Citation Nr: 1109804 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 06-15 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), rated 30 percent disabling prior to October 17, 2007, and 50 percent disabling since October 17, 2007. 2. Entitlement to a rating in excess of 20 percent for a right knee disability, to include service connection for right knee arthritis. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to June 1968 and from June 1970 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama and the Appeals Management Center in Washington, D.C. The Veteran testified at a hearing before the Board in September 2009. The claims were remanded by the Board for additional development in January 2010. At that time the Veteran's right knee disability was rated as 10 percent disabling. In an April 2010 rating decision, the right knee disability rating was increased to 20 percent effective January 13, 2005, the date of the claim, and the PTSD rating was increased to 50 percent effective October 17, 2007, the date the medical evidence showing a factually ascertainable increase. However, as those grants do not represent total grants of the benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. During the entire appeal period at issue, the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. 2. The Veteran's right knee disability has been manifested by moderate instability with no subluxation and by a noncompensable limitation of flexion and normal extension, with X-ray evidence of arthritis. 3. A surgical scar of the right knee is attributable to the Veteran's period of active military service. 4. During the relevant appeal period, service connection was in effect PTSD, rated 50 percent disabling; and a right knee disability, rated 20 percent disabling. The Veteran had a combined 60 percent rating. 5. The Veteran is not shown to be unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to October 17, 2007, the criteria for an initial rating of 50 percent for PTSD were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010). 2. During the entire appeal period at issue, the criteria for an initial rating in excess of 50 percent for PTSD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010). 3. The criteria for rating in excess of 20 percent for a right knee instability are not met, but the criteria for a separate 10 percent rating for noncompensable limitation of flexion with X-ray evidence of arthritis are met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010). 4. The Veteran has a surgical scar of the right knee that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). 5. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). The RO sent correspondence in May 2005, March 2006, April 2006, September 2007, February 2009, February 2010, and March 2010; rating decisions in May 2005, May 2006, and November 2007; a statement of the case in April 2006; and a supplemental statement of the case in February 2009. Those documents discussed specific evidence, particular legal requirements applicable to the claims, evidence considered, pertinent laws and regulations, and reasons for the decisions. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the November 2010 supplemental statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to the claims. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore the error was harmless). Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). PTSD The Veteran's PTSD has been rated under Diagnostic Code 9411. The criteria of Diagnostic Code 9411 provide for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. The criteria provide for a 70 percent rating where the evidence shows occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The criteria provide for a 50 percent rating where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria provide for a 30 percent rating where the evidence shows 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, and mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. A GAF score of 51-60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 41-50 is defined as 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). A GAF score of 31-40 contemplates some impairment in reality testing or communication (e.g. speech is at times 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). Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). In applying the rating criteria to the evidence of record, the Board finds that the preponderance of the evidence warrants a rating of 50 percent, and no more during the entire appeal period at issue. The medical evidence, consisting of a VA examination reports dated in May 2006, October 2007, and April 2010 and VA treatment shows findings consistent with depressed mood, anger, irritability, anxiety, sleep impairment, nightmares, and disturbances of motivation and mood. However, the Veteran's disability was not manifested by obsessional rituals which interfered with routine activities, near-continuous panic or depression, impaired impulse control, neglect of personal appearance and hygiene, or an overall level of symptomatology supportive of a higher rating. A May 2006 VA examination report shows that the Veteran reported poor sleep, nightmares, and intrusive memories. The Veteran reported that he had few friends but did not socialize on a regular basis. He indicated that he had no meaningful hobbies and worked long hours which prevented him from engaging in recreational pursuits. He endorsed hypervigilance, poor concentration, and irritability. He denied suicidal ideation. Mental status examination revealed that the Veteran was neatly and cleanly dressed. He was pleasant and cooperative during the examination. His mood was dysphoric, his affect was flat, and his thought content and processes were within normal limits. There was no evidence of delusions or hallucinations. The Veteran was noted to have kept his eyes downcast during the examination with little eye contact with the examiner. No inappropriate behavior was noted and the Veteran was oriented in four spheres with no evidence of gross memory loss or impairment. His speech was of normal rate and volume and was linear and coherent. The examiner diagnosed the Veteran with PTSD and a mood disorder due to a general medical condition and assigned a GAF score of 55. An October 2007 VA examination report shows that the Veteran reported recurrent intrusive memories of his Vietnam experiences and nightmares on a nightly basis. The Veteran indicated that he had a loss of interest in significant activities and felt detached from others. He also reported problems falling asleep and staying asleep, irritability, difficulty concentrating, hypervigilance, and exaggerated startle response. He indicated that he had not worked in two months and that he had concentration problems when he was working. Mental status examination shows that the Veteran was oriented in three spheres. He was casually dressed and unshaven and sat bent over with his eyes cast down during the examination. The examiner indicated that the Veteran maintained his own personal hygiene. The Veteran's speech was appropriate for rate and volume with no paraphrasic errors. He reported that his mood was "down" and the examiner indicated that the Veteran's affect was flat. The Veteran's thought content was within normal limits. The Veteran reported vague suicidal ideation without plan or intent and he denied homicidal ideation. The examiner reported that the Veteran's memory functions and judgment were intact. The examiner assessed the Veteran with PTSD and a mood disorder due to general medical condition and assigned a GAF score of 55. The examiner concluded that the Veteran's PTSD had a significant impact on his employment functioning and that his PTSD symptoms fell into the severe range. An April 2010 VA examination report shows that the Veteran indicated that he was depressed. He stated that his relationship with his spouse was "terrible" and he did not see his two grown children or siblings often. He stated that he did not have any leisure activities other than watching television. He reported difficulty with falling/staying asleep, irritability/outbursts of anger, concentrating, hypervigilance, and exaggerated startle response. The Veteran indicated that he stopped working following completion of a job in construction due in part to his PTSD symptomatology. Mental status examination shows that the Veteran was clean, neatly groomed, and appropriately dressed. His psychomotor activity and speech were unremarkable. His attitude was cooperative and attentive, his affect was flat, and his mood was anxious and depressed. The Veteran's attention was intact and he was oriented in three spheres. His thought process and content were unremarkable and his judgment was intact. The Veteran denied experiencing hallucinations, panic attacks, episodes of violence, and suicidal or homicidal thoughts. He also denied obsessive or ritualistic behavior. The Veteran's remote and immediate memory was intact and his recent memory was mildly impaired. The examiner diagnosed the Veteran with PTSD and depressive disorder and assigned a GAF score of 50. The examiner indicated that the Veteran's PTSD symptomatology would result in deficiencies in reduced reliability and productivity if the Veteran were employed. The examiner determined that the Veteran's PTSD did not result in total occupational impairment. The examiner noted that the Veteran's functional status remained constant during the examinations of record. VA treatment reports show that the Veteran underwent a psychiatric evaluation in November 2009. The Veteran reported repeated disturbing memories, thoughts, and images; nightmares; emotional distress on exposure to triggers; sweating from nightmares; low energy; and avoidance of thoughts, feelings or conversations and people, places, or events that reminded him of his traumatic experiences. He also reported a loss of interest in things he used to enjoy and indicated that he felt isolated and distant from others and emotionally numb. He also endorsed persistent sleep disturbance, anger outbursts, feeling irritable, and poor concentration. He reported that his PTSD symptomatology caused problems with his family life and led to a divorce from his first wife. The Veteran reported thoughts of death but no plan to kill himself. Mental status examination revealed that the Veteran was neatly dressed and groomed, pleasant and cooperative with the examiner, and alert and oriented in four spheres. His speech was normal in rate and volume, his affect was blunted, his thought process was logical and goal directed with tight associations, and he denied suicidal and homicidal ideations, delusions, ideas of reference, and preoccupations. The Veteran reported that he "saw or heard things at times" but he did not put forth any further details. He was noted to be mildly anxious and his memory was intact. His judgment was good and his insight was fair. The examiner diagnosed the Veteran with PTSD and depression and assigned a GAF score of 41. The Veteran was seen for a group therapy session on one occasion in December 2009. He underwent a psychotherapy session in February 2010. At that time the Veteran reported difficulty sleeping, nightmares, irritability, intrusive memories, an exaggerated startle response, hypervigilance, and avoidance discussing his traumatic experiences. He reported arguing with his wife of thirteen years. Mental status examination found that the Veteran's affect was markedly anxious and his mood was mildly dysphoric. His thoughts were logical and well organized. He reported thoughts of suicide with no plan. He reported no history of suicide attempts and he denied homicidal ideation, plan, or intent. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 40. The Board finds that the evidence supports no more than a 50 percent rating under Diagnostic Code 9411 for the entire time period at issue, which contemplates occupational and social impairment with some reduced reliability and productivity due to symptoms such as impairment of judgment; disturbances of motivation and mood; and difficulty maintaining effective relationships. The Board acknowledges the Veteran's report that he stopped working in 2007 due in part to his PTSD symptomatology. However, none of the examiners have found that the Veteran's PTSD was the cause of his unemployment and the April 2010 examiner specifically reported that there was not total occupational impairment due to PTSD. The Veteran acknowledged feelings of depression, anger, and irritability and he reported occasional thoughts of suicide but he denied any plan or intent and he never endorsed aggression or violence as part of his PTSD symptomatology. Moreover, while the Veteran reported on one occasion that he "saw or heard things at times" the evidence does not indicate that the Veteran's PTSD was manifested by persistent delusions, obsessional rituals which interfered with routine activities, near-continuous panic or depression, spatial disorientation, or neglect of personal appearance and hygiene. None of those symptoms are shown in the record. While the Veteran claimed depression, the evidence does not show that it was near-continuous. Additionally, while the evidence shows difficulty in the Veteran's relationship with his spouse and that his problems with concentration affected his ability to perform his job duties when he was working, the evidence did not show a complete inability to work. Consequently, the Board finds that the greater weight of the evidence is against granting an evaluation in excess of 50 percent at any time during the time period at issue. With respect to the Veteran's GAF scores, the evidence of record documents GAF scores ranging from of 40 to 55 which contemplate major impairment in several areas to moderate symptoms. GAF scores are not, in and of themselves, the dispositive element in rating a disability, and the Board generally places more probative weight on the specific clinical findings noted on examinations. In this case, the clinical findings during the time period at issue do not substantiate GAF scores indicative of more than moderate symptomatology. Although the October 2007 VA examiner stated that the Veteran's PTSD symptomatology fell into the severe range, the evidence does not establish that the Veteran's PTSD symptomatology resulted in major deficiencies or met the symptomatology for a rating greater than 50 percent. The Board finds that the clinical findings of records demonstrate a degree of impairment consistent with no more than a 50 percent rating. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that prior to October 17, 2007, the assignment of a 50 percent rating for PTSD is warranted. However, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 50 percent at any time during the appeal period at issue. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Knee When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered only in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service medical records show that he underwent removal of a torn right lateral meniscus with cyst in August 1973 and subsequently developed septic arthritis in his right knee and underwent an incision and drainage of the right knee in November 1973. VA outpatient treatment reports show a diagnosis of osteoarthritis at multiple sites. At an April 2010 VA examination, the Veteran reported that he was unemployed because he was unable to find work or perform physical labor due to pain in his knees and hands. He indicated that he last worked in September 2009 in construction and as an instrument fitter. The Veteran reported that he had daily pain lasting two hours at a time, he was unable to climb a ladder, and he was able to walk a quarter of a mile. Physical examination found that the Veteran had a flat, slightly hypopigmented, non-tender lateral oblique scar on the right knee. Range of motion testing reflected flexion from 0 to 90 degrees, extension was full at 0 degrees, and the range of motion was limited by pain. There was no tenderness, spasms, edema, fatigue, lack of endurance, weakness, incoordination, or joint instability, except right anterior cruciate ligament instability. The examiner indicated there was no loss of function with repetitive use. The examiner noted that x-rays of the right knee obtained in April 2006 showed mild degenerative disease and x-rays of the right knee in April 2010 showed prominent cartilage narrowing in the lateral compartment and moderate narrowing in the medial compartment. Joint effusion was present and there was mild lateral translation of the tibial plateau. The examiner noted that there was no apparent significant arthritis. The examiner diagnosed the Veteran with right knee degenerative joint disease status post lateral meniscal meniscectomy with moderate functional limitation. The examiner noted that the Veteran was capable of sedentary to light duty employment considering the impact of his service-connected right knee condition. The Veteran's right knee disability has been rated under Diagnostic Codes 5299-5259, and Diagnostic Codes 5259-5257. 38 C.F.R. § 4.71a (2010). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2010). Initially, the RO determined that the most closely analogous diagnostic code was Diagnostic Code 5259 (removal of symptomatic semilunar cartilage). The RO later rated the Veteran's right knee disability under Diagnostic Codes 5259-5257 (other impairment of the right knee). As the Veteran's right knee disability is not manifested by removal of symptomatic semilunar cartilage, the Board finds that the most appropriate diagnostic code is Diagnostic Code 5257. As an initial matter, the Board finds that service connection is warranted for the Veteran's scar on his right knee which resulted from the surgical procedure he underwent in service. The service medical records show that the Veteran underwent removal of a torn right lateral meniscus with cyst in August 1973. The April 2010 VA examiner indicated that the Veteran had a scar on his right knee and described the scar as a flat, slightly hypopigmented, non-tender lateral oblique scar. Consequently, service connection is granted for a surgical scar on the right knee. The Board additionally finds that the Veteran's right knee disability now includes arthritis as part of the symptomatology, and the evidence shows that arthritis is the result of the service-connected knee disability. Therefore, service connection for arthritis of the right knee is warranted. Diagnostic Code 5259 pertains to the removal of symptomatic semilunar cartilage and provides for a maximum rating of 10 percent. 38 C.F.R. § 4.71a (2010). Therefore, a higher rating pursuant to that diagnostic code is not warranted, because the Veteran's current rating is already higher than the rating provided under Diagnostic Code 5259. To assign separate ratings would be pyramiding because the symptomatic nature referred to in Diagnostic Code 5259 is rated under the current rating. Diagnostic Code 5257 pertains to impairment of the knee. Slight impairment of the knee with recurrent subluxation or lateral instability warrants a 10 percent rating. Moderate impairment of the knee with recurrent subluxation or lateral instability warrants a 20 percent rating. A 30 percent rating requires severe impairment with recurrent subluxation or lateral instability. 38 C.F.R. 4.71a, Diagnostic Code 5257 (2010). The words slight, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2010). Use of descriptive terminology such as mild by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. The relevant evidence of record shows that the Veteran suffers from no more than moderate instability of his right anterior cruciate ligament. The April 2010 VA examiner specifically determined that the Veteran's right knee disability resulted in moderate functional limitation. Consequently, the Board finds that no more than a 20 percent rating is warranted under that Diagnostic Code. The evidence does not show findings indicative of severe impairment due to recurrent instability or subluxation. The Board will next consider whether an increased rating is warranted under any other diagnostic codes pertaining to disabilities of the knee. Diagnostic Code 5256 pertains to ankylosis of the knee and provides for a 30 percent rating where there is favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is warranted for ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is warranted for ankylosis in flexion between 20 and 45 degrees. A 60 percent rating is warranted for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2010). As the evidence of record does not show that the Veteran suffers from ankylosis of the knee, that Diagnostic Code is not for application. Normal knee joint motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2010). Diagnostic Code 5261 pertains to limitation of extension. Limitation of extension of the leg to 5 degrees warrants a noncompensable rating. A 10 percent rating requires that extension be limited to 10 degrees. A 20 percent rating requires that extension be limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating requires that extension be limited to 30 degrees. A 50 percent rating requires that extension be limited to 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2010). The evidence of record shows that the Veteran had full extension during the examination of record. Consequently, the Board finds that an increased rating is not warranted under that Diagnostic Code. Diagnostic Code 5260 pertains to limitation of flexion. Flexion limited to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2010). In this case there is evidence of limitation of motion. However, flexion was limited to 90 degrees when examined by VA in April 2010, which does not warrant a compensable rating under that Diagnostic Code. Diagnostic Code 5010 pertains to arthritis due to trauma and states that the disability should be rated as degenerative arthritis pursuant to Diagnostic Code 5003. 38 C.F.R. § 4.71a (2010). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint. A rating of 10 percent is for application for each such major joint affected by limitation of motion in the absence of compensable limitation of motion. The rating cannot be combined with a rating based on limitation of motion. 38 C.F.R. § 4.71a (2010). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14 (2010); Esteban v. Brown, 6 Vet. App. 259 (1995). Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Where a veteran has both compensable limitation of flexion and compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Separate ratings may also be assigned for arthritis or limitation of motion and instability of the knee. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability. The Veteran's right knee disability is manifested by noncompensable limitation of flexion, with X-ray evidence of arthritis. Therefore, the Board finds that a separate 10 percent rating for arthritis of the right knee is warranted. That rating is assigned separately from the current 20 percent rating under Diagnostic Code 5257 which is assigned based on recurrent instability. However, the Board finds that a higher rating is not warranted because only one joint is affected by the arthritis and no compensable limitation of motion is shown. Diagnostic Code 5262 pertains to impairment of the tibia and fibula and provides for a 10 percent rating for slight knee or ankle disability. A 20 percent rating is warranted for moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2010). As there is no evidence of impairment of the tibia or fibula, that Diagnostic Code is not applicable. The remaining Diagnostic Codes pertaining to the knee are not applicable. Diagnostic Code 5258 pertains to dislocated semilunar cartilage. 38 C.F.R. § 4.71a (2010). The evidence does not show that the Veteran has dislocated semilunar cartilage that would warrant a rating under that Diagnostic Codes. Diagnostic Code 5263 pertains to genu recurvatum. 38 C.F.R. § 4.71a (2010). The evidence does not show that the Veteran's right knee disability is manifested by genu recurvatum. In sum, based upon a full review of the record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's right knee instability during the period under consideration. However, the Board finds that a separate 10 percent rating for noncompensable limitation of motion with X-ray evidence of arthritis is warranted. Furthermore, service connection is warranted for a surgical scar on the right know. The Board has resolved all reasonable doubt in favor of the Veteran in reaching this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Extraschedular Considerations The Board has considered whether an extraschedular rating is warranted in this case. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. If so, factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2010). The Board finds that referral is not appropriate in this case. The disabilities at issue have not been shown to markedly interfere with employment beyond that contemplated in the assigned ratings, to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. While the Veteran has reported that his disabilities negatively impacted his ability to work, the record does not show that either disability markedly interfered with his employment. Further, the record does not show that the disabilities resulted in frequent periods of hospitalization. Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER For the time period prior to October 17, 2007, an award of 50 percent is granted for the Veteran's service-connected PTSD; a rating greater than 50 percent for PTSD is denied for the entire appeal period. Entitlement to a rating in excess of 20 percent for a right knee disability manifested by instability is denied. Entitlement to a separate 10 percent rating for right knee arthritis with noncompensable limitation of motion is granted. Entitlement to service connection for a surgical scar of the right knee is granted. REMAND VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record currently before it is inadequate. 38 U.S.C.A. § 5103A (West Supp. 2010). In this case, the Board has granted an increased rating for the Veteran's right knee disability and has established service connection for a right knee surgical scar, which has not yet been rated by the RO. Therefore, the Board finds that the claim for TDIU must be remanded pending that rating and for consideration of the increased rating for the right knee. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). Benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the obtaining or retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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. 38 C.F.R. § 4.16(a) (2010). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §4.16(b) (2010). The Board does not have the authority to assign an total disability rating for compensation purposes based on individual unemployability pursuant to 38 C.F.R. §4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). It is the policy of the VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2010). Where the Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), a TDIU rating is for consideration where the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2010); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service connected conditions and advancing age, which would justify a total rating, based on unemployability. 38 C.F.R. §§ 4.14, 4.19 (2010); Van Hoose v. Brown, 4 Vet. App. 361 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19 (2010). The Board finds that a VA examination would be useful to determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Accordingly, this case is REMANDED for the following: 1. Schedule the veteran for a VA examination to determine whether he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. The examiner should review the claims file and should note that review in the examination report. Specifically the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 2. Then, readjudicate the issue on appeal. If any decision is adverse to the veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of the claim. 38 C.F.R. § 3.655 (2010). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs