Citation Nr: 1306053 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-09 936A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to an initial evaluation in excess of 10 percent prior to December 4, 2006, for internal derangement of the right knee with degenerative changes, status post arthroscopic surgery (hereinafter right knee disability). 3. Entitlement to an initial evaluation in excess of 30 percent as of February 1, 2007, for the service-connected right knee disability. 4. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from March 1967 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2007rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Procedural History and Clarification of Issues on Appeal This case was brought before the Board in September 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. The Veteran's right knee disability has been assigned a total (100 percent) evaluation for the periods December 4, 2006, to February 1, 2007, and from October 13, 2008, to December 1, 2009. As the Veteran has been assigned the highest possible evaluation for this disability during these periods, the decision below will neither address these periods nor disturb the previously awarded total evaluations. See generally AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the Court's holding in Rice, as well as the evidence of record, the Board has amended the issues on appeal to include entitlement to TDIU as reflected above. However, that derivative TDIU claim, as well as the service connection claim for a left knee disability, requires further development prior to a decision on the merits. As such, the issue of entitlement to TDIU, in addition to the service connection claim for left knee disability, 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. Prior to December 4, 2006, the Veteran's right knee disability was manifested by subjective complaints of pain and objective evidence of noncompensable limitation of motion and arthritis established by X-ray findings. There is no objective evidence of compensable limitation of motion, instability or subluxation of the right knee. 2. As of February 1, 2007, the Veteran's right knee disability was manifested by subjective complaints of pain and objective evidence of noncompensable limitation of flexion and extension limited by no more than 15 degrees of motion. There is no objective evidence of compensable limitation of flexion, instability or subluxation of the right knee or chronic residuals of total right knee replacement after October 2008 resulting in "severe" pain or weakness of the right knee. 3. Prior to September 27, 2010, the Veteran's PTSD was manifested by a depressed mood with flashbacks and some sleep impairment and nightmares; he was able to maintain successful personal and professional relationships with no evidence of psychotic features, panic attacks, obsessional rituals or cognitive impairment. 4. As of September 27, 2010, the Veteran's PTSD is manifested by symptoms of unprovoked irritability and anger, depressed mood, suicidal ideation, an inability to adapt to stressful circumstances and increasing social isolation; there is no evidence of persistent delusions or hallucinations, disorientation to time or place, or severe memory loss. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for a right knee disability prior to December 4, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260 and 5261 (2012). 2. The criteria for an initial evaluation in excess of 30 percent for a right knee disability as of February 1, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5055, 5257, 5260 and 5261 (2012). 3. The criteria for an initial evaluation in excess of 50 percent for PTSD prior to September 27, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 4. The criteria for an evaluation of 70 percent, but not greater, for PTSD as of September 27, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through October 2006, December 2008 and February 2009 letters sent to the Veteran that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claims, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. Further, with respect to the increased initial evaluation claims on appeal, where service connection has been granted and an initial disability rating and effective date 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 downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained, as have Social Security Administration (SSA) disability records. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in January 2007, and October and November 2011. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of evaluating the Veteran's disabilities, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the instant claim was previously remanded by the Board in September 2011. Specifically, the Board instructed SSA disability records be obtained and the Veteran provided additional VA examinations to address the current severity of his service-connected right knee disability and PTSD. SSA records have been obtained and associated with the claims file, and the Veteran was provided the requested examinations in October and November 2011, which the Board have found to be adequate. As such, there has been substantial compliance with the prior remand, and adjudication of the Veteran's claims may proceed. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. I. Increased Initial Evaluation Claims Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Knee Disability The Veteran's right knee disability has been evaluated as 10 percent disabling prior to December 4, 2006, and 30 percent disabling as of February 1, 2007. By way of history, the Veteran underwent a total knee replacement in October 2008. See Saline Memorial Hospital medical report. Prior to this surgery, the Veteran's disability was rated under Diagnostic Code 5299-5003, evaluating based on degenerative arthritis with painful motion. Also potentially applicable to both stages of the appeal are Diagnostic Codes 5257, pertaining to subluxation and/or instability of the knee, and 5260 and 5261, pertaining to limitation of flexion and extension of the leg, respectively. As of the October 2008 knee replacement surgery, the Veteran's right knee disability has been evaluated under Diagnostic Code 5055, pertaining to prosthetic replacement of the knee joint. For the sake of clarity, the Board will discuss the legal and regulatory criteria pertaining to the Veteran's appeal before discussing the staged ratings separately below. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). With any form of arthritis, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Under Diagnostic Codes 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment. Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258-9) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. Finally, Diagnostic Code 5055, applicable after the October 2008 total right knee replacement surgery, provides for a 100 percent evaluation for one year following implanatation of prosthesis. Afterwards, a 60 percent evaluation is warranted with chronic residuals resulting in severe painful motion or weakness in the affected extremity. A minimum 30 percent evaluation is to be assigned following knee replacement surgery. With intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to Diagnostic Codes 5256, 5261 or 5262. See 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II (2012). A. Prior to December 4, 2006 Prior to December 4, 2006, the Veteran's right knee disability has been assigned an initial 10 percent evaluation. Having considered the evidence of record, the Board finds that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his right knee disability prior to December 4, 2006. The Veteran's right knee disability was manifested during this stage of the appeal by subjective complaints of pain. In addition, there is objective evidence of noncompensable limitation of motion and arthritis established by X-ray findings. There is no evidence dated from October 6, 2006, the date the Veteran filed his claim, to December 4, 2006, the date a temporary total evaluation was awarded, showing compensable limitation of motion; subluxation, instability, or laxity; or impairment to the tibia or fibula. A January 2007 VA examination report, conducted approximately one month following arthroscopic surgery, revealed the Veteran demonstrated full extension of the right leg to zero degrees and flexion to 105 degrees; no instability was noted. There was no additional loss in range of motion due to pain, fatigue, weakness or incoordination. See DeLuca, supra. The Board finds that an initial evaluation in excess of 10 percent is not warranted at any point prior to December 4, 2006. There is no objective evidence of compensable limitation of motion or instability shown during this period. The Board acknowledges the Veteran's contentions that his right knee disability warrants an initial evaluation greater than 10 percent. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone, as a layman, cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his knee disability. As a preponderance of the evidence is against the assignment of an initial evaluation in excess of 10 percent for the Veteran's right knee disability prior to December 4, 2006, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. As of February 1, 2007 As of February 1, 2007, the Veteran's right knee disability has been assigned an initial 30 percent evaluation. For the reasons discussed below, the Board finds that an initial evaluation greater than 30 percent is not warranted for the Veteran's right knee disability at any point during this stage of the Veteran's appeal. In this regard, the Veteran's right knee disability is manifested by subjective complaints of pain and difficulty walking, with objective evidence of some limitation of motion. There is no objective evidence of severe residuals of total knee replacement surgery, severe limitation of motion or instability of the right knee. Private and VA treatment records indicate that, prior to the October 2008 total knee replacement surgery, the Veteran continued to present with right knee pain, which he reported greatly affected his mobility. For example, a March 2007 private treatment record notes the Veteran reported having catching, locking and crepitus in the right knee. A September 2007 VA treatment record notes the Veteran was referred because of pain in both knees. Following the October 2008 total right knee replacement, and the expiration of a temporary total evaluation December 1, 2009, treatment records reflect the Veteran continued to complain of right knee pain of varying severity. For example, a May 4, 2010, report from Saline Memorial Hospital notes the Veteran exhibited "good motion" of the right knee with no pain. However, a private treatment record dated May 10, 2010, notes the Veteran developed swelling in the right knee, which required aspiration, and exhibited approximately 90 degrees of flexion and 15 degrees of extension. The report of a November 2011 VA joints examination indicates the Veteran complained of pain and swelling of the right knee and exhibited flexion of the right leg to 95 degrees and extension to 5 degrees. There was no additional limitation of motion due to pain or after repetitive testing. See DeLuca, supra. Muscle strength was normal on flexion and extension. All stability testing was normal, and there was no evidence of recurrent patellar subluxation or dislocation. Based on the evidence described above, the Board finds that an initial evaluation greater than 30 percent is not warranted as of February 1, 2007, for his service-connected right knee disability under Diagnostic Codes 5257, 5260 and/or 5261. There is no objective evidence to indicate he suffered from limitation of motion and/or instability of such severity to warrant an increased evaluation. While the Veteran did exhibit reduced extension of the right knee both during private treatment and at the November 2011 VA examination, such limitation, itself, does not warrant an evaluation greater than 30 percent. Further, as noted above, there is no evidence of instability of the right knee. The Board has also considered whether an increased evaluation is warranted based on residuals of total right knee replacement under Diagnostic Code 5055. However, while the Veteran has clearly complained of right knee pain and weakness of varying severity during this stage of the appeal, the Board finds that the objective evidence does not indicate that the Veteran's symptomatology most closely approximates chronic residuals consisting of "severe" pain and/or weakness. In this regard, the Veteran's right knee pain appears to respond, at least somewhat, to treatment, and he is able to ambulate with the aid of a cane. Finally, the Board notes the November 2011 VA examination report reflects the Veteran's right knee disability does not affect the Veteran's ability to work. The Board acknowledges the Veteran's contentions that his right knee disability warrants an initial evaluation greater than 30 percent. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected right knee disability. As a preponderance of the evidence is against the assignment of an initial evaluation in excess of 30 percent for the Veteran's right knee disability as of February 1, 2007, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). PTSD The Veteran's PTSD is currently evaluated as 50 percent disabling throughout the appeal period, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Under this diagnostic code, a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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. Id. A 70 percent disability evaluation is warranted when there is 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. With regard to the use of the phrase "such as" in 38 C.F.R. § 4.130, ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. A. Prior to September 27, 2010 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran does not meets the criteria for an evaluation greater than 50 percent for PTSD prior to September 27, 2010. See Fenderson, supra. A higher evaluation is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology more closely approximated a 70 percent evaluation or higher during this period. In this regard, the Board notes that the Veteran's treatment records do not contain evidence showing that he suffered from frequent panic attacks, obsessive rituals, hallucinations or delusions. A January 2007 VA examination report reflects the Veteran did not report hallucinations, and no delusional material was noted. Likewise, VA treatment records indicate the Veteran did not suffer psychotic features during this period. See, e.g., July 2007 and January 2009 VA psychiatric notes. With respect to memory loss, a symptom congruent with higher evaluations, the January 2007 VA examination report indicates the Veteran's memory was grossly intact. Higher ratings also take into account the inability to attend to basic personal appearance and hygiene, speech impairment, and impaired thought and judgment. The Veteran has persistently presented as casually or well-groomed. See, e.g., January 2007 VA examination report, January 2009 VA psychiatric note. He also presented throughout this period with logical and goal-directed thoughts, was alert and oriented in all spheres. With regard to the Veteran's ability to establish and maintain personal relationships, the Board, the Veteran reported at the January 2007 VA examination that he had been married to his second wife for 16 years and was close with her. While he had recently been written up for a confrontation with another employee, he worked full-time for the State of Arkansas as a maintenance supervisor for a majority of this period, leaving employment for an unrelated physical disability. Thus, the Board concludes that although the Veteran may have had some social difficulties during this period, particularly with society as a whole, he was capable of maintaining successful relationships. Therefore, the Veteran's impairment in this area was not significant enough to approximate the criteria for a 70 percent rating prior to September 27, 2010. Finally higher evaluations contemplate suicidal and homicidal ideation or a persistent danger of hurting himself or others. While the January 2007 VA examination indicates the Veteran reported some suicidal ideation, he denied suicidal intent or homicidal ideation. Further, subsequent VA treatment records indicate the Veteran denied suicidal and homicidal ideation. Also of record are the Veteran's GAF scores. As noted above, GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter, 8 Vet. App. at 242. The higher the score, the better the functioning of the individual. The Veteran's GAF scores during this period remained relatively steady between 41 (January 2009) and 45 (January 2007). GAF scores ranging between 41 and 50 are assigned when there are "serious" symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (no friends, unable to keep a job). See DSM-IV. Overall, the Board concludes the evidence does not support an evaluation greater than 50 percent prior to September 27, 2010. In making this determination, the Board acknowledges the Veteran's GAF scores of 41-45, representing "serious" symptomatology, and the January 2007 VA examiner's comment of "severe" symptoms of PTSD. However, the Board finds the preponderance of the evidence weighs against a finding that the Veteran's symptomatology during this stage more closely approximates that contemplated by a 70 percent evaluation. The Veteran was able to maintain successful personal and professional relationships, sustaining employment as a supervisor, and was able to function independently, with no evidence of psychotic features, panic attacks, obsessional rituals or cognitive impairment. He did, however, exhibit a depressed mood with some sleep impairment and nightmares. The Board finds such symptomatology does not result in an overall disability picture more closely approximating occupational and social impairment with deficiencies in most areas, required for the assignment of a 70 percent evaluation. See generally Mauerhan, 16 Vet. App. 436. In reaching this decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against an initial evaluation higher than 50 percent prior to September 27, 2010; therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. As of September 27, 2010 Treatment records indicate that, as of September 27, 2010, the Veteran's PTSD results in symptomatology that meets the criteria for an initial 70 percent evaluation, but not more. A Mental Diagnostic Evaluation, conducted on September 27, 2010, notes the Veteran presented in a depressed mood and reported flashbacks of being in Vietnam, reliving seeing his large number of friends that were killed. Other than an annual "reunion" with several Marine Corps friends, the Veteran reported that he and his wife mostly stay in the house and he doesn't like to go out to places because of the uncomfortable feeling he gets when a lot of people show up. The psychologist concluded that the Veteran is not able to cope with the mental/cognitive demands of work-like tasks given his depression and PTSD. Likewise, an October 2011 VA examination report reflects increased symptomatology when compared to the stage prior to September 27, 2010. For example, the report reflects the Veteran has a markedly diminished interest of participation in significant activities, exhibits irritability or outbursts of anger and hypervigilance. A mental status examination shows disturbances in motivation and mood, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships and suicidal ideation. The symptoms reflected by the September 2010 mental diagnostic evaluation and October 2011 VA examination indicate occupational and social impairment which is suggestive of a 70 percent disability evaluation. However, the evidence does not demonstrate symptomatology severe enough to merit a 100 percent evaluation. For example, while the evidence demonstrates that the Veteran experiences unprovoked outbursts of anger and suicidal ideation, it does not indicate that the Veteran is in persistent danger of hurting himself or others. Furthermore, a 100 percent evaluation is not warranted as there is no evidence of any gross impairment in thought process, grossly inappropriate behavior, a disorientation to time or place, or a memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Finally, there is no evidence of hallucinations or delusions, impairment of thought processes or inability to maintain minimal personal hygiene, symptoms contemplated by a 100 percent evaluation. Id. The Veteran's GAF scores were reported as 50-60, representing "moderate" symptoms by the September 2010 evaluation, and 45 at the October 2011 VA examination, representing "serious" symptoms. Therefore, Board observes that such GAF scores, when viewed in light of the evidence outlined above, is consistent with a 70 percent evaluation and the symptomatology contemplated by such evaluation. The Board acknowledges that the Veteran does not meet all of the criteria for a 70 percent disability evaluation. For example, there is no evidence of obsessional rituals or near-continuous panic or depression. However, there is evidence that he has some level of depression, unprovoked irritability, outbursts of anger and an inability to establish and maintain effective relationships. Furthermore, the record reflects the Veteran's symptomatology had increased during this period so as to negatively affect his social and occupational functioning. Under such circumstances and resolving any doubt in the Veteran's favor, the Board concludes that the Veteran meets the criteria for a 70 percent evaluation for this stage of the Veteran's appeal. See generally Mauerhan, 16 Vet. App. 436. Overall, the evidence discussed above supports no more than a 70 percent evaluation as of September 27, 2010. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence reflects the Veteran's symptomatology more closely approximates that contemplated by a 70 percent evaluation during this stage of the appeal. Therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Final Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran'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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the symptoms of his right knee disability which include limitation of motion and functional impairment are contemplated in the applicable rating criteria. Additionally, the Veteran's social and occupational impairment is contemplated in the applicable criteria that rate his PTSD. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An initial evaluation in excess of 10 percent for the right knee disability prior to December 4, 2006, is denied. An initial evaluation in excess of 30 percent for the right knee disability as of February 1, 2007, is denied. An initial evaluation in excess of 50 percent for PTSD prior to September 27, 2010, is denied. An initial evaluation of 70 percent, but not greater, for PTSD as of September 27, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Further development is necessary prior to analyzing the left knee and TDIU claims on the merits. The Veteran is currently diagnosed with left knee degenerative joint disease, status-post arthroscopy. Although the Veteran previously asserted that he injured his left knee while serving in Vietnam (see, e.g., October 2006 Benton Family Clinic (BFC) treatment note), the Board observes that, in written argument presented in January 2013, the Veteran, through his representative, alternatively maintains that he his left knee disability is etiologically related to his service-connected right knee disability. Service connection is permissible on a secondary basis for disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a). This includes situations where a service-connected condition has chronically, meaning permanently, aggravated the claimed disability, but compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b), effective October 10, 2006. 71 Fed. Reg. 52,744 -52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). The Veteran in this case has yet to undergo a VA examination to determine the etiology of his current left knee disability. In light of his contentions and the fact that he is already service-connected right knee disability, a VA examination should be afforded to him. Additionally, the Board notes that entitlement to TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In the instant case, the Veteran is in receipt of SSA disability benefits, in part due to service-connected disabilities. However, the Board observes a medical opinion has not yet been obtained to determine whether the Veteran is unable to obtain or pursue substantially gainful employment due solely to his service-connected disabilities. Friscia v. Brown, 7 Vet. App. 294 (1994). As such, on remand, such an opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Ensure that any outstanding VA medical evidence is obtained and associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine the etiology of his left knee disability. The claims file must be made available to and reviewed by the examiner. All tests should be conducted in conjunction with the examinations. The examiner is asked to: a). identify all left knee disabilities found to be present; b). opine whether it is at least as likely as not that the Veteran has a left knee disability that was incurred in service or is otherwise related to service, and reconcile that opinion with the Veteran's competent reports of having had left knee symptoms since service; c). opine whether it is at least as likely as not that the Veteran has a left knee disability that is proximately due to, or alternatively, aggravated by, the service-connected right knee disability; d). Opine as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's service-connected disabilities (PTSD, right knee replacement, diabetes mellitus type II and coronary artery disease), either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's service connection claim for left knee disability and TDIU claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ S. B. Mays Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs