Citation Nr: 0812238 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-04 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial disability rating in excess of 50 percent for post traumatic stress disorder (PTSD). 3. Entitlement to a disability rating in excess of 40 percent for peroneal and tibial neuropathy of the right leg. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran served on active duty from August 1966 to December 1967. He was awarded a Purple Heart and a Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied service connection for hypertension and continued a 40 percent evaluation for neuropathy of the peroneal and tibial nerves of the right leg. This matter also arises from a February 2004 rating decision that granted service connection for PTSD and assigned a 30 percent rating effective September 26, 2003. During the course of the appeal, the RO increased the rating for PTSD to 50 percent effective September 26, 2003. As that 50 percent rating is less than the maximum available rating, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for hypertension is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The competent and probative evidence preponderates against a finding that the veteran's symptoms and manifestations of PTSD result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. The residuals of the gunshot wound to the veteran's right lower leg consist of neuropathy of the peroneal and tibial nerves with paralysis of peroneal and tibial nerves, loss of muscle mass, right leg weakness, foot weakness, sensorineuropathy, diminished forefoot push, and complaints of foot drop when tired. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. 1155, 5107(a) (West 2002); 38 C.F.R. 4.1, 4.2, 4.10, 4.130, Diagnostic Code (DC) 9411 (2007). 2. The criteria for a disability rating in excess of 40 percent for neuropathy of the peroneal and tibial nerves of the right leg have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.10, 4.124a, DCs 8521, 8524 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to notify and to assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in October 2002, October 2003, and August 2006; rating decisions in January 2003, February 2004, and January 2005; a statement of the case in January 2005, and March 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in a supplemental statement of the case issued in January 2007. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination for peripheral nerves and PTSD in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. With regard to the issue of an initial disability rating in excess of 50 percent for PTSD, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection for PTSD. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify regarding the issue of an initial rating for PTSD in this case has been satisfied. Increased ratings Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2007). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2 (2007). An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2007). Also, where there is a question as to which of two 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 (2007). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The veteran seeks an initial rating in excess of 50 percent for PTSD. The regulations establish a general rating formula for mental disorders and assign disability ratings according to the manifestation of particular symptoms. A 50 percent rating 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 rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Global Assessment of Functioning (GAF) scale reflects the psychological, social, and occupational functioning in a hypothetical continuum of mental health and illness. Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association, at 32 (4th ed. 1994) (DSM- IV); 38 C.F.R. §§ 4.125(a), 4.130 (2007). The United States Court of Appeals for Veterans Claims (Court), in Carpenter v. Brown, 8 Vet. App. 240 (1995), recognized the importance of the GAF score and the interpretations of the score. GAF scores ranging from 71 to 80 reflect that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g. temporarily falling behind in school work). GAF scores ranging from 61 to 70 reflect 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. GAF scores ranging from 51 to 60 reflect 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 private psychologist wrote in November 2003 that the veteran had been seen for individual counseling in July and August 2003 for PTSD stemming from serving in the infantry in Viet Nam. The diagnosis was PTSD and a GAF score of 75 was assigned. At a VA examination for PTSD in December 2003 the veteran denied hospitalizations for PTSD. He reported seeing individuals for talk therapy starting in the 1980s and had seen at least three providers but was unable to recall their names. For the previous six months he had been seeing a doctor who had diagnosed PTSD. The veteran reported becoming anxious when exposed to environmental cues such as a helicopter and had an increased startle response to unexpected loud noise. He reported having difficulty being close interpersonally. He had a divorce and relationships that did not last. He did not feel close to people, not even to his two grown children. He reported having nightmares on nights when he had seen something in the news about war. He reported being easily agitated. He also avoided places that brought memories of war. He was self-employed because he was unable to get along with others. He had been with his current wife since 2001. He denied having friends. He went to church and served on some committees. He denied having any leisure pursuits at present. He denied assaultiveness and a history of suicide attempts. On mental status examination, no impairment of thought process or communication was noted. The veteran denied auditory and visual hallucinations. No delusional content was noted. He was appropriately dressed and groomed. He was self employed in the real estate industry. He was fully oriented and his memory and intellect were grossly intact. He denied obsessive or ritualistic behavior. The rate and flow of speech was within normal limits and content was goal directed. He denied panic attacks. He reported anxiety as previously noted. No depression was reported. He denied impaired impulse control. He had sleep disturbance in that he fell asleep okay but then woke up a lot. The examiner found that the veteran met the DSM IV stressor criterion. He was wounded while in Vietnam which required an extensive recovery. He re-experienced his trauma through intrusive memories. He avoided situations that would cue memories. He felt detached and estranged from others. He had a restricted range of affect. He had the symptoms of increased arousal, difficulty staying asleep, irritability, hypervigilance, and an exaggerated startle response. Psychometric testing was reported as consistent with PTSD. The diagnosis was PTSD. The GAF score assigned was 55. At an initial psychiatric evaluation in April 2004 and when seen in May 2004 for a regular appointment, the veteran was neatly dressed, pleasant, and cooperative. His speech was coherent with relevant responses and goal directed. His mood was depressed in April and dysphoric in May; his affect was appropriate to thought content and mildly anxious. He denied any auditory or visual hallucinations. There was no evidence of any form of thought disorder. He denied any suicidal or homicidal ideation or intent at that time. He was alert and oriented to time, place, and person. Memory and cognition were grossly intact. Insight and judgment regarding his illness was fair. The GAF score assigned in May 2004 was 55. At a VA review examination for PTSD in December 2004, the veteran denied any hospitalizations since the December 2003 rating examination. He was getting outpatient care from a VA psychiatrist, taking medication, and attending PTSD group therapy. He reiterated the complaints he had during the December 2003 examination. He related periods of depression but stated his main problem was irritability and anger. He stated that he had several problems with relationships due to irritability. He continued to have symptoms of PTSD. He reported that since the last rating examination, he had completely stopped working. He previously worked in real estate but stated that he had such an irritable mood that he would have a falling out with any partners with whom he worked. He stated that his relationship with his wife and family was very poor. He avoided crowds and did not like being around people. His depression had worsened and he had lost interest in just about everything. He had no history of violence, assaultiveness, or suicide attempts. Clinical findings in December 2004 noted no evidence of impairment of thought process or communication. He denied delusions or hallucinations. He denied any current suicidal or homicidal thoughts. At times, he was afraid he might get violent towards another person after an argument. He was able to maintain minimal personal hygiene and do activities of daily living. He was oriented to person, place, and time. There was no evidence of memory loss. There was no evidence of obsessive or ritualistic behavior. His speech was of normal rate and volume. He was logical during the interview. He had periods of anxiety for which he was taking medication. He endorsed a depressed mood for most days with a lot of anger and irritability. He did have impaired impulse control and got angry. Sometimes he felt like hitting someone or something, but so far he had controlled himself. He reported sleep impairment and that without medication he was unable to sleep. The GAF score assigned was 51. The veteran was seen regularly every few months by a physician for a medication evaluation. From November 2004 to October 2006, the medical notes show that the veteran's speech was coherent with relevant responses and was goal directed. His speech was of normal tone and latency. His mood was variously described as mildly depressed, mildly dysphoric, mildly anxious, euthymic, dysphoric, and depressed. His affect was appropriate to thought content. He was mildly anxious in November 2004. He denied audio or visual hallucinations. He was not psychotic. He denied any suicidal or homicidal ideation or intent. He was alert and oriented to time, place, and person. Memory and cognition were grossly intact. Insight and judgment regarding his illness was mostly described as fair and described as intact in March 2006 and October 2006. At several appointments he mentioned that he was stressed over a pending lawsuit. A GAF score of 55 was assigned at those appointments. The veteran attended three tracks of a PTSD recovery program group and then continued with a maintenance group. He participated fully and appropriately in group interactions. The veteran was afforded a VA review examination for PTSD in October 2006. He continued to get VA outpatient care at a mental health clinic; however, he had not had any hospitalizations. The veteran stated that he was still suffering from symptoms of PTSD and claimed that the severity of his PTSD symptoms had been the same. The examiner noted, however, that certain progress notes indicated that the veteran had responded to medications and had fewer symptoms. The veteran continued to have marital problems and problems with anger control. He also complained of anxiety, depression, and insomnia. The veteran was still unemployed. He still lived with his wife and stepson but did not get along with his wife. He stated that he did not socialize and denied pursuing activities and leisure pursuits. He had no history of violence or assaultiveness or history of suicide attempts. There was no evidence of impairment of thought process or communication. He denied delusions or hallucinations. He denied any current suicidal or homicidal thoughts. He was able to maintain minimal personal hygiene and do activities of daily living. He was oriented to person, place, and time. There was no evidence of memory loss. He denied obsessive or ritualistic behavior. His speech was of normal rate and volume and he was logical. He reported some anxiety but not in the form of panic attacks. He endorsed a depressed mood almost every day. There was no evidence of impaired impulse control. He had sleep impairment in that he had trouble falling asleep and did not stay asleep. He felt the sleep medicines did not always work. He had fewer nightmares. The psychiatrist assessed the severity of the veteran's symptoms to be less than at the last rating examination. A GAF score of 56 was assigned. The psychiatrist did not see that the veteran had decompensated in his symptoms compared to the December 2004 rating examination. The veteran continued to benefit from group therapy and his psychiatric medications. After considering all the evidence of record, it is the opinion of the Board that a rating in excess of 50 percent is not warranted. There is no indication that the veteran neglected his personal appearance or hygiene, or that he had spatial disorientation, or obsessional rituals. The findings show that the veteran was neatly dressed. He was alert and oriented in four spheres on examination. He denied suicidal ideation. Although he was depressed, the evidence does not show that he had near-continuous panic or depression affecting his ability to function independently, appropriately and effectively. Deficiency in judgment is not shown. His speech was normal and there was no evidence of illogical or delusional thought process. He was described as irritable and at times felt like hitting someone but he had controlled himself not to do so. Although the evidence suggests that the veteran did not socialize, the inability to establish and maintain effective social relationships was not shown. The evidence shows that he interacted appropriately with other members of his group therapy and staff when participating in treatment programs and he had a relationship with his wife and children, although described as not a close one. The veteran stated that he had stopped working. However, evidence shows that he still had an affiliation with a real estate company and involvement with real estate agents sponsored by him. The GAF score shown at outpatient treatment and on examination was primarily a score of 55 which reflects the midpoint of the range of moderate symptoms. These symptoms do not more closely approximate a higher 70 percent evaluation. Therefore, the Board finds that an initial increased rating is not warranted. As to whether a 100 percent schedular disability evaluation is warranted under the regulations, the examinations do not reflect psychiatric manifestations meeting or approximating the requirements for a 100 percent schedular evaluation. At the time of the examinations the veteran was alert and cooperative with the interview. He had actively participated for a few years in group therapy sessions. There was no indication of lack of minimal personal hygiene or that he had an inability to do activities of daily living. The clinical findings show no evidence of memory loss and there is no indication that he had memory loss for names of close relatives, his own occupation, or his own name. He had no persistent delusions, hallucinations, or grossly inappropriate behavior. He was not shown to be a persistent danger of hurting himself or others. He consistently denied having suicidal ideation and there is no indication that he was felt to be a danger of hurting others. No gross impairment in thought processes or communication was indicated. Thus, his symptoms do not more closely approximate a 100 percent schedular rating. The veteran has not asserted, nor does the evidence suggest, that the regular schedular criteria are inadequate to evaluate his PTSD impairment. There is no contention or indication that his PTSD is productive of marked interference with employment beyond that contemplated by the 50 percent disability rating or necessitates frequent hospitalization, or that the manifestations associated with this disability are unusual or exceptional. Moreover, in a January 2005 rating decision, the RO granted the veteran a total disability evaluation based on individual unemployability, based on the veteran's service-connected disabilities of PTSD and his right leg disability with associated bursitis of both hips and bilateral knee strain and degenerative joint disease of the lumbar spine. Thus, the Board finds that referral for consideration of an extraschedular rating is not appropriate. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In deciding this matter, the Board has considered all the evidence with consideration given to staged ratings. The Board concludes that the 50 percent evaluation assigned adequately reflects the clinically established impairment experienced by the veteran and that the criteria for a higher rating are not met. As the preponderance of the evidence is against the claim for an initial rating in excess of 50 percent, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neuropathy of the peroneal and tibial nerves of the right leg The veteran seeks a rating in excess of 40 percent for his service-connected neuropathy of the peroneal and tibial nerves of the right leg. The current 40 percent rating is protected because it has been in effect for more than 20 years. 38 C.F.R. § 3.951(b) (2007). Diagnostic Code 8524 provides for the evaluation of injury to the tibial nerve. A maximum 40 percent rating is warranted for complete paralysis of the internal popliteal (tibial) nerve, with plantar flexion lost, frank adduction of the foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost. 38 C.F.R. § 4.124a, DC 8524. Complete paralysis of the external popliteal (common peroneal) nerve, with foot drop and slight droop of first phalanges of all toes, such that the foot cannot dorsiflex, extension (dorsal flexion) of proximal phalanges of toes is lost, abduction of foot is lost, adduction is weakened, and anesthesia covers entire dorsum of foot and toes will be rated as 40 percent disabling. Neuritis and neuralgia of the external popliteal (common peroneal) nerve will be rated on the same basis. 38 C.F.R. Part 4, Codes 8521, 8621, 8721 (2007). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.120. Service medical records show that the veteran sustained a perforating bullet wound of the right leg below the knee in April 1967 when ambushed on a search and destroy mission near Tri Bi, Vietnam. He was evacuated to a surgical hospital and treated before being further evacuated for additional treatment. He was then transferred to Fitzsimons General Hospital in May 1967. A medical board in November 1967 found the veteran had marked weakness in his forefoot, in the muscles supplied by the tibial nerve and an appreciable weakness of many of the muscles supplied by the peroneal nerve. Hyperthesia was present on part of the bottom of the foot. Clinical findings showed the veteran was unable to plantar flex the foot and very minimally dorsiflex the right foot and right great toe. There was no ability to invert or evert. There was a well healed scar on the anterior medial aspect of the right calf and a well healed scar on posterior calf. The diagnosis was neuropathy of the peroneal and tibial nerves, secondary to gunshot wound, perforating of the right leg, due to an injury incurred during hostile small arms fire in Tri Bi, Vietnam in April 1967. It was noted that this corresponded most closely to VA DC 8524, internal popliteal nerve (tibial), paralysis of, incomplete, severe; and DC 8521, external popliteal nerve (common peroneal), paralysis of, incomplete, moderate. In a December 1967 rating decision, service connection was granted for neuropathy of the peroneal and tibial nerves of the right leg. A 40 percent rating was assigned under DCs 8521-8524 effective from December 1967. VA treatment records from October 2001 to July 2002 show that when seen in a VA orthopedic clinic in January 2002 his right leg condition was stable and had not worsened. He was afforded VA examinations for peripheral nerves in December 2004 and October 2006. Clinical findings showed paralysis of peroneal and tibial nerves, loss of muscle mass, right leg weakness, foot weakness, sensorineuropathy, diminished forefoot push, and complaints of foot drop when tired. The veteran is now in receipt of the maximum schedular evaluation, 40 percent, under DC 8521 or 8524. In addition, he is also service-connected for bursitis of the bilateral hips, degenerative joint disease of the lumbar spine, and bilateral knee strain secondary to the service-connected disability of neuropathy of the peroneal and tibial nerves of the right leg. The Board has considered all pertinent sections of 38 C.F.R. Parts 3 and 4, as required by the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In that regard, consideration has been given to whether any other applicable diagnostic code under the regulations provides a basis for a higher evaluation for the service-connected neuropathy of the peroneal and tibia nerves of the right leg disability. With consideration of the rating criteria for disability of the nerves of the lower extremity, a rating in excess of 40 percent would require involvement of the sciatic nerve and there is no competent medical evidence of such involvement. Thus, DC 8520 is not for application. Since the nerves make the muscles function, there is significant overlap in nerve and muscle impairment. The same manifestations cannot be compensated under different diagnostic codes. 38 C.F.R. § 4.14. Therefore, the right leg disability cannot be rated under both nerve and muscle codes. Similarly, any foot or toe deformities caused by the nerve injury cannot be rated separately because the impact of the neurologic disorder on the feet is included in the rating for complete paralysis under the diagnostic code for the nerves. In addition, the highest schedular evaluation for a severe muscle injury under DCs for evaluation of muscle groups of the foot and leg allow for no more than a 30 percent rating. In other words, a higher evaluation cannot be awarded under the Diagnostic Codes for rating muscle injuries. The orthopedic criteria found at Diagnostic Codes 5270 through 5274 for evaluation of an ankle disorder similarly do not allow for a schedular evaluation in excess of 40 percent disabling. Even considering any complaints of weakness, fatigability, or loss of function due to pain, a higher disability rating may not be assigned under those codes. Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The Board does not find any basis for an additional separate rating. Clinical findings at the December 2004 VA examination noted that the veteran had a scar on the inner calf and a scar on the posterior leg that were well healed and stable. Tenderness to touch was noted. This is consistent with the neurologic deficits, however, and does not reflect a painful scar ratable under 38 C.F.R. § 4.118, DC 7804 (criteria effective prior to and as of August 30, 2002). Finally, the Board has considered whether the case should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). There has been no showing in the record on appeal that the veteran's service-connected right leg disability has caused marked interference with employment or necessitated frequent periods of hospitalization, beyond that contemplated by the 40 percent disability rating. There is no objective evidence that the right leg disability, in and of itself, has resulted in marked interference with employment. Moreover, in granting the veteran a total disability rating based on individual unemployability, the RO indicated in a January 2005 rating decision that the veteran's service-connected disabilities of PTSD and the right leg disability with associated bursitis of both hips and bilateral knee strain and degenerative joint disease of the lumbar spine contributed to his unemployability. Having reviewed the record with these mandates in mind, the Board finds no basis for further action. VAOPGCPREC 6-96, 61 Fed. Reg. 66749 (1996). Therefore, the Board finds that the criteria for submission for an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). After considering all the evidence of record, it is the opinion of the Board that a rating in excess of 40 percent is not warranted for the veteran's service-connected neuropathy of the peroneal and tibial nerves of the right leg. The Board concludes that the 40 percent rating assigned adequately reflects the clinically established impairment experienced by the veteran. As the evidence preponderates against the claim for an increased rating, an increased rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an initial rating in excess of 50 percent for PTSD is denied. Entitlement to a rating in excess of 40 percent for neuropathy of the peroneal and tibial nerves of the right leg is denied. REMAND The veteran seeks service connection for hypertension. Evidence of record does not show complaints, findings, or diagnoses of hypertension in service or that any hypertension manifested to a compensable degree within the applicable presumptive period. The veteran claims that his high blood pressure developed from the suffering he has endured since he was shot in Vietnam and due to his PTSD. Medical records show that he has a current diagnosis of hypertension. The veteran is service-connected for residuals of a gunshot wound to his right leg, involving neuropathy of the peroneal and tibial nerves with associated disabilities, and for PTSD. The regulations provide that service connection is warranted for a disability which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability, but in such a case the veteran may be compensated only for the degree of additional disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Board finds that a medical opinion regarding any secondary causation or aggravation is necessary to decide this claim. 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA hypertension examination. The claims folder must be made available to the examiner for review and the review should be noted in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the veteran's claimed hypertension is related to service, or to the veteran's service-connected PTSD or neuropathy of the peroneal and tibial nerves of the right leg with associated secondary disabilities, or is aggravated by the veteran's service-connected PTSD or neuropathy of the peroneal and tibial nerves of the right leg with associated secondary disabilities. A rationale should be provided for all opinions expressed. 2. Then, readjudicate the veteran's claim. If the benefit sought remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs