Citation Nr: 1305064	
Decision Date: 02/12/13    Archive Date: 02/21/13

DOCKET NO.  09-19 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia


THE ISSUES

1.  Entitlement to a higher initial rating for a service-connected right knee disability, currently rated as 10 percent disabling.

2.  Entitlement to a higher initial rating for a service-connected left knee disability, currently rated as 10 percent disabling.
 
3.  Entitlement to a higher initial rating for a service-connected low back disability, rated as 10 percent disabling prior to June 20, 2011, and as 20 percent disabling from that date.

4.  Entitlement to a higher initial rating for a service-connected acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), rated as 30 percent disabling.

5.  Entitlement to a higher initial rating for service-connected bilateral hallux valgus, each foot rated as 10 percent disabling.

6.  Entitlement to a total disability compensation rating based on individual unemployability (TDIU rating). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from February 1993 to June 1996, from October 2002 to October 2003, and from February 2005 to December 2007.

This case comes to the Board of Veterans' Appeals (Board) on appeal from 
RO decisions dated in April 2008 and February 2009.  A videoconference hearing was held before the undersigned Veterans Law Judge in October 2012, and a transcript of this hearing is of record.

In an April 2008 rating decision, the RO in Roanoke, Virginia granted service connection and a 10 percent rating for degenerative disc and joint disease of the lumbosacral spine, granted service connection and a 0 percent rating for residuals of a left knee injury, and granted service connection and a 0 percent rating for postoperative residuals of a right knee injury.  Each rating was effective from December 8, 2007, the day after his separation from his last period of active service.  The Veteran appealed for higher initial ratings.  

In a February 2009 rating decision, the RO in Huntington, West Virginia granted service connection and a 30 percent rating for an acquired psychiatric disorder to include PTSD, and granted service connection and separate 10 percent ratings for hallux valgus of each foot; the Veteran appealed for higher initial ratings.  In this decision, the RO also granted a higher 10 percent rating for the service-connected right knee disability, and granted a higher 10 percent rating for the service-connected left knee disability, effective from October 24, 2008.  As he is not in receipt of the maximum available ratings for these knee disabilities, these issues remain on appeal.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating an increased-rating claim remains in controversy until the Veteran receives the highest possible rating or indicates he is satisfied with the increase in his rating to a certain level).

In a May 2009 rating decision, the RO assigned higher 10 percent ratings for each service-connected knee disability, retroactively effective from December 8, 2007.  Thus, 10 percent ratings for the bilateral knee disabilities have been in effect throughout the rating period on appeal.

In a November 2011 rating decision, the RO granted service connection and 10 percent ratings for radiculopathy of each lower extremity, as secondary to the service-connected low back disability.

In an April 2012 rating decision, the RO granted a higher 20 percent rating for the service-connected low back disability, effective from June 20, 2011.  Hence, the RO has assigned staged ratings for this disability, and the issue is as characterized on the first page of this decision.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Finally, the Board notes that in June 2012, the Veteran claimed entitlement to a TDIU rating, asserting that he is unemployable due to his service-connected disabilities.  The issue of entitlement to TDIU rating is part and parcel of the increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thus, the issues are as listed on the title page.

The issue of secondary service connection for urinary incontinence has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issues of entitlement to a higher rating for an acquired psychiatric disorder/PTSD and a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  On June 11, 2012, prior to the promulgation of a decision in this appeal, the Board received written notification from the Veteran that he is withdrawing his appeal of his claims for higher ratings for service-connected hallux valgus of both feet.

2.  The Veteran's right knee disability is manifested by pain and slight limitation of motion; extension is full; flexion is not limited to 30 degrees or less; and there is no recurrent subluxation or lateral instability of the right knee joint. 

3.  The Veteran's left knee disability is manifested by pain and slight limitation of motion; extension is full; flexion is not limited to 30 degrees or less; and there is no recurrent subluxation or lateral instability of the left knee joint. 

4.  During the period prior to June 20, 2011, the Veteran's low back disability was manifested by degenerative disc and joint disease of the lumbosacral spine and pain; but, objectively, he had full forward flexion of his lumbar spine to 90 degrees, with full range of motion in all other directions.  There also was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  And he has not had any incapacitating episodes under the governing rating criteria.

5.  During the period from June 20, 2011, the Veteran's low back disability is manifested by degenerative disc and joint disease of the lumbosacral spine, some painful limitation of motion, muscle spasm, tenderness to palpation, and guarding; his remaining functional range of motion is better than 30 degrees of flexion; ankylosis is not shown.


CONCLUSIONS OF LAW

1.  The criteria are met for withdrawal of the claims for higher ratings for service-connected hallux valgus of both feet.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 

2.  The criteria are not met for a rating higher than 10 percent for the service-connected right knee disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012).

3.  The criteria are not met for a rating higher than 10 percent for the service-connected left knee disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012).

4.  During the period prior to June 20, 2011, the criteria are not met for an increased rating higher than 10 percent for his service-connected low back disability.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5237, 5242, 5243 (2012). 

5.  During the period from June 20, 2011, the criteria are not met for an increased rating higher than 20 percent for his service-connected low back disability.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5237, 5242, 5243 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Here, a December 2007 letter was sent to the Veteran regarding his initial service connection claims, prior to the April 2008 rating decision on appeal.  In cases such as this, where service connection has been granted and initial disability ratings and effective dates have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  Neither the appellant nor his representative has advanced any such arguments.  The provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved.  And this has been done; the Veteran has received both an SOC and supplemental statements of the case in July 2011 and April 2012, discussing the downstream disability rating element of his claim, citing the applicable statutes and regulations, and discussing the reasons and bases for assigning the initial ratings versus higher ratings.  Moreover, additional notice was provided in an August 2008 letter.  

Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, the appellant's VA and private medical records have been associated with the claims file.  The appellant was afforded VA medical examinations in October 2008, February 2011, and June 2011.  

The Veteran's representative has contended that the multiple VA orthopedic examinations were inadequate, essentially asserting that the examination reports contained inaccurate findings.  She and the Veteran stated that at his VA examinations his range of motion was not measured with a measuring device or goniometer.  If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings in the examination report, it must be returned as inadequate for rating purposes.  38 C.F.R. § 4.2.  Here, though, a review of the examination reports discloses detailed and thorough physical examinations with findings and comments from the examiner regarding the Veteran's disabilities.  The examiner clearly followed VA protocol in determining the active and passive ranges of motion in the Veteran's knees and low back - including, for example, the affect of pain on the ranges of motion.  Although it is not explicitly stated in the report that the examiner used a goniometer in making these determinations, the examiner specified the ranges of motion in degrees.  There is no evidence the examiner did not use a goniometer, and the mere fact that he cited the degree measurements tends to suggest he did, despite the contentions to the contrary.  A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The Board finds that the examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings.  The examinations were conducted by competent medical professionals.  In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's knee and back symptoms.  Further, the VA examination reports addressed the applicable rating criteria.  In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the knee and back disabilities to provide probative medical evidence for rating purposes.  The mere passage of time since does not, in and of itself, necessitate another examination.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (discussing this in the alternative context of a claim for service connection).  The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide these claims insofar as reassessing the severity of these disabilities.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).

As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991).  The Board concludes that the appellant was afforded adequate examinations.  

All relevant facts with respect to the increased rating claims addressed in the decision below have been properly developed.  Under the circumstances of this case, a remand would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claims at this time.

II. 
Analysis

A.  Hallux Valgus

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  This Veteran has withdrawn his appeal as to the issues of entitlement to higher ratings for hallux valgus of both feet and, hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues.  Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and they are dismissed.

B.  Higher Ratings 

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2011).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. (1991).  Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for the disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.  Rather, pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.  Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.  In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is 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.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. 


Bilateral Knee Disabilities 

The Veteran contends that his bilateral knee disabilities are more disabling than currently evaluated.

During the pendency of this appeal, in rating decisions dated in February and May 2009, the RO assigned higher 10 percent ratings for each service-connected knee disability, retroactively effective from December 8, 2007, the day after the Veteran's separation from service.  

Throughout the rating period on appeal, the RO has rated the Veteran's service-connected residuals of a left knee injury as 10 percent disabling under Diagnostic Code 5010, pertaining to traumatic arthritis, and has rated the service-connected postoperative residuals of a right knee injury as 10 percent disabling under Diagnostic Code 5010.

Under 38 C.F.R. § 4.71a , Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis.  Under Diagnostic Code 5003, 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 (Diagnostic Code 5200 etc.).  38 C.F.R. § 4.71a, Diagnostic Code 5003.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II. 

Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a. 

Diagnostic Code 5260 concerns limitation of leg flexion.  A noncompensable evaluation is assigned where flexion is limited to 60 degrees.  A 10 percent rating is warranted where flexion is limited to 45 degrees.  A 20 percent evaluation is for application where flexion is limited to 30 degrees.  Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 

Diagnostic Code 5261, pertaining to limitation of leg extension, is also of relevance here.  Under that Code section, a noncompensable evaluation is assigned where extension is limited to 5 degrees.  A 10 percent rating is warranted where extension is limited to 10 degrees.  A 20 percent evaluation is for application where extension is limited to 15 degrees.  A 30 percent rating applies where extension is limited to 20 degrees.  A 40 percent rating is warranted where extension is limited to 30 degrees.  Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 

VA's General Counsel  has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively.  VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997).  The General Counsel  subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Diagnostic Code  5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating.  VA's General Counsel  further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59.  This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

VA's General Counsel has additionally held that separate rating may also be assigned for limitation of knee extension and flexion.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004).  Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee.  Id. 

VA outpatient treatment records reflect treatment for complaints of bilateral knee pain.  In August 2008, the Veteran reported that his right knee popped and locked, and sometimes became unstable.  He had fallen after running.  His right knee had chronic pain at the medial patellar area.  The examiner diagnosed degenerative joint disease of the right knee.  In August 2008, the examiner noted that a July 2006 magnetic resonance imaging (MRI) scan of the left knee showed a bone bruise of the medial femoral condyle with injury to the soft tissues anterior extension of the medial collateral ligaments and posterior medial retinacular tissues, and an intact medial collateral ligament, with no evidence of meniscal tear.

On VA examination in October 2008, the Veteran complained of bilateral knee pain, limitation of motion, and swelling.  He reported that his right knee popped and cracked, and his left knee prevented him from squatting, running, or lifting heavy weights.  He wore a knee brace on his left knee, took pain medication, and had received cortisone injections to the sacrum and left knee.  He reported that he was going to school now and had trouble finding a job due to his back and knees.

On examination of the right knee, range of motion was from 0 to 135 degrees active, 0 to 140 degrees passive, and 0 to 135 degrees after fatiguing with pain at 135 degrees.  Extension was to 0 degrees with pain at the end of movement.  There was pain on motion.  An October 2008 X-ray study of the right knee showed an extra bony density above the tibial tubercle, which was well corticated and probably from an old healed trauma.  There was no joint effusion, and the three joint compartments were intact.  There were findings from an old injury, with no acute bony abnormality.

On examination of the left knee, range of motion was from 0 to 135 degrees active, 0 to 135 degrees passive, and 0 to 135 degrees after fatiguing with pain at 135 degrees.  Extension was to 0 degrees with pain at the end of movement.  There was pain on motion.  The examiner noted that a June 2007 X-ray study of the left knee showed calcification along the surface of the medial femoral condyle, which is usually associated with a remote prior injury to the medial collateral ligament, with no other findings.  

The examiner indicated that with respect to both knees, there was tenderness to palpation medially on the left and laterally on the right.  There was mild crepitus and popping of the left knee, and there was no swelling, lump behind the knee or laxity.  The diagnoses were right knee strain with evidence of old healed injury, and left knee X-ray evidence of remote prior injury to the medial collateral ligament with no arthritis.

A July 2009 VA outpatient treatment record reflects that the Veteran complained of bilateral knee pain. He said his left knee was unstable at times, he wore a brace, and he wanted a cane.  On examination, the examiner indicated that he had full range of motion without edema or joint inflammation except for the left shoulder and both knees.  The diagnosis was chronic bilateral knee pain.  In a July 2009 letter to the Veteran, the VA physician indicated that his X-ray studies showed old trauma changes of the right knee and old avulsion injury of the left knee with exostosis.  An October 2009 MRI scan of the left knee showed a tear of the medial quadriceps tendon.  In an addendum, a physician opined that surgery was not indicated.

On VA knee examination in February 2011, the Veteran complained of weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability and pain.  He did not experience heat, redness, deformity, tenderness, drainage, effusion, subluxation or dislocation.  He reported functional impairment in kneeling, bending, sitting, or standing for long periods.  He reported flare-ups as often as twice per week, lasting for two to five hours.  These were precipitated by physical activity and stress.  

On examination, he walked with a normal gait.  He did not require any assistive devices for ambulation.  The right knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement.  The left knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement.  Neither knee showed locking pain, genu recurvatum or crepitus.  There was no ankylosis.  Range of motion of the right and left knees was from 0 to 140 degrees.  Repetitive range of motion was possible, and was from 0 to 140 degrees.  For both knees, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial lateral meniscus stability test were all within normal limits.  The subjective factors were complaints of knee pain, stiffness and tenderness.  Surgical scars were seen on the right knee.  An X-ray study of the right knee was within normal limits.  An X-ray study of the left knee showed a trace of dystrophic calcification in the proximal aspect of the medial collateral ligament. The diagnoses were status post right knee arthroscopic surgery.  The left knee diagnosis was left knee sprain.

Subsequent VA outpatient treatment records reflect treatment for bilateral knee pain.  A February 2012 VA rheumatology treatment note reflects that the Veteran complained of back pain; on examination, he had full range of motion of all joints except the hips.

At his October 2012 Board hearing, the Veteran testified that he had bilateral knee pain, instability, and swelling.  He said he wore knee braces and used a cane.

After a review of all of the evidence of record, the Board finds that the range of motion findings detailed above do not warrant a compensable rating under the Diagnostic Codes pertaining to limitation of motion, as active range of motion of each knee was from 0 to 140 degrees (i.e., full range of motion) on VA examination in February 2011, and from 0 to 135 in October 2008, even after repetitive motion and in consideration of pain.  See 38 C.F.R. § 4.71, Plate II. Separate compensable ratings are not warranted based on limitation of motion during this period, as the medical evidence does not show that flexion or extension of either knee was limited to even noncompensable levels.  In reaching this determination, the Board is cognizant that the intent of the Rating Schedule is 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; Burton, supra.  In this regard, the Board observes that the Veteran has complained of pain during the rating period; however, such pain does not result in functional loss.  The Court has recently held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell, supra.  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40.  The Board has considered the factors regarding pain and functional loss noted above.  Here, however, the weight of the evidence is against a finding that pain results in functional loss warranting the assignment of an increased evaluation.  In this respect, the February 2011 VA examination revealed range of motion from zero to 140 degrees, and a February 2012 VA rheumatology treatment note also showed full range of motion of the knees.  While the Veteran reported constant pain, the examiner indicated that for both knees, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  Therefore, while the Veteran complained of pain in his bilateral knees, such does not result in functional loss warranting a rating in excess of 10 percent throughout the rating period on appeal.

Additionally, the medical evidence does not show recurrent subluxation or instability in either knee such as to warrant assignment of a compensable evaluation under Diagnostic Code 5257.  In this regard, the October 2008 and February 2011 VA examiners indicated that there was no laxity or instability of the knees.  Hence, a higher rating is not warranted under this code, and a separate rating for instability is also not warranted.  See VAOPGCPREC 23-97, 9-98.  Therefore, the Board finds that a rating higher than 10 percent is not warranted for the service-connected disabilities of the right and left knees.

The Board is mindful of the Veteran's lay assertions regarding the severity of his knee disabilities and his contention that he has instability of the knees.  His statements are competent in regard to reports of symptoms and credible to the extent of the Veteran's sincere belief that his symptoms are more severe than what his current rating reflects.  The Board nevertheless must consider these lay assertions along with the other relevant evidence in the file, including the medical evidence as reflected in the results of his objective medical examinations.  The competent and credible lay evidence is outweighed by the competent and credible objective medical opinions of the examiners as they have expertise in evaluating the severity of his knee disabilities. 

The Board again notes that, in rating musculoskeletal disabilities, it is appropriate to consider additional limitation of function due to factors such as pain, weakness, incoordination and fatigability.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra; Burton, supra; Mitchell, supra.  In the present case, the evidence of record reveals numerous complaints of bilateral knee pain.  Indeed, while knee pain is recognized, the objective evidence simply fails to demonstrate that such pain has resulted in additional functional limitation for either knee comparable to the next-higher 20 percent rating under Diagnostic Codes 5260 or 5261.  Again, the Veteran's flexion is not limited to 30 degrees or less, even with consideration of additional limitation of motion due to pain, and his extension is full.  A higher rating in excess of 10 percent is not warranted for either knee.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 

The Board has also contemplated whether an additional separate evaluation is applicable here.  In this regard, the Board acknowledges VAOPGCPREC 9-2004, where it was held that a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg.  However, in the present case, the medical findings do not establish limitation of both flexion and extension of either knee to a compensable degree. Thus, assignment of separate evaluations for limitation of flexion and extension of either leg is not appropriate here.

The Board has considered whether a higher or separate rating for either knee is warranted under any alternate diagnostic code.  However, as the evidence fails to establish ankylosis, Diagnostic Code 5256 is not for application.  Similarly, as the evidence fails to demonstrate nonunion or malunion of the tibia or fibula, a higher rating is not possible under Diagnostic Code 5262.  Additionally, as there is no showing of genu recurvatum, Diagnostic Code 5263 is inapplicable.  Moreover, as the evidence fails to demonstrate an abnormality of the meniscus, or removal of such, Diagnostic Codes 5258 and 5259 are inapplicable.  There are no other relevant code sections for consideration. 

Therefore, the Board finds that the preponderance of the evidence is against the claims for higher ratings for the service-connected right and left knee disabilities, and these appeals must therefore be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Lumbosacral Spine

The Veteran contends that his low back disability is more disabling than currently evaluated.  

The RO has rated his service-connected degenerative disc and joint disease of the lumbosacral spine as 10 percent disabling from December 8, 2007, and 20 percent disabling from June 20, 2011.

The Board notes that the Veteran's service-connected radiculopathy of each lower extremity is separately rated as 10 percent disabling.  Symptoms related to service-connected radiculopathy may not be considered while evaluating the service-connected low back disability.  See 38 C.F.R. § 4.14. 

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply:  a 10 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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.  A 40 percent evaluation is appropriate for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242.  Note (1) requires consideration also of any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, backward extension from zero to 30 degrees, left and right lateral flexion (side bending) from zero to 30 degrees, and left and right lateral rotation (twisting) from zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, backward extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2).  Note (4) provides that each range of motion measurement is rounded to the nearest five degrees.

Having carefully considered the Veteran's contentions in light of the evidence of record and applicable law, and for the reasons and bases discussed below, the Board finds that his service-connected low back disability is appropriately evaluated as 10 percent disabling prior to June 20, 2011, and as 20 percent disabling from June 20, 2011.

VA outpatient treatment records reflect treatment for complaints of low back pain.  In August 2008, the Veteran reported that he had sharp continuous back pain that radiated down his bilateral posterior hips to the distal tibial region.  Pain was aggravated by prolonged positions or jarring movements.  He had intermittent tingling/numbness in the posterior iliac joints down to the distal tibial area.  He took Vicodin daily.  The diagnosis was degenerative joint disease of the lumbar spine, and the Veteran was referred for physical therapy.  A subsequent August 2008 physical therapy note reflects that the Veteran complained of low back pain when sitting, standing or walking long distances.  He reported continuous numbness and tingling in both legs down to the knees.  The physical therapist indicated that active lumbar range of motion was restricted in all planes of motion, but did not list the degrees of his range of motion.  The Veteran was given a TENS unit.  Subsequent VA outpatient treatment records reflect ongoing treatment for chronic low back pain.

On VA examination in October 2008, the Veteran complained of low back pain and limitation of motion.  He said he took pain medication, and had received cortisone injections to the sacrum.  He said the pain went down both legs and he had weakness of the legs when his pain was bad.  His pain was exacerbated by standing or sitting for a prolonged period.  His wife sometimes helped him to get out of bed and walk to the bathroom at times.  On examination, his gait was normal.  There was tenderness to palpation over the lower lumbar spine and over the coccyx.  There was no muscle spasm, and curvatures were normal.  There was no guarding.  Straight leg raising was positive bilaterally with pain in the low back, left medial leg and right lateral leg.  Otherwise, a neurological examination was normal.  Range of motion of the thoracolumbar spine was full for all movements.  There was pain only on flexion and extension.  Flexion and extension were painful at the end of range of motion.  The examiner noted that he reviewed radiological reports brought by the Veteran.  A July 2008 magnetic resonance imaging (MRI) scan of the lumbar spine showed a tiny central disc herniation at L5-S1, and bilateral facet hypertrophy with no stenosis.  There was mild disc bulge at L4-5 with no stenosis at L4-5, and bilateral facet hypertrophy at L3-4.  The remaining levels were unremarkable.  The examiner diagnosed mild degenerative disc and joint disease of the lumbosacral spine.

In July 2009, the Veteran complained of chronic back pain and sciatica, and reported that he took hydrocodone for pain, and used a topical gel and a TENS unit.  The diagnostic assessment was chronic low back pain with lower extremity weakness and numbness.  In a July 2009 letter to the Veteran, the VA physician indicated that his X-ray studies showed mild arthritis of the spine.  An October 2009 MRI scan of the lumbar spine showed an annular tear at L5-S1.  In an addendum, a physician opined that surgery was not indicated.  VA outpatient treatment records dated in 2010 reflect that he was given injections for complaints of back pain.  In December 2010, the Veteran complained of back pain status post S1 root injection with no pain relief, and also complained of tailbone pain.  On examination, he had an antalgic gait, with full range of motion for all planes tested, and also had limited motion on the left side due to pain.

On VA examination in February 2011, the Veteran said his back disability limited his ability to walk.  He could walk one-half mile, and this took him one and one-half hours.  He had not experienced falls due to his spine condition.  He complained of stiffness, fatigue, spasms, decreased motion, parestheisa and numbness.  He had weakness of the spine, leg and foot.  He reported constant severe back pain.  He reported treatment with narcotics, back brace, Hydrocodone, cortisone shots, TENS unit, and electrode rehabilitation.  He reported one incapacitating episode in the past 12 months, in November 2010 for three days.  He said that bed rest was recommended by Dr. K.  He reported functional impairment in sitting, standing, lifting, bending, walking, etc.  On examination, his posture was normal, and he walked with a normal gait.  He did not require any assistive device for ambulation.

Range of motion of the thoracolumbar spine was as follows:  flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees.  There was pain at the end of these ranges of motion.  Repetitive range of motion was possible, and there was no additional limitation of motion.  There was no evidence of radiating pain on movement.  Muscle spasm was absent.  No tenderness was noted.  There was no guarding of movement.  The examination did not reveal any weakness.  Muscle tone was normal, musculature was normal, there was negative straight-leg raising on the right and left.  Lasegue's sign was negative, and there was no atrophy present in the legs.  There was no ankylosis of the thoracolumbar spine.  Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  An inspection of the spine revealed normal head position with symmetry in appearance.  There was symmetry of spinal motion with normal curves of the spine.  A neurological examination of the spine showed no sensory deficits from L1-L5.  The examination of the sacral spine revealed no sensory deficits of S1.  There was no lumbosacral motor weakness.  The right and left lower extremity reflexes were 2+ at the knees and ankles.  There was no sign of pathologic reflexes.  The examination revealed normal cutaneous reflexes.  There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement.  There were no non-organic physical signs.

On VA examination spine examination on June 20, 2011, the Veteran reported that he had been diagnosed with sacroilitis and he had limitation in walking due to his spine and sacroilitis.  He said that on average, he could walk 100 yards, which took six minutes.  He said he had fallen due to his spine condition.  He complained of stiffness, fatigue, spasms, and decreased motion.  He did not experience paresthesia and numbness.  He reported weakness of the spine, leg and foot.  He denied bowel or bladder problems related to the spine problem.  He complained of constant severe low back pain which radiated down his legs.  It was exacerbated by physical activity and stress, and was relieved by rest and TENS unit.  He used a TENS unit, back brace, and cane.  He said that in the past 12 months, his condition had not resulted in any incapacitation.  On examination, his posture was normal and he walked with a normal gait.  He did not require any assistive device for ambulation. 

On examination of the thoracolumbar spine, there was evidence of radiating pain on movement described as shooting pain with active movement.  Muscle spasm was present and was described as muscle spasm at paravertebra.  The muscle spasm did not produce an abnormal gait.  There was tenderness with palpation.  Spinal contour was preserved, though there was guarding.  Guarding did not produce an abnormal gait.  The examination revealed weakness of movement.  Muscle tone and musculature was normal.  There was positive straight leg raising on the right and left.  Lasegue's sign was negative.  There was no atrophy in the limbs, and no ankylosis of the thoracolumbar spine.  Range of motion of the thoracolumbar spine was as follows:  flexion to 55 degrees, with pain at 45 degrees, extension to 25 degrees, with pain at 20 degrees, right and left lateral flexion to 30 degrees with pain at 25 degrees, and right and left lateral rotation to 30 degrees with pain at 25 degrees.  Repetitive range of motion was possible, and there was no additional degree of limitation.  Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  There was normal head position with symmetry in appearance.  There was symmetry of spinal motion with normal curves of the spine.  An X-ray study of the thoracic spine showed degenerative arthritis and trace of lower thoracic lumbar junction scoliosis was suggested.  A sacroiliac X-ray study was abnormal and showed mild sclerosis of the bilateral sacroiliac joints inferiorly.  The examiner diagnosed intervertebral disc syndrome with degenerative arthritis changes, and the most likely involved peripheral nerve was the sciatic nerve.

The effect of the condition was pain, stiffness and difficulty with bending, prolonged sitting, walking and climbing stairs.  The diagnosis was degenerative disc disease of the lumbosacral spine, and degenerative joint disease of the lumbosacral spine.  The subjective factors were complaints of back pain, spasms, and stiffness.  The objective factors were lumbar spine pain during range of motion exercise.

Subsequent VA outpatient treatment records reflect ongoing treatment for severe chronic low back pain.

During the period prior to June 20, 2011, the VA examinations in October 2008 and February 2011 do not reflect forward flexion of the thoracolumbar spine to 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  To the contrary, his forward flexion during this period was full (90 degrees), i.e., normal.  In fact, he had full range of motion in all directions, with pain noted only at the ends of the ranges of motion, and range of motion or joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination following repetitive use.  There was no objective evidence of spasm.  Tenderness was noted in October 2008 but not in February 2011.  Further, the February 2011 examiner found no postural abnormality,  no fixed deformity, no abnormality of musculature, no spasm/guarding/tenderness with preserved spinal contour and normal gait, no spasm/guarding/tenderness with abnormal gait/spinal contour/scoliosis/reversed, and no lordosis or kyphosis.  A neurological examination was normal, as well. Moreover, even considering the Veteran's subjective complaints of pain on motion, the medical evidence of record does not demonstrate pain or additional limitation of motion in response to repetitive motion that would support an increased evaluation during this period.  See DeLuca, supra; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2012).  In sum, a higher 20 percent rating is not warranted during the period prior to June 20, 2011.  

During the period from June 20, 2011, a higher 40 percent rating is not warranted for the service-connected low back disability, as the evidence does not show forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  On VA examination of June 20, 2011, flexion was performed to 55 degrees, with pain at 45 degrees.  In other words, forward flexion was no worse than 45 degrees, even with consideration of pain.  The June 2011 VA examiner indicated that there was no ankylosis of the thoracolumbar spine.

As for separate evaluations of the chronic neurologic manifestations associated with his low back disability, as noted above, additional separate neurological ratings have already been awarded for radiculopathy of both lower extremities under 38 C.F.R. § 4.124a, Diagnostic Code 8520.

And since there is degenerative disc disease, the Board also has considered whether a higher rating is warranted via application of Diagnostic Code 5243. This Diagnostic Code provides that intervertebral disc syndrome (IVDS) may be rated under the general rating formula for diseases and injuries of the spine, outlined above, or it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25.  The rating criteria for IVDS based on incapacitating episodes provides for a 10 percent rating where the evidence demonstrates incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the last 12 months.  A 20 percent rating applies where the evidence demonstrates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the last 12 months.  But Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician."  On VA examination in February 2011, the Veteran reported that a physician prescribed bed rest for a single incapacitating episode of three days in November 2010.  There is no evidence of incapacitating episodes that meet the above regulatory definition, and no evidence of such an episode for at least one week, as required for a 10 percent rating under this Code.  During his June 2011 VA examination, the Veteran expressly denied having experienced any incapacitating episodes during the past 12 months.  As such, Diagnostic Code 5243 cannot serve as grounds for increasing the rating for his low back disability.  There are no other relevant code sections for consideration.

While the Veteran has reported subjective complaints including pain, the objective medical findings on examination are of greater probative value than his allegations regarding the severity of his lumbosacral spine disability.  The 10 percent rating in effect prior to June 20, 2011 and the 20 percent rating in effect since then, make provision for his pain, and most of the other relevant factors in rating his disability, including the measurement of his range of motion, and whether he has associated neurological manifestations, etc., are based on objective testing and the results.

For these reasons and bases, the preponderance of the evidence is against this claim, so the benefit-of-the-doubt rule is inapplicable, and this claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 54-56. 

Extraschedular Considerations

The Board also finds that the circumstances of this case are not so exceptional or unusual as to render impractical the application of the regular schedular standards and warrant referral of this claim to the Director of Compensation and Pension Service or the Under Secretary for Benefits for consideration of an extra-schedular evaluation.  38 C.F.R. § 3.321(b)(1). The schedular rating criteria for the Veteran's bilateral knee disabilities and low back disability reasonably describe and contemplate the extent and severity of these disabilities, including insofar as his specific symptoms (e.g., chronic arthritic pain and associated limitation of motion, etc.) since they are considered in the applicable Diagnostic Codes 5003, 5010, 5242, 5243, 5257, 5260, and 5261.  See Thun v. Peake, 22 Vet. App. 111 (2008). As such, there is no obligation to refer these claims for extra-schedular consideration.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227   (1995).

ORDER

The appeal for higher ratings for hallux valgus of both feet is dismissed.

A higher rating in excess of 10 percent for the right knee disability is denied.

A higher rating in excess of 10 percent for the left knee disability is denied.

During the period prior to June 20, 2011, a higher rating in excess of 10 percent for the low back disability is denied.

During the period from June 20, 2011, a higher rating in excess of 20 percent for the low back disability is denied.


REMAND

Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim for a higher rating for an acquired psychiatric disorder/PTSD, and for a TDIU rating. 38 U.S.C.A. § 5103A  (West 2002); 38 C.F.R. § 3.159 (2012).

It appears that relevant private medical records are not on file.  For example, private medical records dated in 2010 from Dr. M.A.D. (a dentist), show that the Veteran reported that he was hospitalized for panic attacks in 2008.  Such 2008 records are not on file and should be obtained.  Also, a September 2011 VA mental health note reflects that the Veteran was seen by Dr. Greene of MHAT for an initial evaluation in July 2009, and was then followed by Dr. Gonzalez of GMHC, with the last appointment in October 2010.  Since then he has reportedly been in treatment at Cobb CSB (Cobb and Douglas County Community Services Board) under the care of Dr. Pandya, and his last appointment was in May.  These records from are not on file and should be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c).  Relevant ongoing medical records should also be obtained regarding treatment for his service-connected disabilities.  Id.; Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).  

The Veteran underwent VA psychiatric examinations in January 2009 and February 2011 to evaluate his service-connected psychiatric disorder (chronic acquired psychiatric disorder to include PTSD).  Testimony presented during the October 2012 Board hearing suggests that there has been a worsening of the PTSD since the February 2011 VA compensation examination.  As such, the Board has an obligation to have the Veteran reexamined to reassess the severity of his acquired psychiatric disorder/PTSD.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007) (when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old). 

As noted above, the Veteran contends that he is unemployable due to his service-connected disabilities, to include his psychiatric disorder and his back disability.  The law provides that a TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  Moreover, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  The Veteran filed a claim for a TDIU rating in June 2012, and this claim is a component of the current claims for higher ratings.  Accordingly, the Board has jurisdiction over this issue.  However, in the present case, additional development is required.  Specifically, the RO must provide appropriate notice and adjudicate the claim.

Although the Veteran has undergone multiple VA examinations to evaluate his service-connected disabilities, a VA medical opinion has not yet been obtained as to whether or not his service-connected disabilities in combination render him unemployable. 

VA may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disabilities do not prevent him from performing work that would produce sufficient income to be substantially gainful rather than just marginal.  See Friscia v. Brown, 7 Vet. App. 294 (1995).  This in this instance requires having him examined for a medical opinion on this determinative issue of employability.  Friscia, 7 Vet. App. at 297. Hence, the VA compensation examiner should also opine as to whether the Veteran is incapable of obtaining and maintaining substantially gainful employment, versus just marginal employment, as a result of his service-connected disabilities.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for a psychiatric disorder since separation from service in December 2007, and for any service-connected disability since March 2012.  After securing any necessary release(s), the RO/AMC should obtain these records.  In particular, the RO/AMC should attempt to obtain relevant psychiatric treatment records from Dr. Greene of MHAT, Dr. Gonzalez of GMHC, and from Dr. Pandya of Cobb CSB.

If any attempts to locate additional identified records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 

2.  The RO/AMC must (a) ensure that all notice obligations are satisfied concerning the claim for a TDIU rating, and (b) after obtaining the VA medical opinion discussed in paragraph 3, below, adjudicate such claim. 

3.  After completion of the foregoing, schedule the Veteran for a VA psychiatric examination to determine the current level of severity of his service-connected acquired psychiatric disorder/PTSD.  All necessary tests and studies should be performed.  The claims file must be provided to and reviewed by the examiner in connection with the examination.  

(a) The examiner is asked to comment on the level of occupational and social impairment resulting from the Veteran's service-connected acquired psychiatric disorder/PTSD.  The examiner should provide a Global Assessment of Functioning score. 

(b) The examiner should opine as to whether it is at least as likely as not that the Veteran is unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities (acquired psychiatric disorder/PTSD, a low back disability, bilateral knee disabilities, bilateral hallux valgus, tinnitus, sinusitis, radiculopathy of the lower extremities, limited motion of the temporomandibular articulation, and erectile dysfunction), consistent with his education and occupational experience, irrespective of age and any non-service-connected disorders. 

The examiner should provide a rationale for any opinion provided. 

The Veteran is hereby advised that failure to report for this examination, without good cause, may have detrimental consequences on his claim.  38 C.F.R. § 3.655. 

4.  Then readjudicate the claim for a rating higher than 30 percent for acquired psychiatric disorder/PTSD, with consideration of any additional evidence obtained since the July 2011 supplemental statement of the case.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. 

The appellant 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. 2012).



______________________________________________
K. PARAKKAL 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs