Citation Nr: 1301519 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-08 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. For the period prior to January 27, 2010, entitlement to an initial evaluation in excess of 30 percent disabling for posttraumatic stress disorder (PTSD). 2. For the period beginning on January 27, 2010, entitlement to an evaluation in excess of 50 percent disabling for PTSD. 3. Entitlement to an evaluation in excess of 10 percent disabling for a left ankle disability. 4. Entitlement to an evaluation in excess of 20 percent disabling for a right acromioclavicular disability and scar. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1987 to October 1991. He is the recipient of, among other things, the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in San Juan, Puerto Rico that granted service connection for PTSD and assigned a 10 percent disability rating, effective June 2, 2006, granted a 10 percent rating for his left ankle disability, effective May 15, 2006, and denied a rating in excess of 20 percent disabling for his right acromioclavicular dislocation disability. With regard to the Veteran's service-connected PTSD, a subsequent January 2009 rating decision granted a higher 30 percent rating, effective June 2, 2006. A March 2012 rating decision granted a 50 percent rating, effective January 27, 2010. As these latter two rating decisions did not grant the full benefit sought on appeal, this matter remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. For the period prior to January 27, 2010, the Veteran's PTSD is manifested by symptoms of irritability, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing effective work and social relationships, and occupational and social impairment with an occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily. 2. For the period beginning on January 27, 2010, the Veteran's PTSD is manifested by symptoms of irritability, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. 3. The Veteran's left ankle disability is manifested by symptoms of no more than moderate severity, with range of dorsiflexion limited to 10 degrees, and plantar flexion to 25 degrees. Neither ankylosis of the right ankle, nor malunion of the os calcis or astragalus, are shown. 4. The Veteran's right acromioclavicular dislocation disability is manifested by range of flexion limited 100 degrees and abduction to 100 degrees. The disability does not cause recurrent dislocation, malunion, fibrous union, nonunion of, or loss of head of the humerus; malunion, nonunion, or dislocation of the clavicle or scapula; or, ankylosis. CONCLUSIONS OF LAW 1. For the period prior to January 27, 2010, the criteria for an evaluation of 50 percent disabling, but no more, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. For the period beginning on January 27, 2010, the criteria for an evaluation in excess of 50 percent disabling for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 3. The criteria for an evaluation in excess of 10 percent for the Veteran's left ankle disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (Diagnostic Codes 5299-5271) (2012) 4. The criteria for an evaluation in excess of 20 percent for the Veteran's right acromioclavicular disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (Diagnostic Code 5201) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for higher evaluations for his PTSD, left ankle disability, and right acromioclavicular dislocation disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). With regard to the Veteran's claim for a higher initial rating for his service-connected PTSD, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). With regard to the Veteran's claims for increased ratings for his left ankle disability and right acromioclavicular disability, the Board finds that May 2006 and August 2006 VCAA letters fully satisfied the notice requirements. The notices explained what type of evidence was needed to substantiate the Veteran's claims for higher ratings, what evidence the Veteran was responsible for submitting to VA, and what evidence VA would obtain. They also explained how VA assigns disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's VA treatment records are all in the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain. VA's duty to assist includes the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran was provided with VA examinations in December 2006 (PTSD), November 2006 (ankle and acromioclavicular dislocation), August 2010 (ankle and acromioclavicular dislocation), January 2010 (PTSD), and October 2011 (acromioclavicular dislocation). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's PTSD, left ankle disability, or right acromioclavicular dislocation disability since the time of the VA examinations. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the December 2006 , November 2006, August 2010, January 2010, and October 2011 VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran and provided the information necessary to evaluate the Veteran's disabilities under the applicable rating criteria. In that regard, the Board notes that the October 2011 VA examination was provided for the Veteran's right acromioclavicular dislocation disability in order to obtain ranges of motion (as the August 2010 VA examiner did not provide the needed range of motion information), which ranges of motion were provided as requested. As such, the Board finds the VA examination reports are adequate upon which to base a decision with regard to the Veteran's claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2012). When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. Fenderson v. West, 12 Vet. App. 119 (1999). Where service connection has already been established and an increase in the disability rating is in issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability in issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran's PTSD is assigned a 30 percent disability rating prior to January 27, 2010, and a 50 percent rating thereafter. See 38 C.F.R. § 4.130 (Diagnostic Code 9411). The Veteran seeks higher initial ratings. The Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disabilities. 38 C.F.R. § 4.130 (2012). Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Diagnostic Code 9411 provides rating criteria for 30, 50, 70, and 100 percent ratings as follows: 30 Percent - 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, recent events). 50 Percent - 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. 70 Percent - Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 100 Percent - Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. GAF scores ranging from 61 to 70 represent some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well and having some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 represent moderate symptoms, such as flat affect, circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning (such as few friends or conflicts with peers or coworkers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). 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). A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. See 38 C.F.R. § 4.130 (2012) (incorporating by reference VA's adoption of the DSM-IV for rating purposes). The December 2006 VA examination report reflects a diagnosis of PTSD, and a GAF score of 70 was recorded. The Veteran reported symptoms including crying spells, difficulty falling asleep, nightmares, performing perimeter checks, persistent irritability with outbursts of anger, and hypervigilance. The examiner noted that the Veteran had not received any treatment within the past year. Since leaving service, the Veteran worked in the food industry for 15 years and had good relationships with his supervisors and co-workers. He reported that he was currently married, although his relationship with his wife could be better and that he was not as close with his two children as he would like. It was noted that while there were no major changes in his daily functional activities, there were some major social functional changes, such as his being a "loner." He reported a sense of detachment and estrangement from others, and difficulty concentrating. Signs of suspiciousness were noted. An intermittent hallucination history was noted, including shadows in the corners of his eyes. Mild memory loss was noted, including forgetting names, directions, and recent events. He also reported passive thoughts of death, like his family would be better off without him after family arguments, then it goes away, and the examiner went on to note that the Veteran appeared to pose no threat of persistent danger or injury to himself or others. Obsessional rituals were noted that were not severe enough to interfere with routine activities, such as checking and counting. On objective examination, the Veteran's appearance and hygiene were appropriate, affect and mood were normal, panic attacks were absent, speech was normal, thought processes were normal, judgment was not impaired, abstract thinking was normal, and no difficulty understanding commands was noted. The examiner opined that the best description of the Veteran's psychiatric impairment was that his psychiatric symptoms caused occupational and social impairment with an occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily. A January 2010 VA examination report reflects a diagnosis of PTSD, and that a GAF score of 65 was recorded. The Veteran reported symptoms of anxiety, irritability, poor concentration, insomnia and nightmares, hypervigilance, and numbing and detachment. He reported a loss in interest in activities that previously brought him pleasure and relaxation. He reported that he was prescribed Prozac in the past year but never took it, but that seeing a therapist once per month for the past year had been helpful. He reported he had been married for 23 years, and described his relationship with her as distant and strained, and that his relationship with his daughter was distant and with his son was argumentative. He reported that his condition affected his occupational and social functioning. At work, he reported that he does not deal with stress well and that he had been denied promotions due to his irritability and complaints from employees that he was hostile at times. At the same time, he reported that he had been employed in his current position as a manager in a food establishment for eight years and that he had a good relationship with his supervisor and fair relationships with fellow employees. With regard to his social life, he reported that he and his wife went to restaurants two or three times per month, albeit he sat with his back facing the wall and with a view of the entire dining room, and that his only other leisure activity was rarely fishing with a fellow Marine with whom he served. The examiner noted that the Veteran demonstrated a flattened affect and evidence of anxiety. He reported difficulties with impaired impulse control with unprovoked irritability, and stated they affected his motivation and mood by tending to avoid stressful situations and contact with others and causing feelings of guilt and recrimination. Impaired focus and concentration were noted. The Veteran endorsed problems with suspiciousness and losing friends because he did not trust them anymore. He also continued to endorse passive suicidal ideation, such as thinking that when he loses his temper, his wife would be better off without him, but that he could never do that to his family, and the examiner went on to note that the Veteran did not appear to pose any threat of danger or injury to himself or others. The examiner noted that the Veteran's appearance and hygiene were appropriate, his speech was normal, no history or evidence of hallucinations were noted, including no evidence of such during the evaluation, no obsessional rituals were evident, his thought process was normal, his judgment and abstract thinking were intact, his memory was intact to testing, and that he did not have difficulty understanding simple or complex commands. The examiner opined that the Veteran experiences occasional interference in performing activities of daily living, that he has difficulty establishing and maintaining effective work/school and social relationships, and occasional interference with recreational or leisurely pursuits. In his notice of disagreement, the Veteran reported being treated for his PTSD at the VA medical center since around November 2007. In that regard, the Board acknowledges that VA treatment records dated from August 2007 to November 2011 reflect that the Veteran has mostly attended therapy sessions once per month for his PTSD. The Board notes that these records do not, however, reflect any symptoms more severe than those noted in the two VA examination reports. In light of the above, for the reasons explained below, the Board finds that the Veteran's PTSD disability picture more nearly approximates the 50 percent rating criteria for the entire period on appeal, but no more. With regard to the period prior to January 27, 2010, the Board notes that the Veteran's symptoms mostly meet the currently assigned 30 percent rating criteria, with his symptoms such as suspiciousness, chronic sleep impairment, and mild memory loss (e.g., names, directions, and recent events). At the same time, however, the Board acknowledges that the VA examiner noted that there were some "major" social functional changes due to the Veteran's PTSD, such as his being a "loner." He also reported to the December 2006 VA examiner feelings of detachment or estrangement from others and difficulties with his relationships with his wife and children. These symptoms are on par with those contemplated by the higher, 50 percent rating. The Board does not find that a rating in excess of 50 percent is appropriate. The Board acknowledges the Veteran's thoughts of death after family arguments that he reported would go away afterwards, as well as his report of seeing shadows in the corners of his eyes. However, the examiner specifically noted that he was not in danger of hurting himself or others. Similarly, the January 2010 VA examiner noted no history of actual hallucinations and no evidence of such at the time of that examination. While some obsessional rituals were noted of checking and counting, these were noted by the examiner as not interfering with the Veteran's daily activities. Also, while some irritability and outbursts of anger were noted, no periods of violence were shown. Therefore, having resolved doubt in favor of the Veteran, the Board finds that the Veteran's overall disability picture for this earlier period meets the criteria for a higher, 50 percent rating for this period, but no more. For the period beginning on January 27, 2010, the Board finds that the Veteran's symptoms are similar to those experienced prior to that date, which is at the 50 percent level. The January 2010 VA examination report reflects that his speech was normal, he had no difficulty understanding complex commands, his memory was intact, judgment was intact, and abstract thinking was intact. Likewise, regarding the next higher, 70 percent rating criteria, while suicidal ideation was noted by the examiner, such as thinking when he loses his temper that his wife would be better off without him, the Veteran reported that he could never do that to his family, and the examiner found that he was a not a danger to himself or others. Also, no obsessional rituals that interfere with routine activities were noted, his speech was normal, no near-continuous panic or depression was noted, no spatial disorientation was noted, and his appearance and hygiene were appropriate. At the same time, the Board does acknowledge that the Veteran reported to the January 2010 VA examiner a loss of interest in recreational activities except for rarely fishing with a fellow Marine, he reported numbing and detachment from others and difficulties with his familial relationships, irritability and impaired impulse control, and difficulty dealing with stress at work and being denied promotions due to his irritability and hostility. This is balanced, however, by the Veteran's self report of having a good relationship with his supervisor at his job of eighth years. While he has difficulty, he is still able to maintain some relationships and a stable job. The Board finds that, taking all of these symptoms into account, the Veterans overall disability picture does not meet the criteria for the next higher, 70 percent rating, and that his current 50 percent rating takes into account all of these symptoms. With regard to the Veteran's lay contentions, the Board notes that the Veteran himself asserted in his Form 9 appeal that his PTSD symptoms warrant a 50 percent rating, which is the rating granted herein for the entire period on appeal. In summary, the Board concludes that for the period prior to January 27, 2010, having resolved doubt in favor of the Veteran, a higher 50 percent rating is warranted. For the period beginning on January 27, 2010, the preponderance of the evidence is against assigning a rating in excess of 50 percent disabling. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Board has considered whether referral for an extraschedular rating is appropriate. "The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. . . The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. . ." Thun v. Peake, 22 Vet App 111, 115 (2008) (citing Fisher v. Principi, 4 Vet.App. 57, 60 (1993), and Floyd v. Brown, 9 Vet.App. 88, 95 (1996)). "Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. . .[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun at 115. "[I]n the second step of the inquiry, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' 38 C.F.R. § 3.321(b)(1) (related factors include 'marked interference with employment' and 'frequent periods of hospitalization')." Thun at 115-116. "When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating." Thun at 116. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In fact, his symptoms of irritability, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships are specifically contemplated by the schedule. As such, an extraschedular rating is not appropriate. Right Acromioclavicular Dislocation The Veteran's right acromioclavicular dislocation disability is currently assigned a 20 percent disability rating under Diagnostic Code 5202, effective October 21, 1991. See 38 C.F.R. § 4.71a (2012). The Veteran seeks a higher rating. See Claim, May 2006. Traumatic arthritis, substantiated by x-rays findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. 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 codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2012). When, however, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Code 5201, Arm, limitation of motion of, provides a 20 percent rating for limitation of motion to the shoulder level, a 30 percent rating for limitation of motion midway between the side and shoulder level (20 percent minor), and a 40 percent rating for limitation to 25 degrees from the side (30 percent minor). 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). Diagnostic Code 5202, Humerus, other impairment of, provides a 20 percent rating for malunion of the humerus with moderate deformity, and a 30 percent rating for malunion of the humerus with severe deformity (20 percent minor); a 20 percent rating for recurrent dislocations of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and a 30 percent for frequent episodes and guarding of all arm movements (20 percent minor); a 50 percent rating for fibrous union of the humerus (40 percent minor); a 60 percent rating for nonunion (false flail joint) of the humerus (50 percent minor); and an 80 percent rating for loss of head (flail shoulder) of the humerus (70 percent minor). 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). Diagnostic Code 5203, Clavicle of Scapula, impairment of, provides a 10 percent rating for malunion, a 10 percent rating for nonunion without loose movement, a 20 percent rating for nonunion with loose movement, and a 20 percent rating for dislocation. Or, impairment of the clavicle or scapula may be rated based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). In determining whether the Veteran had limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I (2012). Acromioclavicular means "pertaining to the acromion and clavicle, especially to the articulation between the acromion and clavicle." Dorland's at 21. At the outset, the Board notes that the record reflects that the Veteran is right hand dominant. See VA Examination Report, November 2006. By way of background as it relates to rating the Veteran's disability, the Board notes that his service treatment records reflect his history of falling off a bicycle in November 1988 and incurring a grade III acromioclavicular separation, which after a failed course of physical therapy was surgically treated in 1990 with a Weaver-Dunn operative procedure. As noted by a VA examiner in January 1992 relating to the Veteran's claim for service connection, the surgical procedure involved relocating the coraco-acromonial ligament (CAL). The January 1992 VA examiner also noted that the Veteran had a subsequent history of recurrent dislocations. Since the filing of the Veteran's claim for a higher rating in May 2006 (and for the one-year period prior), the Board notes that there is no medical evidence of record that the Veteran has dislocated or separated his right shoulder or acromioclavicular joint. Rather, the Veteran has reported experiencing pain and difficulty lifting objects. See, e.g., Statement, June 2006. A November 2006 VA examination report reflects the Veteran's history of a right shoulder separation injury and surgical treatment in service. The Veteran reported pain in his right collarbone and right shoulder. An x-ray of the right clavicle showed degenerative deformity, noted as presumable post-surgical changes of the distal clavicle. Ranges of motion were noted as flexion to 145 degrees, abduction to 150 degrees, and external and internal rotation to 80 degrees. The examiner added that there was additional limitation of motion of 10 degrees after repetitive use due to pain, fatigue, weakness, and lack of endurance. A diagnosis of status post right clavicular injury with residual surgical scar and degenerative arthritis was recorded. The examiner noted that the left clavicular changes shown on x-ray were clinically insignificant. The effect of the disability on the Veteran's occupational functioning was noted as pain and an inability to lift above his head. In addition, the examiner noted that there was an elevated, tender scar present on the right shoulder measuring five by four centimeters. No disfigurement, adherence to underlying tissue, or instability were noted. An August 2010 VA examination report reflects that the Veteran reported that his right acromioclavicular dislocation disability had worsened and that he could not move his right shoulder or arm as much as a result. He reported constant collarbone pain, as well as experiencing weakness, stiffness, giving way, swelling, locking, and abnormal motion. He reported that lifting was painful, and that sometimes he was unable to lift his grandbaby. No ranges of motion were noted. The examiner recorded a diagnosis of a healed right clavicle fracture status post surgical correction with residual scar. The examiner noted that the effect of the Veteran's condition on his occupational functioning was pain with lifting or repetitive activity of the right arm or shoulder, which makes household chores challenging. With regard to the scar, the examiner noted that it was on the Veteran's right lateral shoulder status post repair of the clavicular fracture. It was noted as linear, seven by 2.5 centimeters, not painful, without skin breakdown, with no underlying tissue damage, non-disfiguring, and it was noted as superficial. No limitation of function due to the scar was also noted. Because the August 2010 VA examination report did not include any ranges of motion, another VA examination was ordered to obtain such information. An October 2011 VA examination report reflects that physical examination of the Veteran's right shoulder/clavicle revealed tenderness and guarding of movement, but no instability, abnormal movement, weakness, or ankylosis. Limitation of motion was noted with flexion to 100 degrees, abduction to 100 degrees, and external and internal rotation to 90 degrees. The examiner noted that there was no additional limitation of motion after repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination. The Board acknowledges VA treatment records dated from 2005 to November 2011 in the claims file which reflect that the Veteran has been followed for his right shoulder condition, including complaints of pain. See, e.g., January 2009 (virtual VA). The Board notes that these records do not, however, reflect any symptoms more severe than those noted in the three VA examination reports discussed above. The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2Vet. App. 625, 629 (1992). As noted above, the Veteran's right acromioclavicular disability is currently assigned a 20 percent rating under Diagnostic Code 5202, humerus, other impairment of. The Board notes that the RO assigned a 20 percent rating under this code for recurrent dislocations of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level. While the Board acknowledges that the Veteran underwent a right shoulder Weaver-Dunn surgical procedure in service due to recurrent dislocations, no dislocations or separations of the shoulder have been shown to occur during the period on appeal. Therefore, the Board has considered whether rating under another diagnostic code would be more appropriate in this case for the period on appeal. In that regard, the Board notes that no ankylosis is shown, such that a rating under Diagnostic Code 5200 would not be appropriate. Also, while the Board acknowledges that an x-ray of the Veteran's clavicle revealed post-surgical changes including a healed clavicular fracture (see August 2010 VA examination), no malunion, nonunion, or dislocation of the clavicle or scapula is shown; therefore, a rating under Diagnostic Code 5203 is not appropriate. Finally, as shown above, the Veteran's right acromioclavicular disability is manifested by pain and limitation of motion. Therefore, the Board finds that it would be more appropriate to rate the Veteran's right shoulder disability under Diagnostic Code 5201 for limitation of motion. The current 20 percent rating represents limitation of motion to the shoulder level (which is limitation to 90 degrees). A higher, 30 percent rating is for limitation of motion midway between the side and shoulder level (which is limitation to 45 degrees). In this case, the Veteran's motion of his right arm is not shown to be limited to midway between the side and shoulder level. On examination in November 2006, abduction was to 150 degrees (or 140 degrees considering pain), with flexion to 145 degrees (or 135 degrees considering pain). In October 2011, abduction and flexion were both to 100 degrees. These degrees are above shoulder level. See 38 C.F.R. § 4.71a, Plate I. Thus, the level of impairment necessary for the higher ratings is not present at any time during the appeal. With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board acknowledges the Veteran's reported complaints of pain and painful motion. The Board finds, however, that painful motion is already contemplated by the currently assigned 20 percent rating. See also Mitchell v. Shinseki, 25 Vet.App. 32 (2011) (holding that in rating limitation of motion outside of the context of Diagnostic Code 5003, painful motion alone may not be deemed limitation of motion). Particularly, the Veteran's additional 10 degrees of limitation of motion noted on examination in November 2006 has been specifically contemplated in the 20 percent rating currently assigned. Therefore, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. The Board will now consider whether a separate rating is warranted for the scar over the Veteran's right clavicle associated with the Veteran's service-connected right shoulder disability. The Board notes that the criteria for rating scars were revised effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805). The amendments are only effective, however, for claims filed on or after October 23, 2008. The revised criteria, therefore, are not applicable to the appeal before the Board, as the Veteran filed his increased rating claim in May 2006. Under the pre-October 23, 2008 scar rating criteria, Diagnostic Code 7800 is not applicable because the Veteran's right clavicle scar is not shown to cause disfigurement. The scar is not shown to be deep or associated with underlying tissue damage (see Note (2)) or cause limitation of motion, such that Diagnostic Code 7801 is not applicable. The Veteran's scar is not shown to cover an area or areas of at least 144 square centimeters, such that a compensable rating under Diagnostic Code 7802 is not warranted. The scar is not shown to be unstable, such that a rating under Diagnostic Code 7803 is not warranted. Finally, Diagnostic Code 7805 directs the scars to be rated based on limitation of function of the affected part. The Board need not consider this diagnostic code, however, as the Veteran's right shoulder disability rating already contemplates limitation of motion, and an additional rating for limitation of motion would constitute impermissible pyramiding. See 38 C.F.R. § 4.14 (2012). Notably, on one occasion during the lengthy appeal period, the scar associated with the Veteran's shoulder surgery was noted to be painful. In particular, during his examination in November 2006, the examiner noted that the Veteran had an elevated, tender scar on his right shoulder. On examination in August 2010, however, the scar was specifically noted to not be painful. Furthermore, the Veteran's statements in his initial claim, his notice of disagreement, and his VA Form 9 are all silent for pain associated with his scar. Rather, the pain described is attributable to the underlying shoulder disability only. The Veteran's representative has not argued that the Veteran has a painful scar. On these facts, when taking into consideration the entire record, the Board finds that a rating pursuant to Diagnostic Code 7804, for painful scar, is not warranted. In summary, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 20 percent disabling for the Veteran's right acromioclavicular disability. There is not an approximate balance of evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1365. The Board has considered whether an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). With respect to the first prong of Thun, however, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's right acromioclavicular disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In particular, he has limitation of motion with pain. Diagnostic Code 5201 specifically contemplates those symptoms. As such, extraschedular rating is not appropriate. The Board has also considered whether staged ratings are necessary during the appeal period. However, based on the facts found, the Board finds that the 20 percent rating assigned for the Veteran's right acromioclavicular disability is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has consistently indicated that the impact of his disability is painful motion during attempts at lifting. Though he indicated in August 2010 that he could not move his shoulder, which was different from his statements in November 2006, range of motion testing reflected similar degrees of limitation. Also, the functional impact remained the same - painful lifting. Thus, the evidence does not show fluctuations in symptomatology sufficient to warrant staged ratings. In short, a rating in excess of 20 percent disabling for the Veteran's right acromioclavicular disability is not warranted. Left Ankle Disability The Veteran's left ankle disability is currently assigned a 10 percent disability rating under Diagnostic Code 5271, effective May 15, 2006. See 38 C.F.R. § 4.71a (2012). The Veteran seeks a higher rating. Diagnostic Code 5271 provides a 10 percent rating for moderate limitation of ankle motion, and a 20 percent rating for marked limitation of motion. Full range of ankle dorsiflexion is from zero to 20 degrees, and full range of ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71, plate II (2012). The Board observes that the words "mild," "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 (2012). A November 2006 VA examination report reflects that the Veteran reported experiencing left ankle weakness, stiffness, giving out resulting in falling, lack of endurance, popping, and constant pain. The Veteran stated that his condition did not result in incapacitation and that the pain was relieved by Motrin and that he could function with medication. Functional impairment was noted with standing and walking. Physical examination revealed that his posture was normal, his gait was normal, and he did not require an assistive device. His left ankle showed signs of tenderness but no deformity. Range of motion was noted as dorsiflexion to 10 degrees with pain, and plantar flexion to 45 degrees. After repetitive use, pain was noted as having the most major functional impact, but no additional limitation of motion was noted after repetitive use, including due to fatigue, weakness, lack of endurance, or incoordination. An x-ray revealed an old post-traumatic deformity involving the tip of the lateral malleolus. A diagnosis of status post left ankle injury with residual pain and post-traumatic deformity, lateral medial malleolus, was recorded. The effect of the Veteran's condition on his occupational functioning was noted as pain with prolonged standing and walking. An August 2010 VA examination report reflects that the Veteran reported symptoms of weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, fatigability, tenderness, pain, and dislocation. He reported experiencing flare-ups as often as three times per week precipitated by physical activity during which he described an inability to turn or bend. He also reported difficulty with standing and walking. He reported he was never hospitalized for the condition and that it had not resulted in any incapacitation in the past 12 months. He reported that his functional limitations involved walking and jogging. Physical examination of the ankle revealed edema and tenderness, but no instability, abnormal movement, effusion, weakness, deformity, guarding of movement, malalignment, or ankylosis. Ranges of motion were noted as dorsiflexion to 15 degrees and plantar flexion to 25 degrees, with no additional limitation of motion after repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination. An x-ray revealed a one millimeter heel spur, no evidence of malunion to the os calcis, or malunion of the astralgus. A diagnosis of chronic left ankle sprain was recorded. Some laxity of the anterior talofibular ligament was noted with passive joint stress reproducing pain, but it was noted that the heel spur did not cause pain. The effect of the Veteran's condition on his occupational functioning was noted as pain with walking and standing, making his job as a restaurant manager difficult. The Board also acknowledges VA treatment records dated from 2005 to November 2011, although they do not reflect any symptoms more severe than those noted in the two VA examination reports discussed above. Applying the pertinent rating criteria to the facts in the instant case, the Board finds that the preponderance of the evidence is against granting a rating in excess of the currently assigned 10 percent rating for the Veteran's left ankle disability under Diagnostic Code 5271. The Veteran's left ankle disability picture is not productive of "marked" disability so as to entitle him to the next higher disability rating (the maximum rating) under Diagnostic Code 5271. As shown above, range of dorsiflexion is limited at most to 10 degrees of 20, and plantar flexion to 25 degrees of 45, representing limitation to about half of what is normal. While significant, the Board does not find this "marked." There is no objective evidence of weakness or instability. Nor is there evidence of deformity that would produce limitation. Also, as noted above, his condition has not resulted in incapacitation or hospitalization, and he is still able to do his job as a restaurant manager, albeit difficult. The Board notes that the Veteran is not entitled to a higher evaluation under any provisions of the code pertaining to the ankle. Diagnostic Codes 5270 and 5272 are not for application, because ankylosis is not shown in the medical evidence of record. Likewise, Diagnostic Code 5273 is not for application because malunion of the os calcis or astragalus is not shown, and Diagnostic Code 5274 is not for application because the Veteran has not undergone an astragalectomy. With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board acknowledges the Veteran's reported complaints of pain and painful motion. The Board finds, however, that painful motion is already contemplated by the currently assigned 10 percent rating. In addition, as noted above, there is no objective evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination beyond that noted by the VA examiners as shown above. Therefore, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 10 percent as contemplated by the holding in Deluca. In summary, the Board finds that the preponderance of the evidence is against granting a disability rating higher than the 10 percent rating currently assigned under Diagnostic Code 5271 for the Veteran's left ankle disability, and the assignment of staged ratings is not for application. The Board has considered whether an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). With respect to the first prong of Thun, however, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's left ankle disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, his main symptom is limitation of motion. As such, extraschedular rating is not appropriate. The Board has also considered whether staged ratings are necessary during the appeal period. However, based on the facts found, the Board finds that the 10 percent rating assigned for the Veteran's left ankle disability is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Range of motion has remained relatively stable, with 10 to 15 degrees of dorsiflexion. Though plantar flexion has ranged from normal (45 degrees) to 25 degrees, the functional impact has remained the same - mainly having difficulty when standing for long periods of time. Therefore, staged ratings are not warranted. In short, a rating in excess of 10 percent disabling for the Veteran's left ankle disability is not warranted. (CONTINUED ON NEXT PAGE) ORDER For the period prior to January 27, 2010, entitlement to an evaluation of 50 percent for PTSD is granted, subject to the laws and regulations governing the payment of monetary awards. For the period beginning on January 27, 2010, entitlement to an evaluation in excess of 50 percent disabling for PTSD is denied. Entitlement to an evaluation in excess of 10 percent disabling for a left ankle disability is denied. Entitlement to an evaluation in excess of 20 percent disabling for a right acromioclavicular disability and scar is denied. ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs