability. Additionally, the evidence of record does not establish that the Veteran has an ankle disability due to his left tibia stress fracture. Thus, the Veteran is not entitled to a higher 20 percent rating under DC 5262 for his left tibia stress fracture with left knee chondromalacia. 38 C.F.R. § 4.71a. Under DC 5261, none of the criteria required for a higher 20 percent rating were diagnosed or objectively noted. Specifically, the Veteran's extension of the knee has never been limited to 15 degrees. In fact, the VA examinations and the treatment notes of record demonstrate that throughout his appeal the Veteran has demonstrated normal extension of his left knee. Thus, the Veteran is not entitled to a higher 20 percent rating under DC 5261 for his left tibia stress fracture with left knee chondromalacia. Id. The Board also has considered other possible DCs. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in diagnostic code by a VA adjudicator must be specifically explained). The Veteran's X-rays of the left knee have not demonstrated degenerative changes or arthritis. Therefore, DCs 5003 and 5010 are inapplicable. 38 C.F.R. § 4.71a. Under DC 5260, a 0 percent disability rating is warranted when flexion is limited to 60 degrees. A 10 percent disability rating is warranted when flexion is limited to 45 degrees. A higher 20 percent disability rating is warranted when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a. The evidence does not support more than a 10 percent rating under DC 5260 since the Veteran had only slight limitation of motion on flexion (to 60 degrees on the left rather than the normal 140 degrees, even considering his pain, which only meets the requirements for a minimum noncompensable rating of zero percent under DC 5260). Under DC 5257, for "other" knee impairment, a 10 percent rating is warranted for "slight" recurrent subluxation or lateral instability. A higher 20 percent rating requires "moderate" recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DC 5003- 5010 (for the arthritis) and DC 5257 (for the instability) based on additional disability. It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (flexion) or DC 5261 (extension). Hence, if a claimant has a disability rating under DC 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under DC 5003-5010. Likewise, if a claimant has a disability rating under DC 5003 for arthritis of the knee, and there is evidence of instability, a separate rating is available under DC 5257. See VAOPGCPREC 9-98 (August 14, 1998) (clarifying that, to receive separate ratings on this basis, the Veteran must at least have sufficient limitation of motion to meet the threshold minimum requirements for a zero percent rating under either DC 5260 or DC 5261, for flexion or extension respectively, or have pain causing additional limitation of motion to at least these extents). It is also possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). The evidence of record demonstrates that the Veteran may not receive a separate rating under DC 5257. Although the Veteran reports experiencing instability in the knee, his knee has consistently been described as stable when examined. The Board finds the observations of his examining physicians to be of greater probative value than those of the Veteran in this regard. At both his January 2005 and June 2008 VA examinations, the VA examiners found that the Veteran did not have instability or subluxation in his left knee. Further, DC 5256 (for ankylosis of the knee) is not applicable because the medical evidence does not show the Veteran has this type of impairment. Ankylosis, incidentally, favorable or unfavorable, is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Because the Veteran is able to move his left knee joint, by definition, it is not ankylosed. There was evidence of pain on motion following repetitive use of the left knee at the June 2008 VA examination. However, the Veteran is not entitled to a higher evaluation under DeLuca because there is no objective medical evidence that more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, or deformity or atrophy from disuse cause functional loss sufficient to meet the criteria for a 20 percent evaluation. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca, 8 Vet. App. at 204-08. The Veteran's lay testimony concerning the severity of his left tibia stress fracture with left knee chondromalacia is unsubstantiated and, thus, probatively outweighed by the objective medical findings to the contrary. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). See also 38 C.F.R. § 3.159(a)(2); Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See, too, Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). Additionally, the Veteran has never met the requirements for a higher rating since one year prior to filing his claim, so the Board cannot "stage" this rating under Hart v. Mansfield, 21 Vet. App. 505 (2007). Under these circumstances, the overall evidence does not meet or approximate the criteria for a disability rating in excess of 10 percent for left tibia stress fracture with left knee chondromalacia under 38 C.F.R. § 4.71a, DCs 5262-5261. Throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by a 10 percent evaluation. For all of these reasons, the Veteran's claim must be denied. Adjustment Disorder with Depressed Mood Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or DCs are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that in August 2005 the Veteran expressed disagreement with the March 2005 decision that granted him service connection for his adjustment disorder with depressed mood. As such, the Veteran has appealed the initial evaluation assigned and the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). From December 20, 2002, to November 7, 2007, the Veteran is in receipt of a 50 percent disability rating under 38 C.F.R. § 4.130, DCs 9499-9440 for his adjustment disorder with depressed mood. Since November 8, 2007, the Veteran is in receipt of a 70 percent disability rating under 38 C.F.R. § 4.130, DCs 9499-9440 for his adjustment disorder with depressed mood. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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, warrants a 50 percent rating. 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); and, inability to establish and maintain effective relationships, warrants a 70 percent rating. 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, warrants a 100 percent rating. 38 C.F.R. § 4.130. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of 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 the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining the appropriateness of the schedular ratings assigned to the Veteran's disability, the Veteran's Global Assessment of Functioning (GAF) scores assigned by a medical provider throughout the course of this appeal will be discussed. Throughout the appeal, the Veteran's GAF score has ranged from 40-55. A GAF score of 51-60 contemplates 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). A GAF score of 41 to 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF of 31 to 40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. See DSM-IV at 44-47. A GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Board finds that from December 20, 2002, to November 7, 2007, a rating of 70 percent under the General Rating Formula for Mental Disorders most closely approximates the Veteran's current symptomatology. The evidence shows that the Veteran currently suffers from occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130, DC 9411. Specifically, at an August 2003 VA Medical Center (VAMC) outpatient treatment visit, at a September 2003 VAMC visit, at an August 2005 VA examination, at a June 2007 SSA examination, and at an October 2007 VA examination, the Veteran reported suicidal ideation. At a June 2007 SSA examination, the Veteran indicated that he does not like crowds, and therefore he does not drive and his wife does all of the shopping. At the August 2005 VA examination, and in November 2005, September 2006, and August 2007 VAMC visits, the Veteran stated that he has anxiety attacks in public places. A January 2005, November 2005, and May 2006 VAMC record, and the June 2007 examination, noted that the Veteran's concentration was poor. The June 2007 examiner determined that the Veteran had a flat affect and paranoia. The August 2005 VA examiner determined that the Veteran's depression precludes employment. The Veteran told the August 2005 VA examiner that he was not working because he has difficulty being around people. The SSA also determined that as of December 2006, the Veteran could not work due to, at least in part, his adjustment disorder with depressed mood. The Veteran also told the August 2005 VA examiner that he frequently argues and yells at his family. At the August 2005 VA examination, the Veteran reported sleep problems, decreased libido, and diminished appetite. Throughout his appeal, the Veteran has also reported visual hallucinations. As such, a 70 percent initial disability rating from December 20, 2002, to November 7, 2007, is justified for the Veteran's PTSD. Id. However, since December 20, 2002, a higher rating of 100 percent is not warranted as that rating requires evidence of total occupational and social impairment. While occupational impairment has been documented in the medical evidence, evidence of total social impairment has not been documented in the medical evidence. For the majority of the appeal, the Veteran was married. At a November 2009 VAMC visit, the Veteran reported that he was recently divorced. However, throughout the appeal, the Veteran has indicated that he still has regular relationships with his mother and children. For example, in a November 2005 VAMC visit and at the August 2005 VA examination, the Veteran stated that he visits his mother on a daily basis. At the October 2007 VA examination, the Veteran reported that he currently lived with his wife and children. Additionally, the Veteran's thought process has never been grossly impaired. For example, at the August 2005 and November 2007 VA examinations and at a November 2009 VAMC visit, the Veteran's thought process was rational and logical. At the August 2005 VA examination, his speech was normal, his affect was appropriate, and his memory was intact. At the November 2009 visit, the Veteran had a full range of affect. Additionally, while the Veteran has experienced suicidal ideation, this has been occasional, and not persistent. For example, the Veteran reported experiencing no suicidal ideation or homicidal ideation at May 2005, August 2005, May 2006, and January 2007 VAMC visits. Further, the November 2007 VA examiner described the Veteran's current symptoms as "moderate." Id. A rating of 100 percent contemplates 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. Besides from the occasional visual hallucinations, there is no evidence in the medical record of any of these symptoms. Specifically, the November 2007 VA examiner found that the Veteran's adjustment disorder with depressed mood does not preclude his activities of daily living. The Veteran was found to be competent for VA purposes. At this examination, the Veteran was found to be well groomed and neatly and/or appropriately dressed. His memory was "grossly intact." His judgment was adequate. There was also no evidence of any speech or language impairment. There is no evidence to the contrary of this in the claims file. Id. In further finding against assignment of the next higher 100 percent rating for his PTSD, the Board points to the Veteran's GAF scores. The Veteran's GAF score has ranged from 40-55. A GAF score of 51-60 contemplates 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). A GAF score of 41 to 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF of 31 to 40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. These scores contemplate the same sort of symptomatology included in the criteria for the 70 percent rating under the General Rating Formula for Mental Disorders. Id. The Veteran's lay testimony concerning the severity of his PTSD is unsubstantiated and, thus, probatively outweighed by the objective medical findings to the contrary. See Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494- 95; Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310. See also 38 C.F.R. § 3.159(a)(2); Rucker, 10 Vet. App. at 67; Layno, 6 Vet. App. at 469. See, too, Buchanan, 451 F.3d at 1335. In sum, the weight of the credible evidence demonstrates that the Veteran's PTSD warrants a rating no higher than 70 percent since December 20, 2002. While the requirements of Fenderson have been considered, the evidence of record shows that the Veteran's PTSD has remained constant throughout the appeal period. Extraschedular Evaluation Finally, the Board finds that the Veteran's adjustment disorder with depressed mood and left tibia stress fracture with left knee chondromalacia do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three- step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Here, there is no doubting the Veteran's adjustment disorder with depressed mood and left tibia stress fracture with left knee chondromalacia cause some impairment in his occupational functioning and capacity. But the extent of his impairment is adequately contemplated by the rating criteria, which reasonably describe the effects of his disabilities. According to 38 C.F.R. § 4.1, generally, the degrees of a disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extra- schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization, to suggest the Veteran is not adequately compensated by the regular rating schedule. All of the evaluation and treatment he has received for his adjustment disorder with depressed mood and left tibia stress fracture with left knee chondromalacia has been on an outpatient basis, not as an inpatient. At his recent VA examinations, the Veteran indicated that his disabilities have some effect on his activities of daily living. However, these levels of occupational and other impairment in his daily living are contemplated by the schedular ratings he already has. So extraschedular consideration is not warranted in this circumstance. See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for the Veteran's left tibia stress fracture with left knee chondromalacia is denied. From December 20, 2002, to November 7, 2007, entitlement to an initial disability rating of 70 percent, but no higher, for the Veteran's adjustment disorder with depressed mood is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. Since November 8, 2007, an initial disability rating in excess of 70 percent for an adjustment disorder with depressed mood is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs