Citation Nr: 0812983 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 94-12 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis and heel spurs. 2. Entitlement to an increased rating in excess of 10 percent for bursitis of the left hip. 3. Entitlement to a disability rating for post-traumatic stress disorder (PTSD) in excess of 10 percent prior to October 28, 2005, and in excess of 30 percent from October 28, 2005. 4. Entitlement to service connection for bilateral knee disorder. 5. Entitlement to service connection for dysthymic disorder/depressive disorder. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran served on active duty from May 1986 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The veteran testified before a Veterans Law Judge who is no longer employed by the Board in June 1996, and testified before the undersigned in October 2007. The transcripts are included in the claims folder. FINDINGS OF FACT 1. The veteran's bilateral pes planus is not for any period of increased rating claim manifested marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances; individually, each foot has demonstrated no more than mild to moderate symptomatology for the entire period of claim. 2. The veteran's bursitis of the left hip is not for any period of increased rating claim manifested forward flexion that more nearly approximates limitation to 30 degrees or abduction limited to 10 degrees. 3. For the period of increased rating claim prior to February 22, 2000, the veteran's PTSD symptomatology more nearly approximated definite impairment in the ability to establish or maintain effective or wholesome relationships with people; for the period prior to February 22, 2000, the veteran's PTSD symptomatology did not more nearly approximate considerable impairment in the ability to establish or maintain effective or wholesome relationships with people, or psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency as to produce considerable industrial impairment; and for the period of claim from November 7, 1996 to February 22, 2000, the veteran's PTSD symptomatology did not more nearly approximate occupational and social impairment with reduced reliability and productivity. 4. For the period of increased rating claim from February 22, 2000, the veteran's PTSD symptomatology has more nearly approximated considerable impairment in the ability to establish or maintain effective or favorable relationships with people; for the period from February 22, 2000, the veteran's PTSD symptomatology has not more nearly approximated severe impairment of ability to establish and maintain effective or favorable relationships with people; and for the period from February 22, 2000, the veteran's PTSD symptomatology has not more nearly approximated occupational and social impairment with deficiencies in most areas. 5. There is no competent medical evidence of record of a currently diagnosed bilateral knee disability. 6. Symptoms from dysthymic disorder/depressive disorder have already been related to the service-connected disability of PTSD. 7. The veteran's current employment as a Detention Officer, in which she earns an annual salary of about $17,000 a year, constitutes substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for bilateral pes planus have not been met for any period of increased rating claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5276, 5284 (2007). 2. The criteria for a disability rating in excess of 10 percent for bursitis, left hip, have not been met for any period of increased rating claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5015, 5250, 5252, 5253, 5254, 5255 (2007). 3. For the period of increased rating claim prior to February 22, 2000, the criteria for a 30 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (1996). 4. For the period of increased rating claim from February 22, 2000, the criteria for a disability rating of 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (1996). 5. Service connection is not warranted for bilateral knee disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 6. Service connection is not warranted for dysthymic disorder/depressive disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.14 (2007). 7. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.16, 4.18, 3.340, 3.341 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In correspondence dated November 2004, March 2005, March 2006, and November 2007, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the service connection claims and increased rating claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in her possession that pertained to her claims. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In this case, the veteran was provided pertinent information in the correspondence cited above, and in a supplemental statement of the case. Cumulatively, the veteran was informed of the necessity of providing on her own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. The veteran was also provided the applicable diagnostic codes under which she is rated. Each diagnostic code contains criteria necessary for entitlement to a higher disability ratings that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the veteran's employment and daily life (such as a specific measurement or test result); the claimant was informed that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and examples of pertinent medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. At the personal hearing in October 2007, the veteran also demonstrated her understanding of what is necessary to substantiate a claim for a higher rating. VA has done everything reasonably possible to assist the veteran with respect to her claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured, including records from the veteran's private physicians. The veteran was examined on a number of occasions to determine the nature and severity of her claimed disabilities. The duties to notify and assist have been met. The RO also provided notice of the requirements in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) by correspondence dated March 2006 and November 2007. Therefore, it is not prejudicial to the veteran for the Board to proceed to finally decide the issues discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2007) (harmless error). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the veteran or on her behalf. The Board will summarize the relevant evidence on what the evidence shows or fails to show on the veteran's claims. Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (discussion of all evidence by Board not required when Board supports decision with thorough reasons and bases regarding relevant evidence). II. Disability Ratings In 1998, the veteran claimed that her service-connected bilateral pes planus, bursitis, left hip, and PTSD warranted increased ratings, asserting that her disabilities had worsened. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. If an unlisted condition is encountered, it is rated under a closely related disease or injury in which the functions affected, the anatomical localization, and the symptomatology are closely analogous. 38 C.F.R. § 4.20. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Increased Rating for Bilateral Pes Planus By way of background, in a July 1990 rating decision, the RO granted service connection for metatarsalgia, right foot, assigning a 10 percent rating. In a May 1994 rating decision, the RO granted service connection for left flatfoot, assigning a noncompensable (0 percent) rating and continued the 10 percent rating for metatarsalgia, right foot. The veteran appealed this decision. In an August 1997 rating decision, the RO discontinued the 10 percent rating for metatarsalgia, right foot, and assigned a combined rating of 30 percent for metatarsalgia, right foot, and left flatfoot with bilateral plantar fasciitis and heel spurs, effective from the date of claim (April 29, 2003). Because higher ratings are available, and the veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In support of her claim, the veteran testified that both feet give her constant trouble. She wears orthotics from VA in both feet. (T. 17-18). The veteran's bilateral pes planus has been rated 30 percent disabling under Diagnostic Code 5284. Under 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007), a 10 percent rating is warranted for a moderate foot injury. A 20 percent rating is warranted when moderately severe and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007). Actual loss of use of the foot will be evaluated as 40 percent disabling. Id., Note following Diagnostic Code 5284. Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under Diagnostic Code 5276, a 30 percent rating is warranted for severe bilateral pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral pes planus, manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. VA examination report in June 1993 noted complaints of feet feeling numb in the morning. She wears arch supports. Examination revealed no flatfeet. There was slight tenderness in the right arch. Plantar flexion right and left ankles were to 50 degrees. Dorsiflexion was to 0 degrees bilaterally. The diagnosis was mild flat feet. VA clinical evaluation in March 1994 noted bilateral plantar fasciitis with full range of motion. VA examination report in January 1997 noted complaints of painful feet in the morning with increased symptomatology over the course of the day. Heel cups have afforded relief. Examination revealed slight valgus and mild depression of the inner-longitudial arch with some prominence of the navicular bilaterally. She could walk heel to toe, but this elicited discomfort in the plantar fascia area bilaterally. There was no weakness of the extensor digitorum, extensor hallucis, or the anterior tibialis, peroneals, or posterior tibial tendon. There was no limitation of subtalar joint motion or mid-foot joint motion. No callosities were noted. The diagnosis was bilateral symptomatic plantar fasciitis with associated heel spurs. X-ray findings revealed plantar spurs in both feet. VA examination report in August 1998 noted a relaxed type of flatfoot. When standing, the forefoot pronates, the heel goes into some valgus, and there was collapse of the longitudinal arch. She was moderately tender over both heels and over both of the plantar fascia along the medial side, and one could palpate the medial border of the plantar fascia. She was also moderately tender in the talonavicular joint. There were no corns or calluses noted. X-ray findings showed bilateral calcaneal spur, but no acute disease. VA examination in February 2000 noted that the veteran complained of painful feet. The veteran stated that her complaints were essentially the same as before. Evaluation revealed modest flat foot. The mid-foot and hind foot were quite flexible and showed no evidence of rigidity. The veteran could walk heel to toe without any notable problem. The plantar aspect was tender along the anterior aspect. VA examination in April 2003 revealed pedal pulses in feet. Both ankles moved from 25 degrees of dorsiflexion to 50 degrees of plantar flexion. The midfoot and hindfoot joints were all flexible. There was tenderness over the arch and over the plantar aspect of the heel. The examiner stated that the veteran did have tenderness over the heels, which went along with her history of plantar fasciitis. VA examination in July 2003 indicated that the veteran had mild to moderate pronation of the feet. She did not have extreme tenderness of the plantar surface of he left foot. There was no marked inward displacement, or severe spasm of the tendo Achilles on manipulation. There was no marked deformity and no accentuation of pain on manipulation or use that could be determined. There were no calluses. Weight bearing was normal. There was no inward bowing of the endo Achilles. She was able to do a single-footed tiptoe maintaining her foot in good position. The examiner stated that the veteran did not have metatarsalgia problems at that time. There was nothing about the feet which would prevent her from being employed. X-ray of the feet in April 2003 did not show any abnormality. VA examination in November 2005 revealed complaints of daily foot pain. There was no swelling of her feet. Examination revealed pes planus of the left foot and on the right foot, mild arch is preserved. The Achilles tendons were aligned. There was no evidence of abnormal weight bearing. There was some tenderness on palpation of the heels, the metatarsals, and the metatarsophalangela joints. She could dorsiflex toes to 20 degrees, and plantar flex to 20 degrees. There were no calluses. Upon review, the veteran's bilateral pes planus is already assigned a 30 percent schedular rating under Diagnostic Code 5284. The evidence has not shown actual loss of use of either foot, therefore, a 40 percent rating is not warranted. A higher rating for bilateral pes planus is not warranted under Diagnostic Code 5276 as there are no findings of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. In fact, the most recent VA examination reports specifically indicate no such severe findings in this case. The veteran's representative argued that each foot should be rated separately in this case. The Board has considered whether rating it would be a benefit to rate each foot separately in this case. However, the medical evidence summarized above consistently referred to the veteran's symptoms as mild to moderate. The June 1993 VA examination report diagnosed mild flat feet. The August 1998 VA examination report indicated moderate tenderness and no evidence of calluses. The July 2003 VA examination report showed mild to moderate pronation and no evidence of marked or severe problems with either foot. Based upon the above, neither foot, individually, would warrant a rating in excess of 10 percent under Diagnostic Codes 5284 at any time during the claims period. In sum, the criteria for a disability rating in excess of 30 percent for bilateral pes planus have not been met for any period of increased rating claim. Separate ratings for each foot would not result in a higher overall rating as the symptoms show mild to moderate foot disability under the pertinent diagnostic criteria. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Increased Rating for Bursitis of the Left Hip By way of background, service connection for bursitis of the left hip was granted by the RO in a July 1990 rating decision. The RO assigned a 10 percent rating under 5019. The veteran filed a claim for increased rating in November 1993, which the RO denied in a May 1994 rating decision. The veteran appealed. Bursitis is rated analogous to degenerative arthritis that is rated based on limitation of motion. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5019 (2007). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When the limitation of motion of the specific joint involved is noncompensable, a 10 percent evaluation applies for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the hip is a major joint. 38 C.F.R. § 4.45 (2007). Limitation of motion of the hip and thigh is rated under Diagnostic Codes 5251, 5252, and 5253. Under Diagnostic Code 5251, a 10 percent rating is warranted when extension of the thigh is limited to 5 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5252, a 40 percent rating is warranted if flexion of the thigh is limited to 10 degrees; 30 percent, if limited to 20 degrees; 20 percent, if limited to 30 degrees; and 10 percent, if limited to 45 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5253, a 20 percent disability rating is warranted for limitation of abduction, where motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a. Normal range of motion in the hip consists of flexion to 125 degrees and abduction to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2007). The veteran testified in October 2007 that she does not take any medication for her bursitis, left hip. (T. 15). She complains of constant burning and stiffness with difficulty moving around due to her hip. (T. 16). She uses canes to assist in ambulation. (T. 15). On review, the Board finds that a rating in excess of 10 percent is not warranted for service-connected bursitis, left hip. On VA examinations conducted in June 1993, January 1997, August 1998, February 2000, April 2003, July 2003, November 2005, and April 2006, forward flexion of the left hip was not limited to 30 degrees. The greatest limitation of flexion noted was on the November 2005 VA examination, which noted limitation of flexion to 40 degrees without pain. As such, a higher evaluation for bursitis, left hip is not warranted under Diagnostic Code 5252. A higher evaluation is not warranted for service-connected bursitis, left hip pursuant to Diagnostic Code 5253, as abduction is not lost beyond 10 degrees on any of the VA examination reports, or in VA or private clinical records. On VA examination in April 2003, abduction of the left hip was to 25 degrees. VA examination in November 2005 indicated abduction to 40 degrees without pain. The Board has considered whether a higher evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202, 204-7 (1995). In this regard, complaints of pain were noted throughout the claims period; however, the Board does not find adequate pathology or symptoms that would warrant a rating in excess of 10 percent. The most recent VA examination report noted flexion and abduction limited to 40 degrees without pain. See DeLuca, supra. The Board has considered other potentially applicable diagnostic codes that provide for assignment of higher ratings for the veteran's bursitis, left hip. However, because the evidence shows that the veteran does not have ankylosis of the hip, a flail hip joint, impairment of the femur involving malunion of the femur, or fracture of the femur with nonunion, a rating in excess of 10 percent under Diagnostic Codes 5250, 5254, or 5255 is not warranted. In short, a higher rating is not warranted for bursitis, left hip. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Increased Rating for PTSD By way of background, service connection for PTSD was granted in a September 1991 rating decision. The RO assigned a 10 percent rating at that time. The veteran filed a claim for increased rating in November 1993, which the RO denied in a May 1994 rating decision. The veteran appealed. In a December 2005 rating decision, the RO increased the veteran's rating to 30 percent, effective October 28, 2005. The effect of this decision is the creation of a staged rating of 10 percent for the period of increased rating claim prior to October 28, 2005, and a 30 percent rating for the period of increased rating claim from October 28, 2005. During the pendency of the veteran's appeal for increased rating for PTSD, VA promulgated new regulations amending the rating criteria for mental disorders, effective November 7, 1996, in order to ensure that current medical terminology and unambiguous criteria are used. See 61 Fed. Reg. 52,695 (1996) (codified at 38 C.F.R. pt. 4). The changes included redesignation of § 4.132 as § 4.130 and the revision of the newly redesignated § 4.130. Also effective November 7, 1996, the general rating formula for mental disorders was replaced with different criteria. And, in some instances the nomenclature employed in the diagnosis of mental disorders was changed to conform to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV), replacing DSM-III-R. The Board has analyzed the veteran's claim under both sets of criteria, and finds that the former rating criteria are more favorable to the veteran in this case. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 2002) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claim pursuant to both versions during the course of this appeal. See VAOPGCPREC 3-2000; 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under the former version of Diagnostic Code 9411, which was in effect prior to November 7, 1996, a 10 percent rating requires less than the criteria for the 30 percent rating, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent rating requires definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and psychoneurotic symptoms that result in such reduction in flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent rating requires considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment. A 70 percent rating is warranted when the veteran's ability to establish and maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in his ability to obtain or retain employment. A 100 percent rating is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior, and demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1996). In Hood v. Brown, the Court stated that the term "definite" in 38 C.F.R. § 4.132 was qualitative in nature, whereas the other terms, e.g., "considerable" and "severe," were quantitative. Hood v. Brown, 4 Vet. App. 301, 303 (1993). Thereafter, VA's Office of General Counsel issued a precedent opinion concluding that "definite" was to be construed as "distinct, unambiguous, and moderately large in degree." It represented a degree of social and industrial inadaptability that was "more than moderate but less than rather large." The term considerable, the criterion for a 50 percent evaluation, was to be construed as "rather large in extent or degree." VAOPGCPREC 9-93. The Board is bound by this interpretation of the terms "definite" and "considerable." 38 U.S.C.A. § 7104(c). Under the new rating criteria, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or if the veteran's symptoms are controlled by continuous medication. A 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). 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; and 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 ideations; 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 worklike settings); 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 (2007). A Global Assessment of Functioning (GAF) rating is 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). GAF scores are but one piece of information to be examined, and the Board is obligated to review all pertinent evidence and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. A GAF of 41-50 is defined as serious symptoms (e.g., suicidal ideations, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51-60 is defined as 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 of 61-70 is defined as some mild symptoms OR some difficulty in social, occupational, or school functioning. A GAF of 71-80 is defined as, if symptoms are present, they are transient and expectable reactions to psychosocial stressors. The evidence in this case includes a December 1993 VA examination report that indicates that the veteran had anger when talking about all her difficulties with change of command, complained about having difficulty concentrating, mood affect showed some anger, and she had experienced some initial insomnia. The diagnosis was PTSD. A GAF score of 60 was given. VA clinical record in September 1998 indicated that the veteran had been depressed for over one year, and she was on Prozac, 20 mg. She moved to Texas from Oklahoma one year ago. She accepted a job with the Federal Aviation Administration in September 1997, but was fired from the job in February 1998. She filed an EEOC complaint against the employer for wrongful termination. She was attending school and working towards here Bachelors Degree in Science. Examination in September 1998 revealed that the veteran's mood was somewhat dysphonic. The diagnosis was depressive disorder, with a GAF score of 75. VA report of examination on February 22, 2000 noted that the veteran's psychomotor activity was depressed, eye contact was occasional and she wore glasses, mood was depressed, and affect was mood congruent. The veteran admitted to anger, but denied impulses to hurt others, and admitted to depression, but denied thoughts about suicide. The diagnosis was depressive disorder, and the examiner assigned a GAF score of 55. VA examination in April 2003 revealed that the veteran did not talk spontaneously, but did answer questions, mood was depressed, and she reported some thoughts of homicide, but she did not have any plans to act it out. The veteran reported that she often argues with others, and had recurrent and obsessive thoughts about her 1st Sergeant and what he did in the military. The diagnosis was dysthymic disorder, PTSD, and alcohol dependence, in remission. The examiner assigned a GAF score of 55. In a July 2003 addendum statement, the examiner indicated that 30 percent of her mental problems are believed to be related to her service-connected PTSD and 70 percent due to her non-service-connected dysthymia. The examiner also explained that factors other than PTSD are contributing to her dysthymia, specifically that her alcohol dependence may make her mental disorder worse, but not permanently if successfully treated. VA clinical record in October 28, 2005 showed difficulty sleeping and nightmares once per night from history of in- service stressor. The record also noted a history of depression. VA examination in December 2005 indicated that the veteran had been alcohol free since 2000. The examiner commented on a 2001 letter in the record written by the veteran and stated that it exhibited poor construction, organization, and redundancy. It demonstrated that the veteran's intellectual functioning was not really good. The examiner noted that her claim folder was immense, but no psychiatric significance. The examiner noted the veteran's somewhat diminished intellectual functioning and mild-to-moderate depression. The examiner indicated that the veteran embellished her PTSD complaints. The diagnosis was PTSD. The examiner indicated that the degree of the veteran's disability was disputable. The examiner further stated that, once the veteran loses her current employment, she will be indeed unemployable. VA clinical record in January 2007 indicated complaints of erratic sleep, with nightmares of combat and night sweats several times per week. The diagnosis was PTSD. The veteran testified in October 2007 that she wakes up often at night with anxiety attacks. (T. 6-7). She takes medication for her PTSD and states that she needs therapy, but is not currently receiving such care. (T. 8-9). She complained about having difficulty in relationships. (T. 9). She testified she was currently employed as a Detention Officer for the past year and was an aviator operator in Dallas the prior eight years. (T. 4-5) Period of PTSD increased rating claim prior to February 22, 2000 After a review of the evidence, the Board finds that, for the period of increased rating claim prior to February 22, 2000, the veteran's PTSD symptomatology more nearly approximated definite impairment in the ability to establish or maintain effective or wholesome relationships with people, as required for a 30 percent disability rating under the rating criteria in effect prior to November 7, 1996. For this period of claim, the evidence includes GAF scores of 55 and 60, which represents moderate symptoms or moderate difficulty in social and occupational functioning that contemplates few friends and conflicts with peers or co-workers. For this period of time, the veteran had symptoms of anger, difficulty concentrating, angry mood and affect, depression, and insomnia. For these reasons, the Board finds that, for the period of increased rating claim prior to February 22, 2000, the criteria for a 30 percent disability rating for PTSD have been met. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1996). Based on the same evidence, the Board also finds that, for the period of claim prior to February 22, 2000, the veteran's PTSD symptomatology did not more nearly approximate considerable impairment in the ability to establish or maintain effective or wholesome relationships with people, or psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency as to produce considerable industrial impairment, as required for a 50 percent disability rating under the rating criteria in effect prior to November 7, 1996. The Board further finds that, for the period from November 7, 1996 to February 22, 2000, the veteran's PTSD symptomatology did not more nearly approximate occupational and social impairment with reduced reliability and productivity, as required for a higher disability rating of 50 percent under the revised rating criteria in effect from November 7, 1996. Period of PTSD increased rating claim from February 22, 2000 After a review of the evidence, the Board finds that, for the period of increased rating claim from February 22, 2000, the veteran's PTSD symptomatology has more nearly approximated considerable impairment in the ability to establish or maintain effective or favorable relationships with people, , as required for a 50 percent disability rating under the rating criteria in effect prior to November 7, 1996. For this period of claim, the evidence includes GAF scores of 55, which represent moderate symptoms or moderate difficulty in social and occupational functioning that contemplates few friends and conflicts with peers or co-workers. For this period of time, the veteran had symptoms of anger, difficulty concentrating, angry mood and affect, mild-to-moderate depression, dysphonic and depressed mood, depressed psychomotor activity and nonspontaneous speech, some thoughts of homicide, recurrent and obsessive thoughts about a military incident, impaired intellectual functioning, difficulty sleeping with nightmares and insomnia, and difficulty with relationships. Based on the same evidence, the Board also finds that, for the period of increased rating claim from February 22, 2000, the veteran's PTSD symptomatology has not more nearly approximated severe impairment of ability to establish and maintain effective or favorable relationships with people, as required for a 70 percent disability rating under the rating criteria in effect prior to November 7, 1996. The Board further finds that, for the period from February 22, 2000, the veteran's PTSD symptomatology has not more nearly approximated occupational and social impairment with deficiencies in most areas, as required for a higher disability rating of 50 percent under the revised rating criteria in effect from November 7, 1996. III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. Service Connection for Bilateral Knee Disorder In written submissions and personal hearing testimony, the veteran contends that she currently has a bilateral knee disorder that is due to service. At a personal hearing in October 2007, the veteran testified that he received treatment for knee problems in service sometime in 1986 or 1987, and again in Panama sometimes in 1989. (T. 26-27). She also complained about her knees after service, beginning in 1990 and through the present. (T. 27-28). After a review of the evidence, the Board finds that a preponderance of the evidence is against the veteran's claim as there is no evidence of a current bilateral knee disability. VA examination report in June 1993 was negative for abnormal findings involving the knees. No diagnosis was given. VA examination in August 1998 revealed no abnormal findings involving the knees. X-ray findings of the knees were normal in August 1998 and February 2000. VA examination report in February 2000 indicated that evaluation of the knees was without abnormal findings. VA examination in April 2003 noted no abnormal findings of the knees on evaluation. VA examination in July 2003 specifically found no diagnosis for either knee. There was no definite abnormality found on examination or x-ray findings. Two VA examination reports in November 2005 were negative for any abnormal clinical findings involving the knees. No diagnosis was given. VA General Examination report in April 2006 also failed to note any current knee abnormalities or diagnoses. VA clinical records and private medical records fail to show any diagnosis of knee disability. The Board recognizes the veteran's argument that he has a current bilateral knee disorder that is related to service. However, the United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). In this case, bilateral knee disability is not shown to be present based on the medical evidence of record. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). As such, the claim must be denied. Service Connection for Dysthymic Disorder The veteran's complaints of dysthymia and depression have already been considered in adjudicating symptoms associated with his service-connected PTSD, which served in part as a basis for the rating assigned for service-connected PTSD. To grant service connection for dysthymic disorder/depressive disorder, which would then involve separately rating the symptom, would violate the rule against pyramiding at 38 C.F.R. § 4.14, which provides that the evaluation of the same disability under various diagnoses is to be avoided. The criteria for rating psychiatric impairments under which the veteran's service-connected PTSD is rated specifically provides for rating based on related psychiatric symptoms of decrease in work efficiency, decrease or inability to perform occupational tasks, interference with or inability to perform routine activities, disturbances of motivation and mood, and depression that affects the ability to function. See 38 C.F.R. § 4.130 (2007). The Board considered the veteran's symptoms of depression, which was one of the symptoms, taken together, that warranted the granting of the higher staged ratings. Such psychiatric symptoms result in the same mental and occupational impairment as the veteran's dysthymic disorder/depressive disorder. The Board finds that, as a matter of law, service connection is not warranted for dysthmyic disorder/depressive disorder as directly incurred in service. The Court has held that, in such cases where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). IV. TDIU The veteran is claiming entitlement to TDIU. In support of her claim, the veteran testified in October 2007 that she worked eight years for the City of Dallas at the Dallas Love Field Airport as an aviation operator (T. 5) following completion of a vocational rehabilitation problem. (T. 23). She earned approximately $36,000 a year at that job. (T. 23). She discontinued employment and took a few months off before starting her current job. (T. 11). She received a retirement pension and paid off some bills and expenses. (T. 11). She is currently employed as a Detention Officer working at the Oklahoma County Juvenile Detention Center. (T. 4). She is currently is making about $17,000 a year. (T. 23). She has missed approximately 40 hours of work over the past year due to her service-connected disabilities. (T. 4- 5). She monitors juveniles, "kind of like babysitting kids in a way." (T. 12). She has been employed as a Detention Officer since October 2006. (T 12-13). She finds her current work to be more physically and mentally demanding than her prior employment (T. 13). All she does is work and then come home and stay in bed. (T. 13). She asserts that she could not find a current Federal job due to her physical disabilities, and because her Form DD214 notes her to have a personality disorder. (T. 22). She stated that she was recently rejected for vocational rehabilitation within the last eighteen months to one year (T. 24). Under 38 C.F.R. § 3.340(a)(1), total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.16(a) does provide that marginal employment is not substantially gainful employment and thus implies that employment that is more than marginal may be considered to be substantially gainful employment. VA has defined "substantially gainful employment" in the Adjudication and Procedural Manual as "employment at which nondisabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." See M21-1 MR IV.ii.2.F.24.d. (formerly Manual M21-1, Part VI, Section 7.09(7). In view of 38 C.F.R. § 4.16(a) and of the guidance set forth in the Court's precedents, and drawing a helpful but not binding or determinative analogy from Social Security Administration (SSA) regulations which define "substantially gainful activity," see 20 C.F.R. §§ 404.1509, 404.1572(a), the Court held that, where the veteran became employed, as shown by clear and convincing evidence, at a substantially gainful occupation-"i.e., one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income prior to his having been awarded a 100% rating based on individual unemployability"-such employment constitutes, as a matter of law, a substantially gainful occupation and thus "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). Applying the pertinent law to the facts of this case, a preponderance of the evidence is against the veteran's claim for TDIU. The veteran is currently employed as a Detention Officer for the State of Oklahoma, and is receiving an annual salary of approximately $17,000. The poverty threshold is $10,787 for 2007 based on individual under the age of 65. The veteran's annual salary exceeds the poverty threshold. The Board recognizes that the veteran is earning substantially less money at her current job, and that the medical evidence indicates that she would otherwise meet the criteria of unemployability based upon her service-connected disabilities. See December 2005 VA Examination Report. Nevertheless, her income is such that it exceeds the poverty threshold for one person and, represents substantially gainful employment. The veteran's representative advanced a theory of sheltered employment at the October 2007 hearing. Marginal employment may be held to exist, on a fact- found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342 (2000). In this case, the Board notes that the veteran's employment involves substantially reduced responsibilities, for which she is earning substantially less compensation; however, the Board finds that the evidence does not support a finding that the veteran's employment is in a protected environment such as a family business or sheltered workshop. There is no evidence of special accommodation or special designation associated with the veteran's state job. She has maintained a full time position as a Detention Officer for the State of Oklahoma for the past year, earning above the poverty threshold. Although this is difficult for her, to her credit she has succeeded in maintaining this substantially gainful employment. As the preponderance of the evidence is against the claim for TDIU, the benefit-of-the-doubt doctrine does not apply, and a TDIU must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, under the current facts and evidence, the claim for TDIU must be denied. The Board stresses that the veteran retains the right to apply for TDIU benefits in the future, especially should her current employment terminate. ORDER A disability rating in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis and heel spurs is denied. A disability rating in excess of 10 percent for bursitis of the left hip is denied. A disability rating of 30 percent for PTSD, for the period of increased rating claim prior to February 22, 2000, is granted. A disability rating of 50 percent for PTSD, for the period of increased rating claim from February 22, 2000, is granted. Service connection for bilateral knee disorder is denied Service connection for dysthymic disorder/depressive disorder is denied. A TDIU is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs