Citation Nr: 1237163 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-12 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) for the period prior to September 6, 2012. 2. Entitlement to a rating higher than 50 percent for PTSD for the period since September 6, 2012. 3. Entitlement to an increased rating for lumbar spine intervertebral disc syndrome (IVS), currently rated as 20 percent disabling. 4. Entitlement to an initial rating higher than 10 percent for cervical spine degenerative disc disease (DDD). 5. Entitlement to an initial rating higher than 10 percent for degenerative joint disease (DJD)of the right hip. 6. Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1993 to May 1998. This appeal to the Board of Veterans' Appeals (Board) arose from a rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. A September 2009 rating decision awarded an increased rating from 30 to 50 percent for the PTSD, effective in April 2009, and denied a TDIU. An August 2011 rating decision granted entitlement to service connection for cervical spine DDD and right hip DJD, both initially rated at 10 percent each, effective in June 2010; and, it continued a 20 percent rating for the lumbar spine IVS. The Veteran perfected separate appeals of those determinations. In light of the fact that the Veteran contested the initial evaluation of his cervical spine and right hip disabilities, the Board has styled those issues as reflected. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. The issues of entitlement to a rating higher than 50 percent for PTSD for the period since September 6, 2012, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to September 6, 2012, the Veteran's PTSD was not manifested by occupational and social impairment reflects deficiencies in most areas, such as work, school, family relations. 2. The Veteran did not experience any incapacitating episodes due to his lumbar spine IVS during the rating period on appeal. 3. The preponderance of the evidence of record shows the chronic orthopedic manifestations of the lumbar spine IVS to have been low back pain and limitation of motion (LOM) greater than 0 to 30 degrees. There is no more than mild incomplete paralysis of the right sciatic nerve. 4. The cervical spine DJD manifests with pain and range of motion (ROM) on forward flexion greater than 30 degrees, and combined ROM greater than 170 degrees. 5. The right hip DJD manifests with painful motion and flexion greater than 45 degrees. Flexion limited to 30 degrees, or loss of abduction beyond 10 degrees has not manifested. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 50 percent for PTSD for the period prior to September 6, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2011). 2. The requirements for an evaluation higher than 20 percent for lumbar spine IVS are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242-5243. 3. The requirements for an initial evaluation higher than 10 percent for cervical spine DDD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 4. The requirements for an initial evaluation higher than 10 percent for right hip DJD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5252 and 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the rating decisions appealed, VA notified the Veteran in June 2009 as concerns the PTSD and TDIU claims, and in June 2010 as concerns the remaining claims, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned. The Board finds both letters were fully time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Hence, VA fully complied with the VCAA notice requirements. The veteran's increased rating claims for cervical spine and right hip disability arise from his disagreement with the initial evaluations following the grants of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). In addition to the VA and private medical records identified by the Veteran, the RO also obtained the records related to the Veteran's claim for disability benefits administered by the Social Security Administration. Neither the Veteran nor his representative asserts that there are additional records to be obtained. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Id. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. In Fenderson, 12 Vet. App. 119, however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's cervical spine and right hip disabilities. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. At 126. Staged ratings may also be assigned for the PTSD and IVS where supported by the evidence of record. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD General Requirements When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. Analysis According to the applicable rating criteria, a 50-percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. 38 C.F.R. § 4.130, DC 9441. A 70-percent evaluation applies when a veteran's occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Historically, a June 2008 rating decision granted service connection for PTSD and assigned a 30 percent rating, effective in July 2007. VA received the Veteran's current claim for an increased rating in April 2009. Treatment records of E.W.H., M.D., dated in April 2009, note the Veteran reported panic attacks three times a week and nightmares five times a week. He also reported he was not socializing at all. The Veteran reported further he felt sadness and depression at all times. He reported he had suicide thoughts 75 percent of the time. The Veteran also reported he heard his name and voices, and he saw shadows moving and animals. Dr. H assessed Axis V Global Assessment of Functioning (GAF) at 35. The May 2009 entry notes the Veteran's father died the prior week, and the Veteran had separated from his wife two weeks earlier. Their daughter was 6 months of age. Dr. H noted the Veteran's reported symptoms as essentially the same as in April 2009, and again assigned Axis IV GAF 35. The Veteran filed for unemployability in April 2009. Dr. H noted in an April 2009 letter that the Veteran was in need of medical leave through mid-June 2009. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect 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; child frequently beats up other children, is defiant at home, and is failing at school). The June 2009 VA fee-basis examination report reflects the Veteran reported he felt nervous all of the time and had nightmares nightly where he woke up shouting and sweating. He reported further than he had sleep disturbance and difficulty, and he also had difficulty with anger and irritability. The Veteran reported he isolated himself from others, and he did not socialize at all. He also related that felt depressed daily most of the time, and he endorsed frequent intrusive memories. The Veteran reported he sees and hears things, and that he "sees something all of the time," and sees flashes of light in the corner of his eyes, and hears noises or voices at times. The Veteran reported he had difficulty with relationships; his first marriage ended in divorce, and he was encountering difficulties in his current marriage. He denied any hospitalization or emergency room visits, and he had not worked since April 2009. The examiner noted and reviewed Dr. H's records and the Veteran's last VA examination report. Mental status examination revealed the Veteran oriented to time, place, person, and purpose. His appearance, hygiene, and behavior were appropriate with good eye contact. Affect and mood were depressed, but he communicated well. The examiner noted the Veteran's speech and concentration as normal, and noted the Veteran reported panic attacks of at least weekly. The Veteran was suspicious of others, and he reported auditory and visual hallucinations. There were no delusions or obsessive rituals. The Veteran's thought processes were normal, and his judgment and memory were intact. He was able to think abstractly. There was no suicide or homicide ideation. The examiner diagnosed chronic PTSD and assessed Axis IV GAF 40. The examiner noted the Veteran was able to manage his benefits and perform his activities of daily living. Further noted was that the Veteran has difficulty with employment due to his anxiety, suspiciousness, anger, and panic attacks. The examiner noted the Veteran had difficulty establishing and maintaining effective work and social relationships, as well as maintaining family role functioning, as well as intermittent inability to perform recreational and leisure pursuits. The examiner opined the Veteran understood simple commands, and he was not a threat to himself or others. As noted in the Introduction, upon receipt of the examination report, the September 2009 rating decision increased the Veteran's rating from 30 to 50 percent, as of April 2009, the date his claim was received. The Board notes the evidence of record shows the Veteran's symptoms are indeed chronic. Further, a GAF of 31 to 40 is indicative of major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The assigned GAFs notwithstanding, the Board must assess the Veteran's functional impairment due to his reported symptoms. Although Dr. H's records note the Veteran's repeatedly reported suicide thoughts, Dr. H did not note an assessment that the Veteran was in fact suicidal. Further, the June 2009 VA examination report noted there was no evidence of suicide or homicide ideation, which is also the case for entries in the VA outpatient records. The Veteran did not exhibit such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands;; impaired judgment; impaired abstract thinking; or disturbances of motivation and mood on the June 2009 VA examination. In light of the above, the Board finds the Veteran's PTSD more nearly approximated the assigned 50 percent rating as of the June 2009 examination. The Board notes the Veteran's reported near-continuous panic attacks, depressed mood, and anxiety. The evidence the Board finds against a higher, 70 percent rating, however, is that those symptoms have not deprived the Veteran of his ability to function independently. The totality of the evidence of record shows the Veteran drove himself to his appointments, and there was no indication he needed assistance. Further, the VA outpatient treatment records note the Veteran lived alone, and he was capable of functioning independently. The medical evidence of record does not indicate the Veteran exhibited illogical speech, spatial disorientation, impairment in impulse control, or neglect of personal hygiene. Pursuant to the Veteran's application for Social Security benefits, G.H.B., PhD, examined the Veteran in October 2009. The RO received the Social Security file in September 2011. Dr. B's report notes he had Dr. H's treatment records related to the Veteran. Dr. B noted the Veteran presented wearing a hat turned backwards and a dirty shirt. Dr. B noted the Veteran appeared to be lifting weights, as he was very huskily built. The Veteran told Dr. B he had to have the office door open. Dr. B noted the Veteran drove approximately eight miles alone for the appointment, his gait and posture were good, his hygiene fine, and the Veteran appeared to be a fairly good historian. The Veteran's activity level was okay but he appeared a little bit edgy and appeared cautious in his dealings with the Dr. B. The Veteran reported he was on his second marriage of five years, and he had been separated about six months, and he had one 11-month-old child. Dr. B noted the Veteran's social skills were questionable. The Veteran reported he had worked in heating and air conditioning for about 10 years. When asked why he stopped, the Veteran responded his doctor said he could not do it anymore because he was unable to have contact with people. Dr. B noted the Veteran was very vague as to his claimed stressor, and that his review of Dr. H's treatment notes did not reveal a confirmed diagnosis of PTSD. In the end, Dr. B referred the Social Security Administration to Dr. H and VA to determine if there was in fact a diagnosis of PTSD. Nonetheless, Dr. B assessed the Veteran's reported symptoms. The Veteran reported he did not do much on a typical day, as he just sat around, had no friends. He attended church once in a while, and he did not really like television. Dr. B noted the Veteran was cooperative and very verbal with a very flat affect. The Veteran reported he got along well with people while he was working. He reported further that his wife caused him to have stress, and she was fearful of him because he told her he might harm her in some way. Dr. B noted the Veteran's response to the exam process was good. The Veteran was able to remember two out of five objects after five minutes; he was able to recall five digits forward and three backwards immediately. Remote memory for childhood events was fair; he named three Presidents; but, he could name the governor of North Carolina, or why we celebrate Memorial Day. Dr. B assessed the Veteran's abstract reasoning as a little limited, and he estimated the Veteran's intelligence as in the low average range. Dr. B's Axis I diagnosis was depression, and he assigned Axis V Global Assessment of Functioning as 60, which is indicative of moderate symptoms. Dr. B noted the Veteran's report that he had thought about suicide, but he also noted the Veteran had never made any attempts. He noted the Veteran was able to understand, retain, and follow instructions; and, he could perform repetitive tasks. The Veteran, however, did not get along very well with people, and he probably could not tolerate stress. Upon receipt of Dr. B's report, the Social Security Administration determined the Veteran was capable of functioning independently, to include the capability of managing his benefits. The Board finds the evidence clearly shows the Veteran's ability to maintain relationships is impaired, as shown by his marital difficulties, but the evidence does not show the inability to form and maintain relationships. Thus, the Board finds the Veteran's PTSD was appropriately rated at 50 percent as of October 2009. 38 C.F.R. §§ 4.1, 4.10, 4.130, DC 9411. An April 2010 VA outpatient entry notes the Veteran complained of PTSD and depression. The examiner noted the Veteran's mood and affect were pleasant and congruent, and no psychotic features were pleasant. His thought process and speech were fluid; and, judgment and insight were intact. January and March 2011 outpatient entries noted similar assessments. An April 2011 report of Dr, H notes the Veteran had nightmares and flashbacks two to three times a week, and he averaged six hours of sleep a night. The Veteran also reported occasional intrusive thoughts, startled easily, and was sometimes hypervigilant. Dr. H noted the Veteran's recent memory was severely impaired, as the Veteran forgot what he read, often misplaced things and forgot what he was told, and occasionally got lost driving. Dr. H noted the Veteran reported anger and sadness came over him 75 percent of the time without his understanding why, and he felt depressed 25 percent of the time. The Veteran heard his name called, heard cars drive up at his residence, and he saw shadows moving out of the corner of his eyes, all when nothing or no one was there. Occasional crying spells were noted, and the Veteran was easily angered and agitated easily. Dr, H opined the Veteran was severely compromised in his ability to sustain social relationships. Dr. H again assigned Axis IV GAF as 35. Dr. H's April 2011 findings reflect significant PTSD symptoms. The Board notes further, however, that Dr. H did not note the presence of suicide or homicide ideation or any impairment in thought processes, impulse control, or ability to function independently. Moreover, while Dr. H noted the Veteran's ability to sustain social relationships was severely impaired, he did not opine the Veteran was at the point where he was totally unable to sustain social relationships. In fact, Dr. H noted the Veteran frequently socialized with friends and family. Thus, the Board finds the Veteran's PTSD continued to more nearly approximate the assigned 50 percent rating. 38 C.F.R. §§ 4.1, 4.6, 4.10, 4.130, DC 9411. Musculoskeletal System Claims General Requirements Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. § 4.45. Lumbar Spine Analysis Historically, a June 2008 rating decision granted service connection for lumbar spine IVS and assigned an initial 10 percent rating, effective in August 2004, and a 20 percent rating, effective in April 2007. The rating decision also granted service connection for associated radiculopathy of each lower extremity with a rating of 10 percent each, effective in July 2007. VA received the Veteran's current claim for an increased rating in June 2010. Spine disabilities are rated by the General Spine Rating Formula. It requires IVS to be rated either under the Formula for IVS, which is on the basis of incapacitating episodes, or under the General Formula, which ever results in the higher rating. See 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute symptoms due to IVS that require bed rest prescribed by a physician. Id., Note (1). The evidence of record shows the Veteran has not had any incapacitating episodes as defined by the rating criteria during the rating period on appeal. As a result, the Board will review his appeal under the General Formula. Under the General Formula, a spine disorder, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, will be assigned a 20 percent rating where there is forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The disability will be assigned a 40 percent rating for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The disability will be assigned a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine. The disability will be assigned a 100 percent rating for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be rated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a. VA outpatient records of July 2009 note the Veteran's complaints of increased low back pain of a shooting and aching nature. On a scale of 1 to 10, the Veteran assessed his pain as 10/10. The Veteran reported bending, standing, sitting, rising, standing, and walking, all increased his pain. He complained that nothing decreased it. He denied any bowel or bladder involvement or radicular pain but reported some paresthesias of the right knee. The examiner noted the Veteran did not use any assistive device for ambulation, and he leaned forward in posture. Physical examination revealed noticeable muscle spasms. Straight leg raising was negative, as was knee to chest. Lumbar spine forward flexion was 0 to 40 degrees with pain. The Veteran was issued a home exercise program. The Veteran continued to report with the same complaints through September 2010. He also reported he had not realized much benefit from the home exercise program. A June 2010 entry notes an MRI examination showed no acute findings. There was minimal intervertebral disease at L5-S1. The diagnostic impression did not include any nerve root involvement. The December 2010 VA fee-basis examination report reflects the Veteran reported he could not walk due to limitations. He complained of stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. The Veteran also complained of weakness of his spine, leg, and foot. He reported further that he has bowel problems related to his spine, obstipation, and erectile dysfunction. The Veteran also reported bladder problems related to his spine disorder. He reported he urinated five times a day at intervals of two hours. He also reported urinary frequency at night of once in eight hours. The Veteran denied incontinence or urinary retention, but he did report urinary urgency. The Veteran reported constant severe pain that radiated to the hips bilaterally. Physical activity triggered the pain, and he reported he received partial relief from Hydrocondone. The Veteran reported he could not function during flare-ups, and he had not worked since April 2009 because of his pain. The Veteran denied any prior hospitalization or surgery related to his back, and he also denied having experienced any incapacitation over the prior 12 months. The examiner noted the Veteran exhibited normal posture but walked with an abnormal gait due to pain, which the Veteran attributed to right knee pain. Head position was normal with symmetry in appearance. There also symmetry of spinal motion with normal curves of the spine. Physical examination of the thoracolumbar spine revealed evidence of tenderness and spasm. The Veteran described the spasm as tightness and the tenderness as constant achy pain. The examiner noted the spasm did not produce an abnormal gait, spinal contour was preserved despite the tenderness, and there was no guarding on movement. The examiner noted x-rays revealed mild disc space narrowing at L5-S1, otherwise negative. There was no subluxation or acute fracture. The examiner noted there was no ankylosis of the thoracolumbar spine. The examiner noted ROM testing was not conducted due to the Veteran's claimed pain level. The examiner noted further that the Veteran laid on the examination table for most of the examination, he had to be prompted to sit up, and he refused to remove his shirt and pants. Upon receipt of the examination report, the RO asked the examiner if the Veteran put forth adequate effort during the examination. The examiner responded, No, as the Veteran stated the pain was outrageous. The examiner referred the RO to the comments in the examination report, and added that it was a very difficult examination. Spine disabilities are rated on the basis of LOM, but LOM was not determined at the December 2010 examination. The Board notes no other recording of lumbar spine ROM in the outpatient records after the July 2009 entry of 0 to 40 degrees noted earlier. The outpatient entries merely repeat an August 2009 entry that notes the Veteran's difficulty with ROM testing secondary to right knee pain. There are no entries that specifically note lumbar spine flexion of 30 degrees or less. In light of the fact the examiner did not make a specific medical finding that the Veteran was physically incapable of performing ROM testing, and additional outpatient entries discussed later in this decision, the Board finds the Veteran's effort at the examination was not credible. Thus, in the absence of credible evidence of lumbar spine ROM of 0 to 30 degrees or less, the Board finds the Veteran's lumbar spine continued to more nearly approximate the assigned 20 percent rating for the chronic orthopedic manifestations. 38 C.F.R. § 4.71a, DC 5242-5243. The Veteran asserted in his notice of disagreement that, in light of the disc space narrowing shown on x-ray, and his pain, he should have received a higher rating. The Board notes, however, that disabilities are not rated solely on the basis of pain, but the functional impairment due to pain. See 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). The Veteran asserted further in his Substantive Appeal (VA Form 9) that he also should have received an increased rating for his sciatica. The Board now addresses the neurological impairment. Low back-induced neurological symptoms are rated under the criteria for peripheral nerves. The RO assigned the current 10 percent rating of the Veteran's bilateral lower extremity radiculopathy under DC 8520, which rates incomplete paralysis of the sciatic nerve. See 38 U.S.C.A. § 4 .124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. Neurological examination revealed positive straight leg raising bilaterally, and Lasegue's sign was negative. The examiner noted examination of the lumbar spine revealed no sensory deficits from L1-L5, and examination of the sacral spine revealed no sensory deficits of S1. The examiner noted further that the modalities used to test sensation were pin prick and a feather. The Board notes the examiner recorded motor strength weakness of 3/5 of the hip and knee flexors and extenders bilaterally; hip abductor and adductors; feet extenders; and, of plantar flexion. On the other hand, the examiner noted muscle tone and musculature were normal, and there was no sign of atrophy in the lower extremities. Further, examination revealed normal knee and ankle reflexes of 2+. The lower extremities showed no signs of pathologic reflexes, and cutaneous reflexes were normal. Further, a January 2011 VA outpatient entry notes physical examination revealed bilateral lower extremity strength and sensation were normal throughout on monofilament testing. In light of the finding of normal sensation and tone, the absence of evidence of atrophy, and the clinical evidence of questionable effort by the Veteran, the Board finds the Veteran's right lower extremity radiculopathy continued to more nearly approximate mild incomplete paralysis of the sciatic nerve and a 10 percent rating, with no findings of a compensable radiculopathy on the left side. 38 C.F.R. §§ 4.2, 4.6, 4.10, 4.124a, DC 8520. The Board also notes the Veteran's report at the December 2010 examination that he experienced bowel and bladder symptoms related to his lumbar spine disability as well as erectile dysfunction. As noted earlier, however, the Veteran refused to remove his pants, so the examiner was prevented from conducting a rectal or genital examination to test for that symptomatology. The RO noted those factors as the reasons and bases for not addressing erectile dysfunction and the claimed bowel and bladder symptoms. Further, the Board notes a January 2011 outpatient entry notes the Veteran denied bowel or bladder incontinence or other related bowel or bladder symptoms. In light of this evidence, the Board finds the evidence is against referring those issues back to the RO. Cervical Spine Rating The August 2011 rating decision reflects the RO assigned the cervical spine rating under DC 5242, which rated degenerative arthritis. DC 5003 provides that degenerative arthritis established by x-ray is rated on the basis of LOM under the appropriate Diagnostic Codes for the joint involved. Further, if the LOM of the joint involved is noncompensable, a rating of 10 percent is applicable. 38 C.F.R. § 4.71a. LOM must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of LOM, but with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. DC 5003. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. The General Formula provides for a 10 percent rating for cervical spine motion on forward flexion greater than 30 degrees but not greater than 40 degrees, or combined ROM greater than 170 degrees but not greater than 335 degrees. A 20 percent rating is warranted for forward flexion greater than 15 degrees but not greater than 30 degrees; or, combined ROM not greater than 170 degrees; or, where there is muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for cervical spine forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. The December 2010 examination report notes the examiner noted the Veteran's complaints to be the same as for the lumbar spine. The report notes the Veteran's denial of cervical spine incapacitating episodes. Physical examination of the cervical spine revealed no evidence of guarding, weakness, loss of tone, or atrophy of the limbs. Examination revealed evidence of radiating pain on movement, which the Veteran described as pain radiating to the head. Evidence of spasm also was noted, which the Veteran described as tightness, and tenderness. There was no ankylosis of the cervical spine. The examination report notes ROM on forward flexion of 0 to 10 degrees; extension to 3 degrees; right lateral flexion to 15 degrees, and left to 20 degrees; and right rotation to 20 degrees, and left to 25 degrees. All movements were done with pain throughout. The RO, as was the case with the lumbar spine examination, asked the examiner if the Veteran's effort during the cervical spine examination was adequate, and the examiner responded the same as concerned the lumbar spine. The examiner noted the Veteran laid on the table. The examination report does not indicate if the Veteran sat up for the cervical spine testing. The Board will not speculate but again notes the absence of a finding by the examiner that the Veteran was physically unable to reasonably cooperate with the examination. Further, a January 2011 VA outpatient entry notes the Veteran's neck exhibited full ROM with no bony pain. Thus, the Board finds the preponderance of the evidence shows cervical spine forward flexion of at least to 40 degrees. Hence, the cervical spine symptoms do not more nearly approximate the criteria for a higher rating for the chronic orthopedic manifestations. 38 C.F.R. §§ 4.1, 4.6 and 4.10. 4.40, 4.45, 4.59, 4.71a, DC 5242. A higher rating was not met or approximated as there was no credible evidence of motion on forward flexion of less than 30 degrees, combined ROM of 170 degrees of less. The examination report reflects the examiner added cervical spine IVS to the Veteran's diagnosis. The Board notes this fact but also notes the Veteran denied having experienced incapacitating episodes. Thus, the disorder is rated on the basis of the chronic orthopedic and neurological manifestations. Neurological examination of the cervical spine with pin prick and a feather revealed no sensory deficits from C3-C8. As was the case with the lumbar spine, the examiner noted apparent motor strength weakness of 3/5 in the upper extremities. Yet, the examiner noted the absence of evidence of loss of tone or atrophy of the limbs. Further, triceps and biceps reflexes were 2+ bilaterally, upper extremity cutaneous reflexes were normal, and there were no signs of pathologic reflexes. The January 2011 VA outpatient entry also notes neurological examination revealed normal strength and sensation to monofilament of the upper extremities, and there were no focal sensory or motor deficits. In light of the above, the Board finds the preponderance of the evidence is against a separate rating for cervical spine upper extremity radiculopathy. 38 C.F.R. §§ 4.2 and 4.6. Right Hip The December 2010 examination report notes the examiner diagnosed mild DJD. The earlier discussion of how degenerative arthritis is rated is hereby incorporated here by reference. Hip/thigh flexion limited to 45 degrees warrants a 10 percent rating; to 30 degrees, 20 percent; to 20 degrees, 30 percent; and, to 10 degrees, 40 percent. 38 C.F.R. § 4.71a, DC 5252. Thigh extension limited to 5 degrees warrants a 10 degrees. DC 5251. Limited adduction that prevents crossing of the legs warrants a 10 percent rating; and, abduction loss beyond 10 degrees warrants a 20 percent rating. DC 5253. The Veteran reported weakness, stiffness, swelling, giving away, lack of endurance, locking, tenderness, effusion, and subluxation. He denied any redness, heat, deformity, drainage, or dislocation. The Veteran also denied flare-ups. He reported further that he could only stand or walk for a few minutes, and he did not leave his home due to his incapacity. His prescribed Hydrocondone was used for all of his joint pain. He denied any incapacitation over the prior 12 months. Physical examination of the right hip revealed tenderness but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage. Neither was there evidence of subluxation or ankylosis. Right hip ROM testing was not conducted for the same reasons lumbar spine ROM testing was not conducted. The examiner's response to the RO's query also included the right hip-that is, the Veteran did not exert adequate effort. The January 2011 outpatient entry notes straight leg raising was very limited due to the Veteran's complaints of right knee pain. The entry also noted the Veteran's medications included Flexeril and Meloxicam 10 mg, and he appeared to be non-compliant with his medications. He was given a home exercise program and advised to take his medications as directed. The Veteran's history of complaints of right hip pain, and the assessment in the outpatient records of hip pain and arthralgias, strongly suggest that the Veteran exhibits pain on motion. In light of the evidence of DJD shown on x-rays, and the absence of credible evidence of compensable ROM, the Board finds the preponderance of the evidence shows the right hip disability does not warrant a higher rating than the assigned 10 percent. 38 C.F.R. §§ 4.1, 4.6, 4.40, 4.45, 4.59, 4.71a, DC 5003-5252. A higher rating was not met or approximate, as the Board finds no credible evidence of compensable LOM on either hip flexion, abduction, or adduction. As noted earlier, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings are permissible. See Hart, 21 Vet. App. 505 and Fenderson, 12 Vet. App. 119. The Board finds, however, as discussed above, that the evidence reflects that the Veteran's symptoms for his disabilities have remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted for either of the disabilities. As discussed in the remand, below, additional evidence suggests the prospect of a staged rating for the PTSD for the period remanded. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Specifically, the Board notes the Veteran's assertions of the impact of his disabilities while he was still employed. The Board acknowledges the Veteran's contentions, but finds the severity of the Veteran's PTSD, spine, right knee, and right hip, disabilities are fully contemplated by the rating criteria. There is nothing exceptional about either of the Veteran's service-connected disabilities. The exhibited symptoms and degree of disability of each exhibited is contemplated by the rating schedule. Thus, in the absence of an exceptional disability picture, the Board finds the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a rating higher than 50 percent for PTSD for the period prior to September 6, 2012, is denied. Entitlement to an increased rating for lumbar spine IVS is denied. Entitlement to an initial rating higher than 10 percent for cervical spine DDD/DJD is denied. Entitlement to an initial rating higher than 10 percent for DJD of the right hip is denied. REMAND As noted in the Introduction, the Board received a September 2012 report of Dr. H that notes a significant increase in the severity of the Veteran's PTSD symptomatology. Dr. H opines the Veteran is now totally impaired socially and occupationally. Further, the Veteran did not waive initial RO review and consideration of the report. Thus, in the absence of a waiver by the Veteran, a remand is required. 38 C.F.R. § 20.1304; see also Disabled American Veterans, et al v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). There is no medical assessment of the Veteran's employability due to the cumulative impact of all of his service-connected disabilities. The Veteran meets disabilities the requirements for consideration on a scheduler basis for his disabilities, as he has one disability rated as at least 40 percent disabling, and his total combined rating is 80 percent as of April 2009. See 38 C.F.R. § 4.16. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA psychiatric examination to determine the severity of the Veteran's PTSD symptomatology. All indicated tests should be undertaken and all clinical findings should be reported in detail. Request the examiner specifically to evaluate and comment on the Veteran's ability to obtain and maintain gainful employment and personal relationships. A GAF score should be assigned and the score should be explained. If it is significantly different than other scores on file, a full explanation of the reason therefore should be set forth. The examiner is also asked to opine whether all of the Veteran's service-connected disabilities, cumulatively, render him unable to obtain and maintain substantially gainful employment. 2. Thereafter, the AMC or RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. See 38 C.F.R. § 3.655(b). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs