Citation Nr: 1306403 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 07-12 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder. 2. Entitlement to a rating in excess of 40 percent for service-connected status post L3-4 laminectomy and discectomy with nerve root decompression and degenerative arthritis of the thoracolumbar spine. 3. Entitlement to a rating in excess of 10 percent for service-connected sciatica of the left lower extremity. 4. Entitlement to a compensable rating for service-connected hearing loss. 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 September 1960 to September 1967 and from August 1969 to September 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 2005, July 2007, April 2008, and August 2009 by the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). This case has a lengthy procedural history. In its September 2005 rating decision, the RO denied entitlement to a total disability compensation rating based on individual unemployability (TDIU rating), and the Veteran appealed. As will be discussed below, this has since been granted. In an unappealed February 2007 rating decision, in pertinent part, the RO granted service connection for thoracic spine arthritis (service connection was already in effect for lumbosacral strain), recharacterized the back disability as degenerative arthritis of the thoracolumbar spine, and assigned a 40 percent rating for this back disability, effective September 28, 2005. The RO also granted service connection and a 30 percent rating for degenerative arthritis of the cervical spine. In a July 2007 rating decision, the RO denied an increase in a noncompensable rating for service-connected hearing loss, and the Veteran appealed. In an April 2008 rating decision, in pertinent part, the RO denied an increase in a 50 percent rating for service-connected PTSD with major depressive disorder, granted a temporary total rating for convalescence for the service-connected thoracolumbar spine disability effective September 7, 2007, with a 40 percent schedular rating resuming November 1, 2007, and granted service connection and a 10 percent rating for sciatica of the left lower extremity as secondary to the thoracolumbar spine disability, effective September 26, 2007. The Veteran appealed for increased ratings for PTSD and the thoracolumbar spine disability. In an August 2009 rating decision, the RO denied an increase in the 10 percent rating for sciatica of the left lower extremity and the Veteran appealed. In September 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In January 2011, the Board remanded this case to the RO via the Appeals Management Center (AMC) for additional development. The case was subsequently returned to the Board. The Board notes that there are other issues that are not in appellate status. In rating decisions dated in September 2011 and October 2011, the RO in Huntington, West Virginia granted service connection for coronary artery disease and a chest scar, and granted entitlement to a total disability compensation rating based on individual unemployability (TDIU rating) retroactively effective from February 6, 2003. The RO also granted entitlement to special monthly compensation, and granted basic eligibility for Dependents' Educational Assistance. Since the Veteran did not appeal the ratings or effective dates assigned, these claims are no longer in dispute. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection). The Board also notes the Veteran previously withdrew his service connection claims for a prostate disorder and for the residuals of a traumatic brain injury by correspondence from his representative dated in November 2009 and January 2010. The Veteran has submitted additional pertinent evidence and argument to the Board, and his representative has waived his right to have the RO initially consider it. See 38 C.F.R. § 20.1304. The issue of entitlement to an increased rating for hearing loss 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. The Veteran's PTSD with major depressive disorder is manifested by no more than occupational and social impairment with deficiencies in most areas, such as judgment, thinking, family relations, work and mood. 2. The Veteran's thoracolumbar spine disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. The evidence of record does not show incapacitating episodes. 3. The Veteran's sciatica of the left lower extremity is manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased schedular rating of 70 percent, but no higher, for PTSD with major depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9434 (2012). 2. The criteria are not met for an increased rating in excess of 40 percent for the service-connected thoracolumbar spine disability. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2012). 3. The criteria for an increased schedular rating of 20 percent, but no higher, for sciatica of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, notice letters dated in May 2007, October 2007, February 2008, and March 2009 were sent prior to initially adjudicating these claims in the July 2007, April 2008 and August 2009 decisions at issue in this appeal, so in the preferred sequence. The letters informed the Veteran of the type of information and evidence required to substantiate these claims for increased ratings and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. He also was advised of the disability rating and effective date elements of these claims. See Dingess/Hartman, supra. Additional notice was provided in subsequent letters dated in February 2009, August 2009, and February 2011. The February 2009 letter provided examples of pertinent medical and lay evidence that he may submit (or ask VA to obtain) relevant to establishing his entitlement to increased ratings. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Moreover, these claims since have been readjudicated in the October 2011 SSOC, so since providing this additional notice. See Mayfield and Prickett, supra. The Veteran has received all required VCAA notice concerning these claims. And, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, above and beyond this, that it is unduly prejudicial - meaning outcome determinative of his claims. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO obtained his service treatment records (STRs), VA outpatient treatment records, and private medical records, and arranged for VA compensation examinations in October 2007, April 2009, June 2009, February 2011 and March 2011 to assess and reassess the severity of his service-connected psychiatric disorder, back disability, and sciatica of the left lower extremity. After the Veteran reported that he received benefits from the Social Security Administration (SSA), the RO attempted to obtain medical records from the SSA, but the SSA subsequently informed the RO that there were no available medical records because the Veteran did not apply for disability benefits. The Veteran was notified of this by a June 2008 letter. 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 psychiatric, back, and leg 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 psychiatric, back, and left leg 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. Analysis 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 (2012). 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). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "it is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. PTSD Service connection has been in effect for the Veteran's service-connected psychiatric disorder since September 1970. This disability was previously characterized as depressive reaction, and is currently characterized as PTSD with major depressive disorder. The RO has rated this psychiatric disorder as 50 percent disabling since July 3, 2000, and throughout the rating period on appeal, under Diagnostic Code 9411, pertaining to PTSD. The Veteran filed his current claim for an increased rating for PTSD with major depressive disorder in September 2007, and contends that this disorder is more disabling than currently evaluated. He has asserted that he is unable to work due to his PTSD with major depressive disorder and due to his back disability. In this regard, the Board notes that as a result of a recent October 2011 rating decision, a total disability compensation rating based on individual unemployability (TDIU rating) has been in effect since February 2003, both prior to and throughout the entire rating period on appeal. Both PTSD and major depressive disorder are evaluated under the General Rating Formula for Mental Disorders. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9434. The above set of symptoms is not an exclusive or exhaustive list, as evidenced by use of the phrase "such symptoms as," followed by a list of examples. So, rather, it serves as merely an example of the symptoms that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether he has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The higher the score, the higher the overall functioning of the individual is. GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (i.e., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). While the Rating Schedule indicates the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. VA outpatient treatment records reflect episodic treatment for PTSD and depression, including therapy and medication. On VA compensation examination in June 2006, the Veteran complained of poor appetite, sleep difficulty, fair to low energy, and daily depressed mood. He also complained of nightmares which left him drenched in sweat and needing to take a shower. These had diminished. He had intrusive recollections and transient flashbacks. He said he and his wife lived in the same house but he had his own apartment, and they lived separate lives. He reported that he saw his girlfriend daily. On psychiatric examination, he was clean, casually dressed, psychomotor activity was lethargic, speech was clear, attitude was cooperative, affect was moderately restricted, mood was anxious and depressed, and his concentration was poor. The examiner later stated that he had severe restriction of affect. He had moderately severe estrangement from others. He was unable to complete serial sevens due to poor concentration. He was oriented to person, place, and time. His thought process was circumstantial, thought content was unremarkable, he had no delusions, understood the outcome of his behavior, and partially understood that he had a problem. He had sleep impairment and no hallucinations. He had no inappropriate behavior, interpreted proverbs appropriately, had no obsessive/ritualistic behavior, no panic attacks, had good impulse control, no episodes of violence, and was able to maintain minimum personal hygiene. He had moderate problems with activities of daily living, and severe problems with other recreational activities. Remote, recent and immediate memory were normal. The examiner indicated that the Veteran had moderately severe PTSD and major depressive disorder that had not remitted. It was noted that the Veteran worked for the U.S. Department of Agriculture for 26 years, and retired in 2002, as he was eligible by age or duration of work. The Axis I diagnoses were PTSD and major depressive disorder, recurrent. The current GAF was 50. The examiner indicated that the Veteran in his opinion would merit an increase in service-connected PTSD and major depressive disorder. He had been involved in mental health intervention for his service-connected psychiatric disorders for three and a half decades, but in spite of his treatment, he continued to have mental health symptoms. The examiner opined that without this treatment, he would not be functioning as he is currently. The examiner indicated that there was not total occupational and social impairment due to PTSD signs and symptoms. The examiner opined that the Veteran's PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work, and mood. The examiner also indicated that there was reduced reliability and productivity due to PTSD symptoms. On VA compensation examination in October 2007, the examiner noted that the claims file was reviewed. He stated that the Veteran was receiving outpatient treatment for PTSD, and was taking medication. The Veteran reported that his depressed mood was much worse since his back surgery in September 2007. He reported difficulty sleeping, and said he slept only intermittently. His energy level was poor, and his sex drive had decreased substantially. He exhibited feelings of hopelessness and helplessness to a moderately severe degree. He said his concentration was sometimes OK, and other times not. His depressive disorder was moderately severe and the symptoms occurred daily. He said he was married on paper only, and he lived in the basement apartment of his wife's house. He had three children, two of whom were out of the home. He said the main reason he lived with his wife was to help with the care of his disabled son. He related that he was writing a book. He denied suicide attempts, and a history of violence or assaultiveness. On psychiatric examination, he was clean and neatly groomed, and lethargic. His speech was soft or whispered, and slow. His pitch and tone were fairly monotone. His attitude was cooperative and apathetic. His affect was apathetic and restricted. His mood was anxious and depressed. He had a short attention span, was able to do serial sevens (although he had a very hard time), and could spell a word forward and backward. He was oriented to person, time and place. His thought process was circumstantial, and thought content was unremarkable. There were no delusions. With respect to judgment, he understood the outcome of behavior. With respect to insight, he understood he had a problem. He had sleep impairment and no hallucinations. He interpreted proverbs appropriately, had no obsessive/ritualistic behavior, no panic attacks, no homicidal or suicidal thoughts, good impulse control, no episodes of violence, was able to maintain minimum personal hygiene, and had problems with the activities of daily living. Remote, recent and immediate memory were normal. The Veteran complained of daily intrusive memories or thoughts, and intermittent flashbacks. He reported that he sometimes woke up in the shower and felt like he had to cleanse himself to remove the perception of blood, and then he "felt crazy." He was visibly shaking during the evaluation. He was preoccupied with the war in Iraq and the news. The examiner indicated that the Veteran exhibited moderately severe restriction of affect. He did not smile, laugh, or cry, and his facial gestures were "plastic"-like. He was moderately severely estranged. He did have a female friend with whom he associated. He had a sense of foreshortened future. His sleep was poor, and he denied irritability or anger. He continued to be startled frequently to a moderately severe level, and exhibited hypervigilance. The examiner opined that the Veteran's PTSD symptoms were moderately severe. He reported that he retired in 2002 because he was eligible because of age or duration of work, and also due to his psychiatric problem. The Axis I diagnoses were PTSD and major depressive disorder, recurrent, moderately severe. The combined GAF for these disorders was 45. The examiner opined that the Veteran's PTSD and major depression were severe, and that his spinal surgery one month ago really made his depression worse. He also indicated that PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work and mood. He indicated that he did not have total occupational and social impairment due to PTSD signs and symptoms. VA medical records reflect that the Veteran was hospitalized for four days in March 2009 for complaints of worsening depression and suicidal ideation. On admission, he was clean, made good eye contact, and had no psychomotor abnormality. He was cooperative. Speech was normal in latency and volume, and the rate was slow. His mood was depressed, affect was full, and mood was congruent. Thought process was tangential and suicidal. He denied homicidal ideation, hallucinations, and delusions. There was no perceptual disturbance. Insight was poor, judgment was impaired, sensorium was elevated, and attention was normal. He was oriented times three. Remote memories were intact and recent memories were impaired. Concentration was poor. During the admission, the Veteran's medications were adjusted, he responded well, and his suicidal thinking was gone. He was discharged to home. On discharge, the Axis I diagnoses were major depressive disorder, PTSD, and narcotics dependency. The GAF was 45. A VA mental health noted dated on the same day as the March 2009 discharge summary indicated that any suicide thinking was quickly dismissed by the patient and by them. Physical issues surfaced including low blood pressure and syncope. At the time of discharge his mood was at baseline, there was minimal danger and no suicidal thinking. On VA compensation examination in April 2009, the examiner noted that the Veteran had a substantial history of VA mental health intervention for the past several decades, but in spite of this he was an inpatient last month for PTSD and depression due to suicidal ideation. He said that he lived in the same house as his wife, but lived on the lower level. He said he had the same girlfriend for years. He denied a history of suicide attempts, violence, or assaultiveness. On psychiatric examination, he was clean and appropriately dressed, psychomotor activity was retarded, his facial gestures were "plastic"-like, and did not vary with his emotions. His affect was severely restricted. His mood was anxious and depressed, he was able to do serial sevens, but was unable to spell a word forward and backward. He was oriented to person, place and time. His thought process was circumstantial, his thought content was unremarkable, he had no delusions, understood the outcome of his behavior, and understood that he had a problem. He had no sleep impairment, hallucinations, or inappropriate behavior. He had no panic attacks, homicidal or suicidal thoughts, and no obsessive/ritualistic behavior. He was able to maintain minimum personal hygiene. He had moderate to severe problems with the activities of daily living. His remote, recent and immediate memory were normal. The examiner diagnosed PTSD and major depressive disorder, intertwined and inseparable, and the GAF was 49. The examiner indicated that there was not total occupational and social impairment due to PTSD signs and symptoms. He also indicated that PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work and mood. Neurocognitive screening was conducted in June 2009, and the examiner indicated that on one of the tests, the Veteran scored overall in the range highly suggestive of feigning. He scored twice as high as the cutoff score for probable exaggeration. He endorsed a high frequency of symptoms and impairment that is highly atypical of individuals who have a genuine psychiatric or cognitive disorder. The examiner concluded that the Veteran produced scores that were inconsistent with each other, with expected performance relative to various clinical populations, and with his reported post-military achievement. Consequently, the testing did not result in interpretable findings. Another VA psychiatric examination was conducted in June 2009 by the same examiner who performed the April 2009 examination, and similar findings were shown. He stated that the Veteran's major depressive disorder remained continuous and severe without psychosis. This had been ongoing since the last examination in April 2009, and the symptoms were daily. The examiner diagnosed PTSD and major depressive disorder, severe, without psychosis. The GAF was 48. He added that the Veteran does not have a cognitive disorder. He again opined that the Veteran does not have total occupational and social impairment due to PTSD signs and symptoms. A December 2009 VA mental health clinic note reflects that the Veteran was slowly gaining weight because his appetite was better. A recent trip to Mexico was pleasant. He felt that Ritalin had helped considerably. On examination, grooming and hygiene were good, his motor behavior was normal, eye contact was good, his facial expression was normal and responsive. His attitude was cooperative, his mood was neutral, and his affect was appropriate/variable. Speech was relevant and spontaneous, thought processes were logical and goal directed, thought content was relevant, and insight was adequate. Sensorium was clear. There was no suicidality or homicidality. The diagnosis was PTSD, and the GAF was 60. Later in December 2009, the Veteran called the National Suicide Hotline, and said he was not suicidal but "I might be if this situation is not resolved." He was extremely upset at the processing time of his disability claim. In June 2010, he again called the hotline and said he was not suicidal but would have to start thinking about suicide if no one helped him. He said he could not pay his bills. VA outpatient notes from the mental health clinic reflect that his GAF was 55 in June 2010, and 60 in August 2010. In August 2010, it was noted that he was stable, spending time in Mexico, and returned for his daughter's wedding. He had no new complaints and was optimistic. At his September 2010 Board hearing, the Veteran reported that he had nightmares and flashbacks, and was depressed. He had no close friends and did not go out because his back was uncomfortable. He denied anger problems. He reported memory difficulties. On VA psychiatric examination in February 2011, the Veteran reported that he was still married, but he did not live with his wife. He lived with his daughter and her son. He had no regular contacts with any friends or veterans. He occasionally visited his neighbors. He reported that he watched television and had been writing a book on Vietnam for the past ten to fifteen years. On psychiatric examination, he was clean, neatly groomed, and appropriately dressed. Psychomotor activity was unremarkable, speech was spontaneous, and there was no eye contact. His attitude was cooperative, his affect was constricted, his mood was "better than usual." Attention was intact. He was not able to do serial sevens, but could spell a word forward and backward. He was able to do serial threes. He was oriented to person, place and time. Thought process and content were unremarkable. There were no delusions. He understood the outcome of his behavior, and understood that he had a problem. He had no sleep impairment or hallucinations. He had no obsessive/ritualistic behavior, no panic attacks, no episodes of violence, and no homicidal or suicidal thoughts. Impulse control was good. He was able to maintain minimum personal hygiene. The Veteran reported that he could do inside household chores, but could not do outside chores. Remote, recent and immediate memory were normal. The Veteran reported that he had nightmares every night, and flashbacks four to five times per week. He said he did not like to talk about his traumatic experiences and avoided activities that may rouse recollections. He lost interest in pleasurable activities. He had sleep difficulties, and became easily irritated. He reported difficulty with concentration. The examiner diagnosed PTSD and depressive disorder not otherwise specified (NOS). The GAF was 55. The examiner indicated that the medical records and clinical findings showed that the Veteran has moderate symptoms related to his PTSD. He was able to travel overseas for three weeks last year, indicating he has only mild social functioning impairment. He did not have significant restrictions in personal activities of daily living, caring for self, or communication skills. He did not have marked and sustained decreased concentration. The examiner opined that the medical records do not support the conclusion that the Veteran was unable to secure or follow a gainful occupation as a result of his service-connected psychiatric disorder. The examiner indicated that the Veteran did not have total occupational and social impairment due to PTSD signs and symptoms. He stated that the Veteran's PTSD symptoms resulted in deficiencies in judgment, thinking, family relations, work, and mood. He reiterated that total impairment could not be substantiated at this time. With consideration of the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)), the Board finds that the medical evidence, in conjunction with the Veteran's statements and testimony, reflects that the Veteran's PTSD and major depressive symptoms more nearly approximate the criteria for a higher 70 percent rating throughout the rating period on appeal. See 38 C.F.R. § 4.7. The reports of VA psychiatric examinations performed in 2007, 2009 and 2011 specifically and consistently state that the Veteran has PTSD symptoms resulting in deficiencies in judgment, thinking, family relations, mood, and judgment. This description is commensurate with the specific criteria set forth for a 70 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Codes 9411 and 9434. However, an even higher 100 percent rating is not warranted for service-connected PTSD with major depressive disorder, as the preponderance of the evidence does not show that his service-connected psychiatric disorder produces total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The GAF score on VA examination in February 2011 was 55, indicating moderate PTSD symptoms, which is similar to the GAF scores noted on outpatient treatment in 2010. Although the Veteran retired in 2001, the weight of the evidence, including the Veteran's own statements, reflects that his retirement was not solely due to his service-connected psychiatric disorder, but rather was due to multiple factors, including age, his service-connected back disability, and PTSD and depressive symptoms. He lived in the same house as his wife for many years, primarily in order to be a joint caregiver to his disabled son, had a long-term relationship with his girlfriend, and a good relationship with his daughter, with whom he now lives, thus demonstrating the ability to establish and maintain effective social relationships. Although the Veteran has at times reported suicidal ideation, he has never made a suicidal attempt, and is not shown to be a persistent danger to himself or others. Moreover, the multiple VA examiners specifically opined that the Veteran's PTSD with major depressive disorder does not cause total occupational and social impairment. An examiner, including the VA compensation examiner, takes into consideration the Veteran's subjective complaints, his social and occupational history, and the results of the objective mental status evaluation in determining the overall severity of his PTSD. So this determination is multi-factorial, not just predicated on his lay statements, rather, all of the relevant medical and other evidence, and the Board finds the VA examiners' opinions to be both competent and highly probative. The Board, in reaching these conclusions, has considered the Veteran's statements and testimony, and his representative's arguments. In this regard, this lay testimony is probative, in conjunction with the other evidence of record, particularly the objective medical evidence, in determining the PTSD and depressive symptoms and resulting occupational and social impairment they cause. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In consideration of all the evidence and for the reasons and bases explained above, it is concluded that a 70 percent evaluation for PTSD with major depressive disorder, but no higher, is warranted, throughout the rating period on appeal. The Board has considered the benefit-of-the-doubt rule in making the current decision. 38 U.S.C.A. § 5107(b). Low Back Disability The RO has rated the Veteran's service-connected lower back disability as 40 percent disabling since September 28, 2005, with a temporary total rating for convalescence from September 7, 2007 to November 1, 2007. The RO has characterized this disability as status post left L3-L4 laminectomy and discetomy and nerve root decompression, degenerative arthritis of the thoracolumbar spine. The Veteran filed his current claim for an increased rating for the thoracolumbar spine disability in September 2007, and contends that his back disability is more disabling than currently evaluated. 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. 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. The Board notes that the Veteran's service-connected sciatica of the left 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 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. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. Id. 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. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). 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. Under Diagnostic Code 5243 (intervertebral disc syndrome (IVDS)), ratings are based on either the General Rating Formula for Diseases and Injuries of the Spine or on the basis of incapacitating episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Intervertebral disc syndrome with incapacitating episodes is evaluated as follows: having a total duration of at least 6 weeks in the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); and having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent). 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 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 40 percent disabling. VA outpatient treatment records reflect ongoing treatment, including spinal injections, for complaints of back pain. Records reflect that doctors would not prescribe narcotic pain medication due to the Veteran's prior history of substance dependence, and that the Veteran has taken over-the-counter pain medication for his back pain for years. On VA spine compensation examination in February 2006, the Veteran complained of pain, spasm, weakness, fatigue, limitation of motion, and stiffness. He said his low back pain radiated down his left leg. On examination, he had normal posture, and an antalgic gait. There were no abnormal spinal curvatures. There was no ankylosis of the thoracolumbar spine. On examination, there was moderate pain on motion, and mild tenderness. There was no spasm, atrophy, or guarding. Range of motion of the thoracolumbar spine was as follows: forward flexion to 40 degrees, posterior extension to 20 degrees, lateral flexion and rotation to 25 degrees, all with mild to moderate pain throughout all ranges of motion. On one additional forward flexion there was pain beginning at 30 degrees, and he stopped due to pain. He had moderate pain, weakness and fatigue, but no incoordination. The major functional impact was pain with repetitive use. He had no incapacitating episodes of back pain or bed rest prescribed by a physician in the last 12 months. A magnetic resonance imaging (MRI) scan of the lumbosacral spine showed degenerative lumbar spondylosis. An X-ray study of the lumbosacral spine showed advanced degenerative lumbar spondylosis. The examiner diagnosed chronic mechanical low back strain, with radiculopathy symptoms involving the left lower extremity, likely secondary to the noted MRI findings. On VA examination in December 2006, the Veteran complained of low back pain, stiffness, weakness, and spasm. On examination, range of motion of the thoracolumbar spine was as follows: forward flexion to 40 degrees with pain, extension to 5 degrees with pain, left lateral flexion to 10 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral rotation to 10 degrees with pain, and right lateral rotation to 15 degrees with pain. He had exquisite tenderness to palpation of the lumbar spine. A neurological examination showed intact sensation to light touch in the lower extremities, 5/5 strength in the lower extremities, and deep tendon reflexes were 2+ in the lower extremities. Straight leg raising was negative bilaterally. An X-ray study of the lumbar spine showed severe degenerative disease at L5-S1, L4-5 and moderate degenerative disease at L3-L4 and L2-L3. He had mild retrolisthesis of L2 on L3. Thoracic spine films showed multilevel degenerative disc disease in the thoracic spine with osteopenic kyphosis. VA medical records reflect that on September 9, 2007, the Veteran underwent left L3-L4 laminotomy and discetomy and nerve root decompression. After surgery, his prior neuropathic pain, numbness and tingling had mostly resolved. On VA compensation examination in October 2007, the Veteran complained of daily pain, stiffness, and weakness in his entire spine. He said medication helped only somewhat. Flare-ups occurred with cold weather and sitting, but these pains were constant and he could not do most activities. He said he underwent surgery last month, and this did not improve his back pain at all, which had slowly gotten worse, but he did notice improvement in the left leg radiculopathy symptoms and sensation changes, as these were now gone. Range of motion of the thoracolumbar spine was as follows: forward flexion to 30 degrees, posterior extension could not be performed, lateral flexion to 10 degrees in both directions and lateral rotation to 15 degrees, all done with moderate to severe difficulty and moderate pain. (The Board notes that the ranges of motion listed above were apparently subject to typographical errors, e.g. forward flexion was listed as "300" instead of 30°, lateral flexion of "100" instead of 10°, etc.) Deep tendon reflexes were decreased, and ankle jerks were decreased, and pulses were intact. Sensation in the left lower extremity was decreased to light touch, pinprick and monofilament testing. There was no muscle wasting or muscle loss in the lower extremities. There was weakness of the left upper and lower extremity. The Deluca examination consisted of only one additional exercise, and he could do no more. Pain began at 10 degrees forward flexion and he stopped at 20 degrees and could not do any further exercises. He exhibited moderate to severe pain, severe weakness and fatigue, and mild incoordination. The major functional impact was pain with repetitive use. Moderate to severe painful motion was noted. He denied radiculopathy or distribution of symptoms at this time, as the symptoms of the left lower extremity had abated since his surgery. He still exhibited weakness of the left upper and lower extremities. The diagnosis was mechanical cervical and thoracolumbar strain with recent L3-4 laminotomy and discectomy and nerve root decompression, and sensation changes and weakness of the left arm and leg, likely due to cervical and lumbar disc disease. A subsequent October 2007 VA neurosurgery note reflects that the Veteran was status post left L3-4 discectomy on September 7, 2007. The Veteran reported that he had complete resolution of his left leg pain as well as resolution of his numbness of the left foot. He still complained of some soreness in his back. On examination, he ambulated without difficulty. His incision was well-healed. The Veteran's physician was quite pleased with the result of the low back surgery. An August 2008 X-ray study of the lumbar spine showed mild scoliosis, and advanced degenerative discs and facets at L2, L3-4, L4-5, and L5-S1. There was mild posterior subluxation of L2 on L3. The diagnostic impression was advanced degenerative lumbar spine with scoliosis. In an October 2009 statement, the Veteran said that his spine and low back disability was so bad that he could hardly walk or sleep. He stated that if he did anything it turned black and blue, that he could not work due to his back disability, and that he even had a hard time standing to shave. On VA spine compensation examination in April 2009, the Veteran complained of 10/10 pain in his neck and low back. He said he frequently used a cane for ambulation but was embarrassed to use it in public. The examiner noted that he did not have a cane at the examination. On examination, his posture was stooped, gait was antalgic, there was kyphosis, scoliosis, and lumbar flattening, with no gibbus, list, lumbar lordosis or reverse lordosis. There was cervical spine ankylosis, but no thoracolumbar spine ankylosis. On examination of the thoracolumbar spine, there was no spasm or weakness, but there was guarding, pain with motion, and tenderness. Range of motion of the thoracolumbar spine was as follows: flexion to 50 degrees, extension to 0, left lateral flexion to 10 degrees, right lateral flexion to 15 degrees, and left and right lateral rotation to 10 degrees. There was objective evidence of pain on active range of motion. There was additional limitation after three repetitions of range of motion, specifically, flexion after repetition was limited to 35 degrees by pain. The diagnosis was status post left L3-L4 laminotomy and discectomy with nerve root decompression, and degenerative arthritis of the thoracolumbar spine. The disability had mild to moderate effects on his daily activities, and severe effects on exercise. An August 2009 VA neurosurgery note reflects that the Veteran complained of back pain that limited his activities significantly. After a clinical examination, the physician stated that he had no focal neurological abnormalities. His examination was difficult because he displayed nonorganic pain behavior. A November 2009 magnetic resonance imaging (MRI) scan of the lumbar spine showed dextroscoliosis of the lumbar spine, degenerative lumbar spondylosis greatest at L5-S1 with moderate lateral recess and neural foraminal stenosis, and L1-2 right paracentral disc extrusion. At his September 2010 Board hearing, the Veteran reiterated many of his assertions. He stated that he continued to receive injections for his back pain, and that although they were helpful, he was in serious pain by the time he received his next injection. He stated that the last time, he was brought in by wheelchair. He took over-the-counter pain medication. He said he could not bend over without pain. He testified that he had no muscle spasms since his surgery. On VA spine examination in March 2011, the Veteran complained of persistent achiness, stiffness, tightness and pain into the lumbar region without significant muscle spasms affecting the paralumbar musculature. He described paresthesias radiating into the left lower extremity down to the left foot. He took Excedrin for his pain. Flare-ups could occur weekly precipitated by increased activity, prolonged weightbearing, prolonged sitting, or any attempts at bending, lifting or twisting. Flare-ups could be severe and last from hours up to one or two days. He occasionally used a cane. He said he was unable to walk more than one block. He ambulated with an antalgic gait in a somewhat stooped forward posture. He said his condition was worsening. He reported that he had presented to the emergency room for flare-ups of his back condition and received pain injections; the examiner noted that the medical records did not reveal such treatment in the past year. The examiner indicated that he was unable to elicit a history that suggested that the Veteran had periods of incapacity with prescribed bed rest under a doctor's care in the past year. He indicated that there were no incapacitating episodes of spine disease. On examination, posture was normal, but gait was antalgic and stooped. There was no gibbus, kyphosis, lumbar lordosis, reverse lordosis, list or scoliosis. There was lumbar flattening. The examiner indicated that there was no thoracolumbar spine ankylosis. On examination of the thoracolumbar sacrospinalis, there was no spasm and no atrophy, but there was guarding, pain on motion, tenderness, and weakness. The examiner indicated that the positive findings were severe enough to cause abnormal gait or abnormal spinal contour. Lasegue's sign was positive on the left. There was some tenderness to palpation to the midline of the lumbar and paralumbar regions without noted muscle spasm. It was noted that the Veteran was unable/unwilling to stand erect, and stooped at 25 degrees of forward flexion. Lumbar spine range of motion was as follows: forward flexion from 25 degrees to 70 degrees with some tenderness throughout, bilateral lateral bending from 0 to 15 degrees with some tenderness beginning at 15 degrees, and bilateral rotation from 0 to 15 degrees with some tenderness beginning at 15 degrees. Considering the Deluca criteria, there was increase in pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss of range of motion with repetitive use. The examiner indicated that due to the Veteran's service-connected lumbar spine condition, he had significant inability to perform occupational activities that require bending, lifting, twisting, prolonged standing, prolonged sitting, or walking. He ambulated with an antalgic gait with a stooped forward posture. The examiner opined that it was at least as likely as not that functional limitations resulting from the Veteran's service-connected lumbar spine condition would likely result in his inability to follow or maintain substantially gainful employment. The diagnosis was lumbar spine degenerative disc disease with left lower extremity radiculopathy. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In order to be entitled to a higher 50 percent rating under Diagnostic Code 5242, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. This is simply not shown by the medical evidence. Although the Veteran has significant limitation of motion of the thoracolumbar spine, there is no ankylosis, and thus a rating in excess of 40 percent is not warranted for the orthopedic manifestations of the service-connected thoracolumbar spine disability, throughout the rating period on appeal. The Board notes that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra, 8 Vet. App. 202, 206-07 (1995). In this regard, the record indicates consistent complaints of back pain. The Veteran's representative has contended that since the Veteran was unable to stand fully erect at his most recent VA examination, and had pain throughout his range of motion, he should be considered to have no effective motion in the lumbar spine, citing Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Board finds that this argument is unavailing. Read together, Diagnostic Code 5003 (pertaining to degenerative arthritis) 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. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, when, as here, compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is inapplicable. Moreover, 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. Even considering additional functional limitation due to factors such as pain and fatigue, the overall evidence does not indicate a disability picture comparable to the criteria for the next-higher 50 percent evaluation, during the entire rating period on appeal. Indeed, the objective findings show forward flexion in excess of 30 degrees, with no ankylosis, let alone unfavorable ankylosis, as required for the next higher 50 percent rating. Although some limitation of function has been demonstrated, such is found to be appropriately contemplated in the 40 percent evaluation in effect throughout the rating period on appeal. The Board has also considered whether an increased rating is warranted via application of Diagnostic Code 5243, concerning intervertebral disc syndrome. The evidence here does not establish incapacitating episodes, as defined by Note 1 to Diagnostic Code 5243. As such, Diagnostic Code 5243 cannot serve as a basis for an increased rating on the basis of incapacitating episodes. There are no other relevant code sections for consideration. Next, the Board notes that Note 1 to 38 C.F.R. § 4.71a allows the Veteran to receive a separate compensable rating for adverse neurological symptomatology associated with his service connected back disability, and the Veteran is already in receipt of a separate rating for neurological symptoms of the left lower extremity. The Board finds that as the weight of the objective evidence of record does not show that the Veteran's thoracolumbar spine disability is manifested by any other adverse neurological symptomatology, the claimant is not entitled to any additional separate compensable ratings for any alleged adverse neurological symptomatology caused by his service-connected back disability during the rating period. 38 C.F.R. § 4.71a. In sum, there is no basis for a rating in excess of 40 percent for service-connected thoracolumbar spine disability during the entire rating period on appeal. Therefore, the Board finds that the preponderance of the evidence is against the claim for an increased rating for the thoracolumbar spine disability, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sciatica of the Left Lower Extremity The Veteran filed his current claim for an increased rating for sciatica of the left lower extremity in February 2009. The RO has rated this disability as 10 percent disabling since September 26, 2007, and throughout the rating period on appeal, under Diagnostic Code 8520, pertaining to incomplete paralysis of the sciatic nerve. Under Diagnostic Code 8520, an 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A 40 percent rating is assigned for moderately severe incomplete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis, and a 10 percent rating is assigned for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The Veteran contends that this disability is more disabling than currently evaluated. In a February 2009 statement, he said that after his recent spine surgery he had some relief and feeling back in his leg and foot, but was not able to do much. In October 2009, he said that if he drives for 45 minutes, his left leg goes numb. He reiterated this assertion in subsequent statements and hearing testimony. On VA compensation examination in October 2007, the Veteran said he underwent surgery last month, and this did not improve his back pain at all, which had slowly gotten worse, but he did notice improvement in the left leg radiculopathy symptoms and sensation changes, as these were now gone. On examination, deep tendon reflexes were decreased, ankle jerks were decreased, and pulses were intact. Sensation in the left lower extremity was decreased to light touch, pinprick and monofilament testing. There was no muscle wasting or muscle loss in the lower extremities. There was weakness of the left upper and lower extremity. The examiner opined that sensation changes and weakness of the left arm and leg were likely due to cervical and lumbar disc disease. A subsequent October 2007 VA neurosurgery note reflects that the Veteran was status post left L3-4 discectomy on September 7, 2007. The Veteran reported that he had complete resolution of his left leg pain as well as resolution of his numbness of the left foot. A September 2009 VA anesthesia note reflects that the Veteran complained of low back pain and requested epidural steroid injection for pain relief. On examination, strength was 5/5 in both lower extremities. He walked with a nonantalgic gait. The examiner stated that the Veteran had some radiculopathy into his left leg. An injection was scheduled. A November 2009 VA outpatient treatment record reflects that the Veteran reported that his leg numbness was increasing. An August 2009 VA neurosurgery note reflects that the Veteran complained of back pain, and numbness of the left lower extremity. After a clinical examination, the physician stated that he had no focal neurological abnormalities. On muscle examination of the left lower extremity, the iliopsoas was 4/5, the quadriceps was 4/5, the hamstring was 3+/5, and dorsiflexion and plantar flexion were 4+/5. He displayed nonorganic pain behavior. Reflexes were as follows: knee jerk 2+/1+, ankle jerk trace/trace. Sensation was decreased to light touch in the left medial aspect of the thigh and calf. He was able to walk on his toes but had difficulty walking on his heels due to left foot drop. On neurosurgery examination in November 2009, similar findings were noted, except that knee jerk was 1+/1+. A May 2010 neurology clinic note reflects that the Veteran complained of headaches. On examination, muscle strength and tone in his lower extremities was normal. The examiner noted that the Veteran was significant for many fluctuations and concerns for embellishments in his complaints were noted. In an addendum, another physician stated that the Veteran's headaches were most consistent with chronic overuse of pain medications, which had become a way of life. On VA spine examination in March 2011, the Veteran's reflexes were examined, and knee jerk was 1+ and ankle jerk was 0 on the left and right. Sensation was normal in both lower extremities to vibration, position sense, pain, and light touch. There was no dysesthesia. Motor strength was 4 on the left and 5 (full) on the right. Muscle tone was normal and there was no muscle atrophy. An August 2011 neurology consult reflects that the Veteran complained of weakness in his left foot. On examination, he walked with a stooped posture, dragged his left leg, and Romberg test was negative. On examination, muscle strength was full in the right leg and 4-/5 in the left leg. Muscle tone was normal in the lower extremities, and there was no muscle atrophy. Sensation to touch and vibration was decreased below the ankle. Deep tendon reflexes were 1/4 in the left knee and ankle. There were no pathological reflexes. The pertinent diagnostic assessment was chronic low back ache L3-4 decompressive laminectomy and discectomy. With consideration of the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)), the Board finds that the medical evidence, in conjunction with the Veteran's statements and testimony, reflects that the Veteran's sciatica symptoms of the left lower extremity more nearly approximate the criteria for a higher 20 percent rating for moderate incomplete paralysis of the sciatic nerve throughout the rating period on appeal. See 38 C.F.R. § 4.7. Examination findings show decreased sensations and reflexes, but no evidence of muscle atrophy or strength less than 4/5. Although there was one mention of foot drop in August 2009, this was not shown on subsequent examinations, and more than one examiner has noted some discrepancy between subjective complaints and objective findings. In August 2011, muscle tone was normal in the left lower extremity, and there was no muscle atrophy. Therefore, an increased rating of 20 percent, but no more, is warranted for service-connected sciatica of the left lower extremity. Extraschedular Consideration Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to VA regulation, an extra-schedular rating is warranted if 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). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). According to the holding in Thun v. Peake, 22 Vet. App. 111 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular 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 extra-schedular rating. Here, though, with respect to the first prong of the Thun analysis, the evidence does not show such an exceptional disability picture that the available schedular evaluations for the service-connected PTSD with major depressive disorder, thoracolumbar spine disability, or sciatica of the left lower extremity are inadequate. A comparison between the level of severity and symptomatology of these disabilities with the established criteria found in the Rating Schedule for these disabilities shows the rating criteria reasonably describe and contemplate his disability level and symptomatology. See also 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Further, the Board notes that the Veteran is currently in receipt of a TDIU rating, which has been retroactively awarded effective February 2003. 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 unwarranted. Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER An increased 70 percent rating for PTSD with depressive disorder is granted, subject to the regulations governing the payment of monetary awards. An increased rating in excess of 40 percent for the service-connected thoracolumbar spine disability is denied. An increased rating of 20 percent for sciatica of the left lower extremity is granted, subject to the regulations governing the payment of monetary awards. REMAND Regrettably, the Board finds that additional development is necessary with respect to the claim for a higher rating for service-connected hearing loss prior to appellate review. This claim was previously remanded in January 2011, primarily to obtain recent VA medical records of audiological testing. The Veteran testified at his September 2010 Board hearing that he underwent audiometric testing at the VA Medical Center (VAMC) in Omaha nine weeks ago, and that he also had additional VA audiometric testing shortly prior to that, as well. He related that VA had recently provided him with hearing aids. Although additional VA medical records have been associated with the claims file, these records of treatment and audiological testing are not on file, and must be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c) (2012). See also 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). If the records are unavailable, the RO should indicate this in the claims file. The Board finds that, since the last VA compensation examination for hearing loss was conducted in September 2009, and as the record does not adequately reveal the current status of his bilateral hearing loss, another VA audiological examination for compensation purposes is needed to reassess the severity of his bilateral hearing loss, with a description by the examiner of the effects of this disability on the Veteran's day-to-day functioning. See 38 U.S.C.A. § 5103A; Martinak v. Nicholson, 21 Vet. App. 447 (2007); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). 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 hearing loss since September 2009. With his authorization, obtain all identified records that are not already on file, and associate them with the claims file for consideration in this appeal. The Veteran must be appropriately notified if VA is unable to obtain any identified records. See 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule a VA audiological examination for compensation purposes to reassess the severity of his bilateral hearing loss disability. All necessary diagnostic testing and evaluation should be performed to determine the current severity of the hearing loss in each ear. The claims file, including a complete copy of this remand, must be provided to and reviewed by the examiner. *In particular, the examiner is specifically requested to fully describe the functional effects caused by the Veteran's hearing loss disability - including on his occupational functioning and in his daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 and Martinak, 21 Vet. App. at 455-56. The Court held in Martinak that, in addition to dictating objective test results, an evaluating VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The examiner must discuss the underlying medical rationale for all opinions provided, if necessary, citing to specific evidence in the file. The Veteran is hereby advised that failure to report for this examination, without good cause, may result in the summary denial of his claim for an increased rating. 38 C.F.R. § 3.655(b). 3. Then, readjudicate the claim for an increased rating for bilateral hearing loss in light of all additional evidence. If an increased rating is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs