Citation Nr: 0814504 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-16 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than September 4, 1972 for the grant of service connection for a low back strain. 2. Entitlement to an effective date earlier than September 19, 2003 for the grant of service connection for shell fragment wounds to the back and right flank. 3. Entitlement to an effective date earlier than September 19, 2003 for the grant of service connection for urethral stricture with urinary tract infection and prostatitis. 4. Entitlement to service connection for bilateral hearing loss disability. 5. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for hypertension. 8. Entitlement to service connection for a right knee disability. 9. Entitlement to an effective date earlier than March 23, 2007 for total individual unemployabitlity. 10. Evaluation of residuals of shell fragment wounds of the right flank and back, currently evaluated as 0 percent disabling. 11. Evaluation of residuals of a right ankle shell fragment wound, currently rated as 10 percent disabling. 12. Evaluation of low back strain, currently rated as 20 percent disabling. 13. Evaluation of residuals of left ankle shell fragment wound, currently rated as 10 percent disabling. 14. Entitlement to a rating in excess of 10 percent for post-traumatic stress disorder (PTSD) prior to March 22, 2004. 15. Entitlement to a rating in excess of 30 percent for PTSD from March 22, 2004 to March 23, 2007. 16. Evaluation of PTSD, currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: Clayte Binion, Attorney at Law ATTORNEY FOR THE BOARD E. I. Velez, Associate Counsel INTRODUCTION The veteran had active service from September 1967 to September 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issues of evaluation of residuals of a right ankle shell fragment wound, evaluation of residuals of shell fragment wound of the right flank and back, and evaluation of low back strain are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran filed a claim for service connection for status post shell fragment wound, back and right flank and prostate problems in December 1972. In February 1973 the RO denied the veteran's claims. 2. The veteran did not appeal this decision and it became final. 3. In September 19, 2003 the veteran filed a request to reopen his claim. In December 2003 the RO reopened the claim and granted service connection for shell fragment wound back and right flank. 4. The VA has received new service department records reflecting treatment while in Vietnam. 5. The veteran was separated from active duty in September 1972. 6. The veteran filed a claim for service connection for residuals of shrapnel wound of the low back within one year from separation from service. 7. On June 5, 2003 the veteran filed a claim for service connection for urinary tract infection. In April 2005 the RO granted the veteran's claim for service connection for urethral stricture with urinary tract infections and prostatitis effective June 5, 2003. 8. The appellant did not file a claim or an informal claim for urinary tract infections prior to June 5, 2003. 9. The veteran met the schedular criteria for a TDIU as of March 22, 2004. 10. The veteran has been unemployed since March 10, 2005. 11. Bilateral hearing loss disability and tinnitus were not present in service and an organic disease of the nervous system was not manifested to a compensable degree within one year of separation. 12. Bilateral hearing loss disability and tinnitus are not attributable to any incident of service. 13. Hypertension was not aggravated by the veteran's service connected PTSD. 14. There is no current competent evidence of a right knee disability. 15. The veteran's residuals of a left ankle shrapnel wound are manifested marked limitation of motion. 16. Prior to March 22, 2004, the veteran's PTSD was manifested by anger, depression, flashbacks and intrusive thoughts which did not interfere with his occupational and social functioning with an assigned Global Assessment of Functioning (GAF) score of 70. 17. From March 22, 2004 the service-connected PTSD is shown to be productive of symptomatology that more nearly approximates a disability picture of occupational and social impairment, with deficiencies in most areas as manifested by panic, restlessness, irritability, anger problems, avoidance, hypervigilence, flashbacks, anxiety and irritability. 18. PTSD is shown to be productive of panic, restlessness, irritability, anger problems, avoidance, hypervigilence, flashbacks, anxiety and irritability with GAF scores ranging from 60-54. CONCLUSIONS OF LAW 1. The effective for a grant of service connection for shell fragment wound of the back and right flank is Sepptember 4, 1972. 38 C.F.R. § 156 (2007). 2. The criteria for an effective date prior to September 4, 1972, for a grant of service connection for low back strain, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2007). 3. The criteria for an effective date prior to September 19, 2003, for a grant of service connection for urethral stricture with urinary tract infection and prostatitis, have not been met. 38 U.S.C.A. §§ 5110, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2007). 4. The criteria for an effective date of March 10, 2005, for the award of a TDIU have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.159, 3.340, 3.341, 3.400, 4.1, 4.15, 4.16 (2007). 5. Bilateral hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. § 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 6. Tinnitus was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 7. Hypertension is not proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2007). 8. A right knee disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.304 (2007). 9. The criteria for an evaluation in excess of 0 percent for residuals of shell fragment wound to back and right flank have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code 5326 (2007), 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. 10. The criteria for an evaluation in excess of 10 percent for residuals of a left ankle shrapnel wound been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2007). 11. The criteria for an evaluation in excess of 10 percent for PTSD, prior to March 22, 2004, have not been met. U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2007). 12. PTSD is 70 percent disabling effective March 22, 2004. 38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2007). 13. The criteria for an evaluation in excess of 70 percent for PTSD, have not been met. U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. To be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) a VCAA 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 supports the claim, or something to the effect that the claimant should "submit any additional evidence that supports your claim." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The Board notes that in Mayfield v. Nicholson, 444 F. 3d. 1329 (2006), the Federal Circuit Court held that the VCAA notice must be provided prior to the initial decision or prior to readjudication, and such duty to notify cannot be satisfied by post-decisional communications. The notices in this case predated the rating decisions. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The timing requirement enunciated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), applies equally to all five elements of a service connection claim. Id. The Board finds that the VA's duties under the VCAA and the implementing regulations have been fulfilled with respect to the veteran's claims. In VCAA letters of May 2003, August 2003, May 2004, June 2005, August 2005, and March 2006 the appellant was provided adequate notice as to the evidence needed to substantiate his claim. He was informed of the evidence necessary to establish entitlement, what evidence was to be provided by the appellant and what evidence the VA would attempt to obtain on his behalf; it also in essence told him to provide relevant information which would include that in his possession. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. In this case, the Board finds that the essential fairness of the adjudication has not been affected and therefore any presumption of prejudice is rebutted. ; and, he has been represented during the appeal period. With regard to the requirement of notice with respect to the degree of disability and the effective date of the award as required by Dingess, supra, the Board finds that the appellant's claim is being denied, therefore there can be no possibility of prejudice to the appellant even if the appellant was not informed of the same in a timely manner. Moreover, the records shows that the veteran had actual knowledge of the requirements for a higher rating and for an earlier effective date and the essential fairness of the process has not been affected. The Board notes that in 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. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). 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 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. Vazquez-Flores, slip op. at 5-6. In regards to the issues of the evaluation of GERD, cognitive disorder and bilateral bunions, the Board finds that while the preadjudicatory notice was inadequate, the essential fairness of the process has not been affected. The record shows the veteran was provided copies of the rating decision and notice as to how to appeal the RO's rating decisions, and he did so. In Statements of the Case (SOC) of April 2005 and May 2007, the appellant was provided with all of the relevant Diagnostic Codes in his case and he showed understanding of the same when he asked the RO to request records which he believed would show he was entitled to a higher rating and when he submitted additional evidence he believed would show entitlement to a higher rating. Furthermore, in a letter of March 2006 he was provided with examples of the medical and lay evidence he may submit to substantiate his case. Subsequent to the SOC and the May 2003and March 2006 letter the appellant's claim was readjudicated in subsequent Supplemental Statements of the Case . Therefore, the appellant was afforded the required due process. Furthermore, the Board notes that the symptoms required to meet the criteria for increased evaluations in the veteran's case, are symptoms that a reasonable person with his disabilities would know to report. Moreover, VA outpatient treatment records and examination reports note the veteran reporting symptoms associated with the disabilities. Finally, the Board notes that the veteran is represented by counsel who is presumed to be aware of the criteria required for an increased evaluation. As such, actual knowledge on the part of the veteran can be presumed. The veteran was provided with the notice and was given the opportunity to submit additional evidence, he was provided time to submit the same and he was afforded subsequent due process. Although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). In connection with the current appeal service medical records, private medical records and VA outpatient treatment records have been obtained. The veteran was afforded a VA examination. Therefore, the Board finds that the VA has satisfied its duties to notify and to assist the claimant in this case. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Legal Criteria and Analysis A. Effective date A specific claim in the form prescribed by the Secretary of the VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a); see generally 38 C.F.R. § 3.400. If a claimant files an application for service connection with VA, and the claim is disallowed, he has the right to appeal that disallowance to the Board. See, e.g., 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the claimant does not initiate an appeal within one year, or if the claimant fails to perfect the appeal by filing a timely substantive appeal, or if the claimant initiates a timely appeal and the appeal is later withdrawn or denied, the disallowance becomes final. See 38 C.F.R. §§ 20.204, 20.302, 20.1100, 20.1103. Any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 U.S.C.A. §§ 5110(a), (i), 5108; 38 C.F.R. §§ 3.156(c), 3.400(q), (r). Shell fragment wound back and right flank Service connection for shell fragment wounds of the right flank and back was denied in a February 1973 rating decision. It was noted that the service medical records were incomplete. The veteran did not report for his VA examination although it was reported that the disability was not found on the last examination of May 11, 1972. However, the separation examination was abnormal for the lower extremities and the spine. The examiner noted that there were fragment wounds to the right lumbar area, right ankle and left ankle, and the rating decision noted that the records were positive for fragment wounds of the right lumbar area and ankles. Moreover, since the decision of February 1973, the AOJ received pertinent service personnel records which showed that the veteran was a patient while in the Vietnam from February to March 1969. Under 38 C.F.R. § 3.156 (c) these records are a basis for reconsideration of the claim and a basis for the granting of an earlier effective date . Since there is evidence that the veteran had fragment wounds to the back and ankle at separation and considering that service records have been associated with the record which show that the veteran was a patient in Vietnam, the Board finds that an earlier effective date is warranted for shell fragment wounds of the right flank and low back to the day after separation form service, or September 4, 1972. Low back strain The veteran was discharged from active duty on September 3, 1972. The veteran filed a claim for service connection for shrapnel wounds to the back in December 1972. The RO granted service connection for low back strain in February 1973 with an effective date of September 4, 1972. Generally, the effective date of an award of compensation shall be fixed in accordance with the facts found, but shall not be earlier than date of receipt of application therefore. 38 U.S.C.A. § 5110(a). An exception exists if an application is received within one year of date of discharge or release in which case the effective date of the award will be the day following the date of discharge. 38 U.S.C.A. § 5110(b)(1). In this case, the veteran was released from service on September 3, 1972. An original claim for compensation was received in December 1972, this was within one year of separation from service; therefore, the provisions of 38 U.S.C.A. § 5110(b)(1) are applicable. As mentioned above, in such cases, the date of the award will be the day after release from active duty. That was precisely what was done in this case. There is no legal basis on which to grant an earlier effective date. Urethral stricture with urinary tract infections and prostatitis The veteran filed a claim for service connection for prostatitis in December 1972. The RO denied the claim in February 1973. The veteran did not appeal the decision. The next communication received from the veteran was not until June 5, 2003 when the veteran filed an informal claim for service connection for urinary tract. In April 2005, the RO granted service connection for urethral stricture with urinary tract infections and prostatitis effective June 5, 2003. The RO's prior determination denying the veteran's request for service connection for prostate problems in February 1973 is final. See 38 U.S.C.A. § 7105. No further claim was received from the veteran or his representative until the June 2003 request to reopen the claim. Looking at the time period after the final decision of December 1973, the Board finds that prior to June 5, 2003, there was no claim, informal claim, or an intent to file a claim for a psychiatric disorder. None of the documents submitted since the unappealed rating decision of February 1973 and June 5, 2003 the date of the receipt of the informal claim for urinary tract, addressed the issue of shell fragment wound back and right flank and cannot be considered a claim, an informal claim, or an intent to file a claim. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). A 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. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A VA examination report of May 2006 notes that the examiner opined that given the moderate level of impairment in social functioning as well as increased irritability, disturbed sleep, daily intrusive thoughts, significant hypervigilence and exaggerated startle response, it was the examiner's opinion that the veteran would be unable to obtain or maintain gainful employment in his normal occupational environment. The veteran was awarded TDIU effective March 23, 2007 in a rating decision of November 2007. In the opinion of the Board, the record reflects that the veteran has been unable to secure or follow substantially gainful employment because of his service-connected PTSD and that he has been unemployed since March 10, 2005. After this date, the evidence on file, including the VA examinations, outpatient treatment records, and private medical evidence, reflect that the veteran was unemployed. A VA Form 21-4192, Request for Employment Information, of June 2005 notes that the veteran worked for Midas Muffler from July 7, 1984 through March 10, 2005. It was also noted that he was terminated from his employment due to unreliability based on too many sick days. There is no evidence that the veteran has been employed since that date. The Board notes that there is a conflict in the forms regarding the year of the termination of employment. While in one section it states the veteran was employed through March 2005, in two other sections it states that the veteran's last day of work and last payment were in March 2003. However, at a VA examination of September 2005, the veteran stated that he had worked at a muffler shop until about 4 and a half months before. Therefore, the Board finds that the discrepancy in the dates was an error and that the veteran, by his own admission, was employed through the year 2005 and not 2003, and therefore, will accept the date of March 10, 2005 as the date in which his employment ended. Moreover, the Board notes that the evidence shows that the veteran's disability has not significantly changed since May 2006. At a VA examination of March 2007 the veteran was found to be unemployable because of his PTSD and his associated angry moods and irritability and intolerance of others. In essence these are the same reasons provided by the examiner in May 2006 when it was first determined that the veteran was not employable. Since the veteran's condition has not significantly changed an earlier effective date for the grant of a TDIU to March 10, 2005 is warranted. B. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). An organic disease of the nervous system will be presumed to have been incurred in service if manifest to a degree of 10 percent within one year of discharge from a period of service. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing loss disability and tinnitus The appellant is claiming service connection for hearing loss and tinnitus. He alleges that he suffers from these conditions since service when he was exposed to noise while serving during the Vietnam War. Initially, the Board notes that the veteran is claiming that his hearing loss and tinnitus are due to noise exposure while in combat due to helicopter turbine engines, heavy artillery and 8 inch battery. The veteran's discharge certificate, DD Form 214, show that the veteran is entitled to wear the Purple Heat, the Combat Infantry Badge, the Air Medal, the Vietnam Gallantry cross with Palm, the Vietnam Service Medal and the Army Aviation Badge. Therefore, the Board finds that the provisions of 38 U.S.C.A. § 1154(b) are for application in regards to the issue of service connection for bilateral hearing loss disability and tinnitus. As the veteran's allegations of noise exposure are consistent with the nature and circumstances of his service, the Board will accept that he was exposed to noise while in service. After carefully reviewing all evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and tinnitus. The preponderance of the evidence shows that the veteran's bilateral hearing loss and tinnitus were not manifest in service or within one year of service discharge, and that they are unrelated to any incident of service, including exposure to noise while in combat A VA examination report of June 2004 notes diagnoses of bilateral high frequency sensorineural hearing loss and tinnitus. Therefore, the issue remaining is whether the veteran's current bilateral hearing loss disability and tinnitus are related to service. At the veteran's separation examination of May 1972 no hearing loss or tinnitus was reported. VA examination report of June 2004 notes that the veteran reported that he was exposed to noise while in service and that his post service noise exposure was minimal. He gave a 10 year history of progressive hearing loss and a 7-8 year history of bilateral progressive tinnitus. After a review of the service medical records the examiner opined that "[i]t is less likely than not that the current hearing loss is related to military noise exposure." He further opined that "it is less likely than not that the veteran's current tinnitus is related to military acoustic trauma." A July 2004 report from the veteran's private physician states that consistent with VA findings, an examination of the veteran revealed he has significant neurosensory hearing loss bilaterally. He stated that this was consistent with the amount of acoustic trauma sustained by a combat helicopter pilot. He further stated that in his opinion he feels that "it is more likely than not that noise exposure in a combat helicopter contributed to [the veteran's] hearing loss." In a letter of May 2005, he stated that he reviewed the veteran's service record (all of the veteran's DD 66's), and after a personal interview with the veteran, his review of the records reinforce his opinion that hearing loss was "more likely than not caused by acoustic trauma during his military service." After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for bilateral hearing loss disability and tinnitus. The preponderance of the evidence indicates that bilateral hearing loss disability and tinnitus were not manifest in service or within one year of service discharge. The first evidence of record of a complaint of bilateral hearing loss disability is in September 2003 when the veteran filed a claim for service connection for bilateral hearing loss which is 31 years after separation from service. Furthermore, the Board notes that at the VA examination of June 2004 the veteran reported a 10 year history of bilateral hearing loss and a 7-8 year history of tinnitus. Even accepting the veteran's reports of bilateral hearing loss dating 10 years prior to the VA examination and of tinnitus 7-8 years prior to the examination, the earliest account of hearing loss or tinnitus is not until 21 years after service. The Board acknowledges that the veteran's private physician has provided opinions which state that the veteran's bilateral hearing loss disability is due to noise exposure while in service. However, the Board notes that the veteran's private physician does not provide an explanation for the remote onset of the veteran's bilateral hearing loss, 21 years after separation from service. On the other hand, the VA examiner, noted the veteran's report of a remote onset of bilateral hearing loss and tinnitus after service and provided a more complete historical background including post service noise exposure. The Board finds the VA examiner's opinion to be more reliable and consistent with the evidence of record. Of note is also the veteran's own report that his bilateral hearing loss started only 10 years prior to the VA examination of June 2004 and his tinnitus started only 7-8 years prior to the examination. Furthermore, the Board notes that the veteran filed a claim for service connection within a year of separation from service, however, he did not claim bilateral hearing loss or tinnitus. The Board finds the veteran's silence while otherwise seeking compensation for other disabilities to be negative evidence. The Board is fully aware of the provisions of 38 C.F.R. § 3.303(d). However, the private medical opinion is conclusory and far less convincing than the VA opinion. Finally, the Board notes that, in regards to the veteran's tinnitus, the only medical opinion of record is the VA examiner's opinion of June 2004 which states that tinnitus is not due to service. This opinion stands uncontradicted by any other medical opinion of record and there is no basis to question the opinion. The preponderance of the evidence establishes that bilateral hearing loss disability tinnitus were not present during service and were not manifest to a compensable degree within one year of separation from service. The service records are silent for complaints, findings, or manifestations of bilateral hearing loss disability and tinnitus. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert, supra. Hypertension In this case, the appellant seeks service connection for hypertension as secondary to the service connected PTSD. He alleges that his hypertension is aggravated by his service connected PTSD. At the outset the Board notes that it is not argued, and the evidence does not show, that hypertension was manifested in service or within the first post-service year. Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). The Court has also held that service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). When aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Thus, in this case, in order to warrant service connection for hypertension on a secondary basis, the evidence must show that it was caused or aggravated by a service-connected disease or injury. The Board notes that 38 C.F.R. § 3.310 was amended on September 7, 2006. The amendment is restrictive and is to be applied prospectively, it is not for application in the present claim. After a careful review of the evidence of record, the Board finds that service connection for hypertension is not warranted. The veteran asserts that his hypertension has been aggravated by his PTSD. A VA examination report of October 2003 notes that the veteran reported that his hypertension began approximately 10 years before the examination. He further reported that he believed his service connected PTSD makes his blood pressure go up. He stated that while he is on medication for his high blood pressure, it is not under control. The examiner noted that there were no cardiovascular symptoms, the veteran's EKG was always normal, and a review of his systems was negative otherwise. The veteran was diagnosed with essential hypertension. After a review of the veteran's records the examiner opined he did not believe that the veteran's blood pressure is caused by his service connected PTSD. The evidence shows that the veteran's hypertension was not caused or aggravated by his service connected PTSD. While the veteran has been diagnosed with hypertension, there is no evidence of a relationship between the veteran's hypertension and PTSD. In fact, the only medical opinion of record states that the veteran's hypertension is not related to the veteran's PTSD. The examiner's opinion was rendered after examining the veteran and reviewing his records. It is competent and reliable and uncontradicted by any other competent evidence of record. In essence the only evidence of record of a link between the veteran's PTSD and his hypertension are the veteran's own assertions. However, the Board notes that the veteran is not competent to render opinions on medical causation. See Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, service connection is denied. Right knee injury The veteran is claiming service connection for a right knee injury. After a careful review of the evidence of record, the Board finds that the evidence is against a finding of service connection for residuals of a right knee injury. A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223. 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Initially, the Board notes the appellant does not assert that his claimed right knee injury is a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application in this matter. The veteran asserts that he injured his right knee in February 1970 while stationed at Ft. Benning, Georgia. Service medical records are completely silent for any complaints of or treatment for a right knee injury. A separation physical of May 1972 noted the veteran's lower extremities as abnormal. Abnormalities were noted regarding the veteran's right ankle, but did not list any abnormalities related to the veteran's knees. Service connection requires evidence of a current disability. Without competent evidence of a current disability due to a right knee injury or residuals of a right knee injury, service connection must be denied. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. 223. There is no evidence of a current right knee disability. While the veteran has claimed service connection for a right knee disability, there are no post service records of complaints of or treatment for a right knee disability. Furthermore, the Board notes that the veteran has had numerous VA examinations and in none of the examinations has the veteran complained of a right knee disability. In sum, the only evidence of a current right knee disability comes from the veteran's own assertions. However, the Board notes that while the veteran is competent to report symptoms, as a layperson, he is not qualified to render an opinion concerning questions of medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Without a diagnosis of a right knee disability or residuals of a right knee injury service connection cannot be granted. C. Rating PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Under the rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411 (PTSD) (2006), a 100 percent evaluation is provided where there is 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. A 70 percent evaluation is provided where there is 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 or hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo- type speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent evaluation is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130 (2006). In evaluating psychiatric disorders, it must be shown that industrial impairment is the result of actual manifestations of the service-connected psychiatric disorder. The severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. 38 C.F.R. § 4.130 (2006). The evaluation of the level of disability is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the GAF score does not fit neatly into the rating criteria, the GAF score is evidence. Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). 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, and 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). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging from 31-40 reflect some impairment in reality testing or communication (e.g., speech is at time illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See Id. at 242. In reaching a determination in this case, the Board has considered the whole of the evidence, to include the appellant's statements, the assigned GAF scores, and the medical opinions. A VA examination of October 2003 notes that the veteran reported daily flashbacks, intrusive thoughts, anger problems and depression. He was diagnosed with PTSD mild, chronic. He was assigned a GAF score of 70. VA outpatient treatment records of March 2004 note that the veteran sought treatment for his PTSD. He reported symptoms of nightmares with increased frequency due to flashbacks related to combat. He stated he was afraid of hurting his wife. VA outpatient treatment records of May 2004 note that the veteran's speech had normal rate, volume, tone and rhythm. His mood was dysthymic. His affect was congruent His thoughts were coherent and goal oriented. He denied any audiovisual hallucinations and none were noted. He was not delusional, suicidal, or homicidal. He was alert and oriented times 4. His concentration was intact and his memory for immediate, recent and remote events was intact. His insight and judgment were good. He was assigned a GAF score of 60. A July 2004 letter from a VA psychologist notes that the veteran had been employed throughout his life. He noted that the veteran reported significant sleeping disorders including nightmares; reports of frequent intrusive combat memories; difficulty interacting with people; avoiding crowds; and problems coping with job-related stress. He was assigned a GAF of 60. VA outpatient treatment records of August 2004 note that the veteran reported he retired from his job as manager of an auto repair shop on March 31, 2003 due to his irritability and intense anger. VA outpatient treatment records of September 2004 note that the veteran reported symptoms of nightmare, intrusive thoughts , depression, anxiety, hypervigilence, avoidance, and irritability. He denied suicidal and homicidal thoughts. He was assigned a GAF score of 54. VA examination report of May 2006 notes that the veteran stated he was still married to his wife of 28 years. He was alert and oriented times 4. He appeared generally cognitively intact and of average or better intellectual abilities. Eye contact was fair. He described his current mood as depressed and guilty. Affect was broad although generally congruent with his reported mood. He denied any suicidal or homicidal thoughts. He denied auditory or visual hallucinations. Thought process was linear and coherent. Insight and judgment were fair. He continued to report recurrent and intrusive distressing thoughts and images from combat. He also reported recurrent nightmares. He reported symptoms of increased arousal and avoidance of outside stimuli. He exhibited occupational and moderate social functioning impairment. The examiner opined that due to the veteran's PTSD symptoms, he would be unable to obtain or maintain gainful employment in his normal occupational environment. He was assigned a GAF score of 55. A VA examination report of April 2007 notes that the veteran reported nightmares three to four times a week. He further reported startled feelings, hypervigilence and always being on the verge of anger. He also reported flashback two to three times a day. His thought process was logical, coherent and relevant. He was well dressed and well groomed. He exhibited good social skills. He was oriented to time, place, person and situation. His affect was spontaneous and reasoning was good. He had no psychomotor slurring or agitation. Verbal comprehension was good, but concentration was poor. He reported anxiety, panic attacks, depression, insomnia or crying spells, anhedonia and nightmares. He denies ever having suicidal or homicidal ideals, or psychotic symptoms. He indicated racing thoughts and anger control problems. It was the examiner's opinion that the veteran was unemployable due to his PTSD symptoms. At the outset the Board notes that the veteran is appealing the original assignment of a disability evaluation following an award of service connection for PTSD. In such cases, the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In December 2003, the RO granted service connection for PTSD and assigned a 0 percent evaluation effective June 15, 2003. In a rating decision of April 2005, the RO increased the veteran's evaluation of PTSD to 10 percent disabling effective June 15, 2003, the date of the claim, and to 30 percent effective March 22, 2004. In November 2007, the RO increased the veteran's evaluation of PTSD to 70 percent disabling, effective March 23, 2007. The RO has assigned a staged rating. Clearly a staged rating may be assigned when appropriate. Regulations establish that different examiners, at different times, will not describe the same disability in the same language. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history. When any change in evaluation is to be made the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in thoroughness of the examination. See 38 C.F.R. §§ 4.2, 4.13. The Board has been presented with differing medical reports and the veteran's own statements. Throughout the appeal period, the veteran has asserted that his service-connected disabilities were worse. This is evidence that must be considered. However, in this case, the Board concludes that during the course of the appeal, there has been an actual change in the degree of disability rather than a difference in skill of the individual examiners. The Board agrees that a staged rating is warranted. However, the Board does not agree with all the dates of the evaluation selected by the AOJ. Accordingly, a staged, but different, evaluation is warranted. Evaluation prior to March 22, 2004 After a careful review of the evidence of record the Board finds that an evaluation in excess of 10 percent for PTSD prior to March 22, 2004 is not warranted. The veteran's overall disability picture is best represented by a 10 percent evaluation. The evidence does not show occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss. Rather, the evidence establishes that the veteran was employed and owned his own business. While the veteran did exhibit symptoms of anger, depression, flashbacks and intrusive thoughts, these did not interfere with his occupational and social functioning. Furthermore, the veteran was married with children. Finally, the Board notes that his GAF score was 70 at the time which was reflective of mild symptoms. Based upon the foregoing, the Board finds that an evaluation in excess of 10 percent prior to March 22, 2004 is not warranted. Evaluation from March 22, 2004 After a careful review of the evidence of record the Board finds that an evaluation in excess of 30 percent for PTSD from March 22, 2004 to March 23, 2007 is warranted as the veteran's symptoms more closely approximate a 70 percent evaluation. On review of the evidence of record, the Board finds that for the period from March 22, 2004 to March 23, 2007, the veteran's PTSD is most appropriately evaluated as 70 percent disabling. It is clear from the evidence that at least as of March 22, 2004, the veteran's PTSD symptoms worsened. The evidence since October 29, 2004 reveals subjective and objective complaints of flashbacks, intrusive thoughts, panic, anxiety, irritability, anger problems, avoidance, and hypervigilence. GAF scores progressively worsened from 70 to 60 to 54 in a matter of months. Furthermore, by March 2005, the veteran was unable to obtain or maintain gainful employment in his normal occupational environment due to his PTSD symptoms. The evidence shows that the veteran's symptoms worsened during the evaluation period from March 22, 2004 to March 23, 2007, and finds that the veteran's overall disability picture is best represented by a 70 percent evaluation considering the progressive worsening of the veteran's symptoms. Evaluation in excess of 70 percent The assignment of the 70 percent evaluation as of March 22, 2004 now creates a more uniform rating. However, the Board must still consider whether a higher evaluation is now warranted for any time frame. After a careful review of the evidence of record the Board finds that an evaluation in excess of 70 percent for PTSD is not warranted. On review of the evidence of record, the Board finds that for the period beginning on March 22, 2004 an evaluation in excess of 70 percent is not warranted. In this regard the Board notes that the evidence of record since March 22, 2004 reveals subjective complaints of depression, anxiety, flashbacks, intrusive thoughts, nightmares, irritability, and social isolation. Objectively, the record demonstrates anger problems, poor concentration, intolerance of others, poor tolerance to stress, depression, flashbacks and nightmare. Furthermore, as of September 2006 the veteran has been considered unemployable due to his PTSD symptoms. GAF scores since that time have ranged between 60-54. In the absence of evidence showing greater severity of the service-connected disability, the Board concludes that the veteran's PTSD is most appropriately evaluated as 70 percent for this period. The evidence does not show 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. VA examinations noted that the veteran denied any homicidal ideations or suicidal thoughts. While his hygiene was noted not to be the best, it was not stated that he was incapable of maintaining minimal personal hygiene. The veteran was consistently noted to be oriented as to time and place and to have normal recent memory. Furthermore, he was noted to have been married for 28 years and to have been employed until he retired. For the foregoing reasons, the Board finds that an evaluation in excess of 70 percent from October 22, 2004 is not warranted. Residuals of left ankle shell fragment wound Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. §§ 4.10, 4.40, 4.45. Under the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5271, a 10 percent evaluation is assigned for moderate limitation of motion of the ankle, and a 20 percent evaluation is warranted for marked limitation of motion. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non- weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2004). A VA examination report of June 2003 notes that the veteran had a BB sized knot just above the left lateral malleolus which was slightly tender. There was no redness or irritation around the wound. Otherwise, the left ankle had completely normal range of motion. An April 2004 letter form the veteran's private physician notes that an x-ray of the veteran's left ankle revealed a metallic fragment in the soft tissues to the lateral malleolus of the left fibula. There was no bony damage appreciated. A VA examination report of June 2004 noted a palpable square metallic fragment just above the left lateral malleolus. There was no scar visible and the area was non-tender. A VA examination report of May 2006 noted a 2 cm fragment that is under he skin, just above the lateral malleolus. The area was non-tender. Range of motion of the left ankle was dorsiflexion and plantar flexion 20 degrees without pain. You could hear a crack on flexion. There was 20 degrees of inversion and 20 degrees of eversion without pain. There was no change in range of motion, endurance, incoordination, fatigability, or pain levels with repetitive motion. There was a 4 cm scar on the left lateral malleolus which was well healed. There was no disfigurement or ulceration and no tenderness. There was no tenderness on palpation of malleoli. It was noted he could dorsiflex 5 degrees and plantarflex 10 degrees. He had 5 degrees of inversion and eversion without pain . There was no change in range of motion or endurance in coordination, fatigability or pain level with repetitive motion. He was assessed with fragment scar of the left ankle. A VA examination report of March 2007 notes the veteran left ankle to be normal appearing without any effusion. There was a superficial shrapnel fragment 4 cm proximal and anterior to the lateral malleolus. This was small and barely palpable. It was non-tender with no signs of inflammation or infection. There was no ligamentous instability. The examiner noted a global exaggerated tenderness to palpation of the entire ankle joint. Range of motion using DeLuca criteria was plantar flexion 20 degrees and dorsiflexion 10 degrees. It was noted the veteran was unable to actively invert and evert his ankle. Passive inversion was 30 degrees and eversion was 15 degrees. It was noted the veteran complained of pain through the entire arc of plantar and dorsiflexion. The examiner noted exaggerated complaints of pain on passive eversion/inversion range of motion. X-rays revealed a 3.4 mm fragment of metallic density representing a foreign body in the soft tissues anterolaterally. There was no evidence of fracture or dislocation. There was a large calcaneal spur. He was assessed with left ankle superficial wound. The veteran is currently evaluated based on limitation of motion of the left ankle. He has been assigned an evaluation of 10 percent disabling under 5271. After a careful review of the evidence of record the Board finds that the preponderance of the evidence is in favor of an evaluation in excess of 10 percent disabling. With regard to the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5271, normal dorsiflexion of the ankle is from 0 degrees to 20 degrees. Normal plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. 4.71, Plate II (2007). While range of motion was normal in June 2003, in May 2006 plantar flexion was to 20 degrees with normal being 45 degrees. However, the VA examination report of May 2006 notes a second set of range of motion measurements which appear to be associated with the left ankle. A 4 cm scar was noted on the left lateral malleolus which was followed by findings of range of motion of dorsiflexion to 5 degrees and plantearflexion to 10 degrees; inversion and eversion to 5 degrees without pain. In March 2007 plantar flexion was to 10 degrees. The examiner noted a global exaggerated tenderness to palpation of the entire ankle joint. It was noted the veteran was unable to actively invert and evert his ankle. Passive inversion was 30 degrees and eversion was 15 degrees. It was noted the veteran complained of pain through the entire arc of plantar and dorsiflexion. Looking at the examination findings in the light most favorable to the veteran the Board finds that the range of motion more closely approximates a marked limitation of motion of the left ankle. While it is unclear whether both ranges of motion reported at the May 2006 examination are of the left ankle, the second set of degrees of range of motion were provided related to a scar of the left malleolus. The RO did no seek clarification of the examination report and therefore, the Board will interpret the examination in the light most favorable to the veteran. These findings of the May 2006 examination of dorsiflexion of 5 degrees when normal is to 20 degrees and plantar flexion of 10 degrees when normal is to 45 degrees show that the veteran has marked limitation of motion of the left ankle. Furthermore, the Board notes that plantar flexion has been consistently reported as 10 degrees from a normal of 45 degrees. This shows marked limitation of motion. Thus, the Board finds that the disability most closely approximates a rating of 20 percent disabling. In regard to the veteran's scar associated with his left ankle shrapnel wound, the Board notes that a separate evaluation is not warranted. During the May 2006 VA examination a 4 cm scar on the left lateral malleolus which was well healed. However, there is no evidence of tenderness or pain associated with the scar. 38 C.F.R. § 7804. In addition, the scar measures 4 inches. Therefore, the scar does not meet the criteria of an evaluation under Diagnostic Code 7802 either, which requires an area of 144 square inches to warrant an evaluation. The evidence does not show that the scar is not stable, and thus, an evaluation under Diagnostic Code 7803 is not warranted. Thus, a separate evaluation for a left ankle scar is not warranted. Furthermore, the veteran is not entitled to a higher evaluation under the Diagnostic Codes for muscle injuries of the foot and leg, Diagnostic Codes 5310-5312, as the medical evidence shows that the wounds were superficial and there is no evidence of muscle involvement. ORDER An effective date earlier than September 4, 1972 for the grant o f service connection for low back strain is denied. An effective date earlier than September 19, 2003 for the grant of service connection for urethral stricture with urinary tract infection and prostatitis is denied. An effective date of September 4, 1972 for the grant of service connection for shell fragment wound to back and right flank is granted. Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. Service connection for a right knee disability is denied. Service connection for hypertension is denied. An effective date of March 10, 2005, is granted for the award of a total disability rating based on individual unemployability. An evaluation in excess of 10 percent disabling for residuals of left ankle shell fragment wound is denied. For the period prior to March 22, 2004, entitlement to a rating in excess of 10 percent for PTSD is denied. For the period from March 22, 2004 to March 23, 2007, entitlement to a 70 percent rating for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a rating in excess of 70 percent for PTSD is denied. REMAND The veteran is seeking a higher rating for his service connected residuals of a right ankle shell fragment wound, residuals of a shell fragment wound of the back and right flank, and low back strain. The Board notes that the VCAA requires that VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). The VA is obligated to conduct "'a thorough and contemporaneous medical examination'" when necessary. Porcelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When medical evidence is not adequate, the VA must supplement the record by seeking an advisory opinion or ordering another examination. 38 C.F.R. § 3.159(c)(4)(i). See Littke v. Derwinski, 1 Vet. App. 90 (1991). The Board finds that the VA examinations for the ankle and the back are inadequate to properly assess the current level of the veteran's disabilities. In regards to the back, the Board notes that the medical evidence suggests that the veteran may have sustained a through and through wound to the lower back, however an actual determination of the same has not been made and he has not had a muscle injury examination. In regard to the veteran's ankle, the Board notes that adequate range of motions have not been reported and limitation of motion of the ankle has not been properly assessed. Furthermore, the Board notes that the issue the evaluation of low back strain is inextricably intertwined with the issue of the evaluation of residuals of shell fragment wound of the right flank and back. Therefore, this issue must be readjudicated after the issue of evaluation of residuals of shell fragment wound of the right flank and back has been fully developed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule a VA examination to determine the current level of disability of the veteran's service connected residual of a right ankle shrapnel wound. The examiner should specifically note the range of motion of the right ankle, should report whether any limitation of motion found is moderate or marked, and should address limitation of motion considering the DeLuca factors. The claims folder should be made available to the examiner. 2. The AOJ should schedule a VA examination to determine the current level of disability of the veteran's shell fragment wounds of the lower back and right flank. The examiner must be familiar with muscle damage injuries. The examiner should specifically determine the path of the missile which caused the shell fragment wounds to the low back and right flank and should identify any muscle group that was affected based on the history provided. The examiner should specifically determine if there was any muscle through and through injury and the current level of function of the spine. 3. After completing any additional development deemed necessary, the AOJ should readjudicate the intertwined claim for evaluation of low back strain. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs