Citation Nr: 1113635 Decision Date: 04/06/11 Archive Date: 04/15/11 DOCKET NO. 06-25 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to an initial rating for posttraumatic stress disorder higher than 10 percent before January 25, 2010 and an initial rating higher than 30 percent from January 25, 2010. 3. Entitlement to an initial compensable rating for lumbosacral strain. 4. Entitlement to total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1967 to March 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The transcript of the hearing is in the Veteran's file. In March 2009, the Board remanded the claim of service connection for sinusitis and the claims for increase for posttraumatic stress disorder and for lumbosacral strain. As the requested development has been completed, no further action to ensure compliance with the Board's remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The claim for a total disability rating for compensation based on individual unemployability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Sinusitis had onset in service. 2. Before December 2008, posttraumatic stress disorder was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks under the General Rating Formula for Mental Disorders, including the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV) of the American Psychiatric Association, which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the rating criteria; from December 12, 2008, posttraumatic stress disorder equates to occupational and social impairment with reduced reliability and productivity under the General Rating Formula for Mental Disorders (General Rating Formula), including the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV), of the American Psychiatric Association, which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the General Rating Formula. 3. Lumbosacral strain is manifested by flexion greater than 85 degree and a combined range of motion greater than 235 degree without slight limitation of motion, characteristic pain on motion, muscle spasm, guarding, localized tenderness, or objective neurological abnormality. CONCLUSIONS OF LAW 1. Sinusitis was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2010). 2. Before December 12, 2008, the criteria for an initial rating of 30 percent for posttraumatic stress disorder have been met; from December 12, 2008, the criteria for an initial rating of 50 percent for posttraumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). 3. The criteria for an initial rating for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (effective before September 26, 2003); Diagnostic Code 5237 (effective from September 26, 2003, and currently). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the claim of service connection for sinusitis is resolved in the Veteran's favor, VCAA compliance with regard to this claim need not be addressed. On the claim for an initial rating for posttraumatic stress disorder and for lumbosacral strain the RO provided pre- adjudication VCAA notice by letters, dated in November 2003 and in July 2004 on the underlying claims of service connection. Where, as here, the claims have been granted and the initial ratings assigned, the claims have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose of the notice has been fulfilled. Furthermore, once a claim has been substantiated, the filing of a notice of disagreement with the RO's decision as to the rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Dingess, at 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist On the claims for increase, under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO obtained the service records, VA records, and private medical records. The Veteran was afforded VA examinations. The reports of VA examinations are based upon consideration of the medical history and the disabilities are described in in sufficient detail so that the Board's evaluation of each disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to comply with the duty to assist is warranted. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 and 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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). Sinusitis Facts The service treatment records show that Veteran complained of a several symptoms, including a cold, congestion and headache (March 1969), a cold and headache (December 1969), frequent colds, but not sinusitis (June 1970), cold (March 1971), occasional frontal headache (May 1971), nasal stuffiness (November 1972), sinus congestion (September 1973), upper respiratory infection versus sinusitis (November 1973), cold and headache (February 1976), and nasal congestion (March 1976). On separation examination in May 1976, the sinuses were evaluated as normal and sinusitis was not listed in the summary of defects or diagnoses, but sinusitis associated with frequent cold by history was noted. In December 1976, the Veteran complained of nasal congestion. After service, on VA examination in May 1977 the Veteran complained of difficulty breathing, and the diagnosis was nasal congestion due to allergic rhinitis. On VA examination in May 1978, the Veteran stated that he lost time from work because of sinus congestion. VA records show that in December 2002 there was no sinus tenderness. In March 2003, the Veteran denied chronic sinus problems. In a statement in August 2003, the Veteran stated that his sinus problems had greatly increased. VA records show that in February 2004 the Veteran denied chronic sinus problems. On VA examination in July 2004, the Veteran described maxillary facial pressure, occurring twice a year. There was no history of infection. X-rays showed that the paranasal sinuses were clear. The diagnosis was intermittent sinusitis. VA records show that in April 2005 the Veteran denied chronic sinus problems. In a statement in October 2005, the Veteran stated that he was treated for sinusitis in service and that he continued to have sinus problems. VA records show that in August 2007 the Veteran denied chronic sinus problems. In January 2009, the Veteran testified that he has had a sinus problem since service and that he was treated by a private physician. Private medical records from 2000 to 2009 contain no evidence of a sinus infection. On VA examination in January 2010, the Veteran stated that his sinus condition began in service and that he has constant nasal congestion. He denied headaches and purulent discharge. There was no history of incapacitating episodes. The Veteran was on medication for rhinitis. X-rays showed mucosal thickening of the maxillary sinuses. The VA examiner noted that the service treatment records showed six episodes of upper respiratory infections and on one occasion the working diagnosis was upper respiratory infection versus sinusitis. The VA examiner found no evidence of treatment of sinus condition with antibiotics. After a review of the record, the VA examiner expressed the opinion that it was most likely the Veteran had chronic sinusitis and that it was most likely due to the condition treated during service although there was no final diagnosis of sinusitis during service. The VA examiner explained that the rhinitis symptoms during service were consistent with natural progression to chronic sinusitis. Analysis On the basis of the service treatment records, the Veteran complained several times of a constellation of symptoms, including a cold, nasal congestion, sinus congestion, and a frontal headache. On one occasion, the impression was upper respiratory infection versus sinusitis and on separation examination sinusitis associated with frequent cold by history was noted, but the sinuses were evaluated as normal and sinusitis was not listed in the summary of defects or diagnoses. As sinusitis was not confirmed by actual finding or diagnosis, sinusitis was not affirmatively shown to have been present during service and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a) is not established. As symptoms associated with sinusitis were noted, that is, observed during service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. As for chronicity, as the service treatment records lack the documentation of the combination of manifestations sufficient to identify sinusitis versus some other upper respiratory infection, and as there was insufficient observation to establish chronic sinusitis during service, then the claim of service connection may be established by a showing of continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d). As for continuity, after service, in statements and in testimony, the Veteran has asserted continuity of symptomatology since service. For example, on VA examination in May 1977, the Veteran complained of difficulty breathing, and the diagnosis was nasal congestion due to allergic rhinitis. On VA examination in May 1978, the Veteran stated that he lost time from work because of sinus congestion. In a statement in August 2003, the Veteran stated that his sinus problems had greatly increased. On VA examination in July 2004, the Veteran described maxillary facial pressure, occurring twice a year. In a statement in October 2005, the Veteran stated that he was treated for sinusitis in service and that he continued to have sinus problems. In January 2009, the Veteran testified that he has had a sinus problem since service. On VA examination in January 2010, the Veteran stated that his sinus condition began in service and that he has constant nasal congestion. The evidence against continuity consists of VA records that show that in December 2002 there was no sinus tenderness. VA records also show that in March 2003, in February 2004, in April 2005, and in August 2007, the Veteran denied chronic sinus problems. On VA examination in July 2004, X-rays showed that the paranasal sinuses were clear. The diagnosis was intermittent sinusitis. Moreover private medical records from 2000 to 2009, which the Veteran identified as relevant to treatment of sinusitis, do not document any sinus infection. Although the Veteran is competent to describe symptoms, competency differs from credibility and weight of the evidence. Competency is a legal concept determining whether evidence may be considered, that is, admissible, while credibility is a factual determination going to the probative value or weight of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. See Washington v. Nicholoson, 19 Vet. App. 362, 369 (2005). In determining whether the Veteran's statements and testimony are credible, the Board may consider internal inconsistency and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As for the Veteran's statements and testimony that he has had sinusitis since service, the Board finds that the statements and testimony are not credible because of the Veteran's own inconsistent statements, both asserting and denying a chronic sinus condition and the private medical records identified by the Veteran, as supporting his claim, oppose continuity. To the extent the Veteran has asserted continuity, the Board finds the Veteran not credible and the evidence of record does support a finding that there has been continuity of symptomatology since service. Even in the absence of continuity of symptomatology, service connection may be granted for a disease, first diagnosed after service, when all the evidence, including that during and after service establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Although the Veteran as a lay person is competent to describe symptoms of a cold and nasal and sinus congestion, which he can perceive and does not require that he has specialized education, training, or experience to identify, the Veteran is not competent to state that sinusitis was present in service or since service. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness). Also sinusitis is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of sinusitis is medical in nature, that is, not capable of lay observation, and competent medical evidence is required to substantiate the claim. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Also, under certain circumstances, lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). Competency is a question of fact, which is to be addressed by the Board. Jandreau at 1377. As the presence or diagnosis of sinusitis cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses, sinusitis is not a simple medical condition that the Veteran is competent to identify. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a diagnosis of sinusitis. Where, as here, there is a question of the presence or a diagnosis of sinusitis, not capable of lay observation by case law, and sinusitis is not a simple medication condition under Jandreau for the reason expressed, to the extent the Veteran's statements and testimony are offered as proof of the presence of sinusitis in service, the Veteran's statements and testimony are not competent evidence, and the statements and testimony are excluded, that is, not admissible as evidence, and the statements and testimony are not to be considered as competent evidence favorable to claim. As for symptoms described by the Veteran that later support a diagnosis by a medical professional, on VA examination in January 2010, the Veteran described nasal congestion. The VA examiner noted that the service treatment records showed six episodes of upper respiratory infections and on one occasion the working diagnosis was upper respiratory infection versus sinusitis. After a review of the record, the VA examiner expressed the opinion that it was most likely the Veteran had chronic sinusitis. The remaining question is whether the current chronic sinusitis is related to the symptoms in service. Where, as here, the determinative question involves medical causation, that is, evidence of an association or link between the current chronic sinusitis and the symptoms in service, competent medical evidence is required to substantiate the claim, unless such an association is a simple medical condition that a lay person is competent to offer an opinion on. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159. On the question of medical causation, there is competent medical evidence in favor of the claim. On VA examination in January 2010, after a review of the record, the VA examiner expressed the opinion that it was most likely the Veteran had chronic sinusitis and that it was most likely due to the condition treated during service although there was no final diagnosis of sinusitis during service. The VA examiner explained that the rhinitis symptoms during service were consistent with natural progression to chronic sinusitis. With regard to a medical opinion, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). As the evidence on medical causation is favorable to the claim and as there is no evidence against the claim on the question of medical causation, the greater weight of the evidence is in favor of the claim. And the Board need not reach the question of whether the Veteran as a lay person is competent to offer an opinion on causation in this case. In summary, as there is evidence of current chronic sinusitis, evidence of symptoms of sinusitis in service, and evidence of an association between the current chronic sinusitis and the symptoms of sinusitis in service, all the elements of service connection have been met and service connection is established. Claims for Increase Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Posttraumatic Stress Disorder Posttraumatic stress disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, the criteria for 30 percent are 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 normal conversation), 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). The criteria for 50 percent are 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. The criteria for the next higher rating, 70 percent, are occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the diagnosis of posttraumatic stress disorder in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM- IV), of the American Psychiatric Association. The Global Assessment of Functioning 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 the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score from 41 to 50 represents serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score in the range of 51 to 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score in the range of 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. Facts In a rating decision dated in September 1982, the RO granted service connection for adjustment disorder, effective April 22, 1982, and assigned a 10 percent rating. In August 2003, the Veteran sought VA disability compensation for posttraumatic stress disorder. Vet Center records show that the Veteran was initially seen in August 2001 and he was followed at the Vet Center until July 2003. It was noted that the Veteran was working for the U.S. Postal Service. The Veteran complained of stress at work and of marital problems. The Veteran's symptoms included sleep disturbance, depression, nightmares, anger, startle response, and hypervigilance. In April 2004, the Veteran was admitted to VA's Posttraumatic Stress Disorder Day Hospital Program. The Program lasted about seven weeks. The goal of the Program was to reduce the Veteran's depression and symptoms of intrusive thoughts. On intake, it was noted that the Veteran was employed and had been for 27 years with the U.S. Postal Service as a postal clerk. The Veteran was married and three children, now adults, were born of the marriage. The Veteran described his relationship with his wife as good, with his daughters as great, and with his son as fair. The Veteran described problems with anger and verbal altercations directed at co-workers, family, and friends, with suicidal and homicidal ideation without intent, with social isolation even at home, where he repaired alone to the basement, with depression, sleep disturbance, flashbacks, anxiety, nightmares, hypervigilance, poor concentration, and emotional numbing. The Veteran was not on medication. Psychological testing was consistent with severe posttraumatic stress disorder. The Global Assessment of Functioning (GAF) score was 45. In the program, the Veteran completed group psychotherapy and group psychoeducational activities and individual psychotherapy in week five. At the end of the program, the Veteran his symptoms were severe and outpatient treatment was recommended. On VA examination in July 2004, the Veteran stated that he was not on medication, but he had been in counseling for two to three years and he was to start group therapy. The Veteran complained of sleep disturbance, intrusive thoughts, nightmares, anger, and conflicts at work and at home. According to the Veteran the symptoms caused moderate problems at work and in social functioning. The VA examiner described the Veteran as casually dressed and generally pleasant. The Veteran's thoughts were generally organized and goal directed. The Veteran was alert and oriented. There was no suicidal ideation. Insight and judgment were generally intact. Intellectual functioning was at least average. The VA examiner reported that the symptoms caused mild persistent difficulty. The diagnosis was posttraumatic stress disorder with mild to moderate symptoms. The GAF score was 64. According to the examiner, the Veteran's posttraumatic stress disorder symptoms caused mild persistent difficulty. In a rating decision dated in December 2004, the RO granted service connection for posttraumatic stress disorder as a progression of service-connected adjustment disorder and continued the 10 percent rating. The RO did assign a temporary 100 percent rating because of the PTSD Day Hospital Program. At the termination of the temporary total rating, the RO continued the 10 percent rating, effective July 1, 2004. In a statement in October 2005, the Veteran stated that he was depressed and he has weekly panic and anxiety attacks, and daily problems with sleep impairment. In a letter, dated December 12, 2008, L.L., Ph.D., MSW, a Team Leader at a Vet Center stated that the Veteran's symptoms included hyperarousal, re-experiencing of traumatic events and avoidance behaviors, prolonged sleep disturbance, nightmares, daily intrusive memories of his experiences in Vietnam, panic attacks, and avoidance of social settings, family gatherings, and loud noises. Other subjective symptoms included being down most of the time, low energy, isolation; low memory and concentration, and a lack of motivation to begin or complete tasks. The GAF score was 45 and a GAF of 50 in the last year. In January 2009, the Veteran testified that he has been treated for posttraumatic stress disorder since 2001 at a Vet Center, but he is not on medication. The Veteran stated that he has been working at the Postal Service for 31 years, and that he has been married for 30 years. The Veteran described symptoms of nightmares and sleep disturbance. He stated that he has had problems with co-workers and supervisors, but for the last three to four years he has been in job were he does not have to work with others, except for about two hours a day. In April 2009, the Veteran stated that he had taken early retirement, in part, due posttraumatic stress disorder. He stated that he was having increasing conflicts with coworkers and supervisors. On VA examination in January 2010, the VA examiner stated that since the Veteran was last examined in July 2004 the Veteran had no psychiatric hospitalizations, but he was in a support group that met twice a month. The Veteran was married and he had two adult children and on adult child had died in 2008. It was noted that the Veteran retired in February 2009. The VA examiner noted that daily the Veteran got up early and kept himself busy with projects, and currently he was helping a daughter fix up her house. The Veteran was unable to name a close friend since an old friend had died recently. The Veteran complained of trouble sleeping, recurrent dreams and thoughts of being in combat, hypervigilance, depression; short term memory and concentration impairment, anxiety, and avoidance behaviors. The VA examiner noted that the Veteran was in therapy with minimal response to treatment. According to VA examiner, posttraumatic stress disorder was productive of occupational and social impairment with reduced reliability and productivity due to symptoms of flattened affect, panic symptoms more than once a week, difficulty with complex commands, impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The GAF score was 50. In a rating decision in June 2010, the RO increased the rating for posttraumatic stress disorder to 30 percent effective January 25, 2010. Analysis The record shows that the Veteran has symptomatology that is associated with the criteria under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, and symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, which is referred to in 38 C.F.R. Part 4, § 4.130 (rating mental disorders), but not covered in the rating criteria. All of the Veteran's symptoms are considered in the analysis. Neither the number of symptoms, nor the type of symptoms, nor the GAF score is dispositive in determining whether the criteria for the next higher rating have been met. It is the overall effect of the symptoms that determines the rating. Before December 12, 2008, under the General Rating Formula for Mental Disorders and the symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, such as flashbacks, nightmares, intrusive thoughts, there was evidence of 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 normal conversation), due to such symptoms as: depressed mood, anxiety, chronic sleep impairment, mild memory loss, which are the criteria for a 30 percent rating. On VA examination in July 2004, the Veteran not on medication. The Veteran stated that the symptoms caused moderate problems at work and in social functioning. The VA examiner described the Veteran as casually dressed and generally pleasant. The Veteran's thoughts were generally organized and goal directed. The Veteran was alert and oriented. There was no suicidal ideation. Insight and judgment were generally intact. Intellectual functioning was at least average. The VA examiner reported that the symptoms caused mild persistent difficulty. The diagnosis was posttraumatic stress disorder with mild to moderate symptoms. The GAF score was 64. According to the examiner, the Veteran's posttraumatic stress disorder symptoms caused mild persistent difficulty. Under the General Rating Formula for Mental Disorders and the symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, such as flashbacks, nightmares, intrusive thoughts, the evidence does not more nearly approximate or equate to occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impairment of long-term memory, impaired judgment, impaired abstract thinking, and difficulty in establishing and maintaining effective work and social relationships, the criteria for a 50 percent rating. From December 12, 2008, under the General Rating Formula for Mental Disorders and the symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, such as flashbacks, nightmares, intrusive thoughts, there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood; and difficulty in establishing and maintaining effective work relationships, which are the criteria for a 50 percent rating. In a letter, dated December 12, 2008, L.L., Ph.D., MSW, stated that the Veteran's symptoms included hyperarousal, re-experiencing of traumatic events and avoidance behaviors, prolonged sleep disturbance, nightmares, daily intrusive memories of his experiences in Vietnam, panic attacks, and avoidance of social settings, family gatherings, and loud noises. Other subjective symptoms included being down most of the time, low energy, isolation; low memory and concentration, and a lack of motivation to begin or complete tasks. In April 2009, the Veteran stated that he had taken early retirement, in part, due posttraumatic stress disorder. He stated that he was having increasing conflicts with coworkers and supervisors. On VA examination in January 2010, the Veteran complained of trouble sleeping, recurrent dreams and thoughts of being in combat, hypervigilance, depression; short term memory and concentration impairment, anxiety, and avoidance behaviors. According to VA examiner, posttraumatic stress disorder was productive of occupational and social impairment with reduced reliability and productivity due to symptoms of flattened affect, panic symptoms more than once a week, difficulty with complex commands, impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. Under the General Rating Formula for Mental Disorders and the symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, such as flashbacks, nightmares, intrusive thoughts, the evidence does not more nearly approximate or equate to occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships, the criteria for a70 percent rating. Lumbosacral Strain In a rating decision in December 2004, the RO granted service connection for lumbosacral strain secondary to the service-connected left knee disability and assigned a zero percent or noncompensable rating, effective from August 2003. The criteria for rating a disability of the spine were amended in September 2003. The Board is required to consider the claim in light of both the old and new criteria to determine whether an increase is warranted. If the amended rating criteria are favorable to the claim, the amended criteria can be applied only from and after the effective date of the regulatory change. VAOPGCPREC 3-2000. Lumbosacral strain is currently rated zero percent or noncompensable under Diagnostic Code 5237. Criteria for Rating Lumbosacral Strain Prior to September 2003, lumbosacral strain was rated under Diagnostic Code 5295. And another potentially applicable Diagnostic Code was Diagnostic Code 5292. Under Diagnostic Code 5295, the criterion for a 10 percent is characteristic pain on motion. Under Diagnostic Code 5292, the criterion for a 10 percent rating is slight limitation of motion. Effective September 26, 2003, a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) replaced the old Diagnostic Codes 5295 and 5292. Diagnostic Code 5292 was eliminated and the criteria for rating limitation of motion of the lumbar were incorporated in the General Rating Formula. Diagnostic Code 5295 was renumbered as Diagnostic Code 5237 and the criteria for rating lumbosacral strain were also incorporated in the General Rating Formula. Under the General Rating Formula, the criteria for a 10 percent rating are forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. General Rating Formula, Note (1). The normal ranges of motion of the thoracolumbar spine are forward flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, 30 degrees, and rotation, right and left, 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. When rating a disability of the musculoskeletal system, functional loss due to pain, weakened movement, fatigability, and pain on movement are factors to be considered. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts On VA examination in July 2004, the Veteran complained of low back pain since 1998 when he injured his back at work. The pain was described as intermittent, occurring once or twice a month and lasted a week. There was no history of surgery. On examination, the spine was not tender to palpation. The spinal contour was normal. The Veteran had no problem changing positions. Forward flexion was to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. There were no flare-ups of pain that interfered with daily activities. Private medical records show low back syndrome with sciatica beginning in 2003. In May 2007, a MRI showed that the lumbar lordosis was preserved and no acute changes. On VA examination in January 2010, the Veteran complained of low back pain with pain radiating to the right lower extremity without numbness or paresthesia. The Veteran described two flares of pain in the last year with no incapacitating episodes. There was no history of surgery. The VA examiner noted that the Veteran had retired in March 2009, but when he had worked he had not lost time from work because of his low back. The VA examiner found no complaint or diagnosis regarding low back pain in VA records from 2003 to 2008, but low back pain was noted in 2009. On physical examination, the Veteran was not in distress. There was no spasm or tenderness. The straight leg raising test was negative. The strength in the lower extremities was 5 of 5. Sense of vibration, position, light touch, and sharp and dull were grossly intact. Forward flexion was to 110 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. There was no change with repetitive testing and no additional limitation of motion due to painful motion, weakness, impaired endurance, incoordination, or instability. The VA examiner found no evidence of radiculopathy and only subjective sensory radiating pain. Analysis Under Diagnostic Code 5295, prior to September 2003, the criterion for a 10 percent is characteristic pain on motion. On VA examination in July 2004, the spine was not tender to palpation. There were no flare-ups of pain that interfered with daily activities. On VA examination in January 2010, there was no spasm or tenderness. There was no additional limitation of motion due to painful motion. In the absence of evidence of characteristic pain on motion, such as muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in a standing position, the findings do not more nearly approximate or equate to the criterion for compensable rating under Diagnostic Code 5295, considering painful motion, weakness, impaired endurance, incoordination, or instability under 38 C.F.R. §§4.40 and 4.45. Under Diagnostic Code 5292, prior to September 2003, the criterion for a 10 percent rating is slight limitation of motion. On VA examinations in July 2004 and in January 2010, forward flexion was to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. (90 + 30 + 30 + 30 + 30 + 30 = 240 degrees). In July 2004, there were no flare-ups of pain that interfered with daily activities. In January 2010, there was no change with repetitive testing and no additional limitation of motion due to painful motion, weakness, impaired endurance, incoordination, or instability. As the normal ranges of motion of the thoracolumbar spine are forward flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, 30 degrees, and rotation, right and left, 30 degrees, and the combined range of motion of the thoracolumbar spine is 240 degrees, the findings do not more nearly approximate or equate to slight limitation of motion of the lumbosacral spine under Diagnostic Code 5292, considering painful motion, weakness, impaired endurance, incoordination, or instability under 38 C.F.R. §§4.40 and 4.45. Under the General Rating Formula, the criteria for a 10 percent rating are forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. On VA examinations in July 2004 and in January 2010, forward flexion was to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. (90 + 30 + 30 + 30 + 30 + 30 = 240 degrees). As forward flexion is greater than 85 degrees and the combined range of motion is greater than 235 degrees, the findings do not more nearly approximate or equate to the criteria for a 10 percent rating under the General Rating Formula. As for the criteria of muscle spasm, guarding, or localized tenderness for a compensable rating under the General Rating Formula, on VA examination in July 2004, the spine was not tender to palpation and the spinal contour was normal. On VA examination in January 2010, there was no spasm or tenderness. In the absence of muscle spasm, guarding, or localized tenderness, the findings do not more nearly approximate or equate to the criteria for a 10 percent rating under the General Rating Formula. Also, under the General Rating Formula, a separate rating could be assigned for objective neurologic abnormalities. On VA examination in January 2010, the Veteran complained of low back pain with pain radiating to the right lower extremity without numbness or paresthesia. Sense of vibration, position, light touch, and sharp and dull were grossly intact. The VA examiner found no evidence of radiculopathy and only subjective sensory radiating pain. In the absence of objective neurological abnormality, a separate rating is not warranted. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 2009 WL 2096205 (Fed. Cir. July 17, 2009). Here, the rating criteria reasonably describe the Veteran's symptoms and provide for a higher rating for additional or more severe symptoms, which have been shown and are duly accounted for. Therefore the disability picture is contemplated by the Rating Schedule. Consequently, referral for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not required. ORDER Service connection for sinusitis is granted. Before December 12, 2008, the criteria for an initial rating of 30 percent for posttraumatic stress disorder have been met, subject to the law and regulations, governing the award of monetary benefits. From December 12, 2008, the criteria for an initial rating of 50 percent for posttraumatic stress disorder have been met, subject to the law and regulations, governing the award of monetary benefits. A compensable rating for lumbosacral strain is denied. REMAND With a single rating of 50 percent for posttraumatic stress disorder since December 2008 and combined rating of 70 percent or greater, the record raises the claim for a total disability rating for compensation based on individual unemployability, which is not a separate claim, rather it is part of the claim for increase. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the case is REMANDED for the following action: Adjudicate the claim for a total disability rating for compensation based on individual unemployability. If the claim is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs