Citation Nr: 1312375	
Decision Date: 04/15/13    Archive Date: 05/02/13

DOCKET NO.  08-09 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial compensable rating for an anxiety disorder prior to November 2, 2007.

2.  Entitlement to a rating in excess of 10 percent for an anxiety disorder from November 2, 2007, to June 25, 2010.

3.  Entitlement to a rating in excess of 50 percent for an anxiety disorder since June 26, 2010.

4.  Entitlement to an initial compensable rating for residuals of a status post biceps tendon rupture of the left upper extremity involving Muscle Group V prior to May 21, 2010.

5.  Entitlement to a rating in excess of 10 percent for residuals of a status post biceps tendon rupture of the left upper extremity involving Muscle Group V since May 21, 2010.

6.  Entitlement to an initial compensable rating for left gamekeeper's thumb prior to May 21, 2010.

7.  Entitlement to a rating in excess of 10 percent for left gamekeeper's thumb since May 21, 2010.

8.  Entitlement to an initial compensable rating for residuals of a status post sesamoid fracture of the right foot prior to May 21, 2010.

9.  Entitlement to a rating in excess of 10 percent for residuals of a status post sesamoid fracture of the right foot since May 21, 2010.

10.  Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine.

11.  Entitlement to an initial rating in excess of 10 percent for degenerative disc disease with radiculopathy secondary to S1 nerve encroachment of the lumbosacral spine.

12.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected disabilities.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1985 to August 1988 and from January 1989 to August 2006.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  Jurisdiction over the case was subsequently transferred to the RO in Waco, Texas.

In November 2006, the RO granted service connection for the claims on appeal and assigned noncompensable (0 percent) ratings, effective September 1, 2006, for the left thumb, an anxiety disorder, the right foot, and the left biceps tendon.  The RO also assigned a separate 10 percent rating, effective September 1, 2006, for cervical and lumbar spine disabilities.  

In September 2007, the RO increased the noncompensable rating for an anxiety disorder to 10 percent disabling, effective November 2, 2007.  In September 2011, the RO increased the 10 percent rating for anxiety disorder to 50 percent, effective June 26, 2010, as well as increased the noncompensable ratings for the left thumb, right foot, and the left biceps tendon to 10 percent, effective May 21, 2010.  The Veteran was advised of the September 2007 and September 2011 rating decisions, but did not express agreement with the decision or withdraw the appeal.  

In AB v. Brown, 6 Vet. App. 35 (1993), the Veterans Claims Court held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded.  Because the assigned ratings are not the maximum benefits available for these service-connected disabilities, these appeals continue for the respective rating periods as listed on the title page.  

In an April 2010 decision, the Board remanded the claims for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.  The Board has not only reviewed the Veteran's physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence.  

The issue of a TDIU 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 November 2, 2007, an anxiety disorder more closely approximated a manifestation of a mental condition that has been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning.  

2.  From November 2, 2007, to June 25, 2010, an anxiety disorder more closely approximated a manifestation of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to psychiatric symptomatology.

3.  Since June 26, 2010, an anxiety disorder more closely approximates a manifestation of occupational and social impairment with reduced reliability and productivity due to psychiatric symptomatology.  

4.  For the entire initial rating period on appeal, the left biceps tendon disability more closely approximates a manifestation of moderate muscle disability with atrophy, distal biceps deformity, tingling, normal muscle strength, and no scars.

5.  For the entire initial rating period on appeal, the left thumb disability more closely approximates a manifestation of no gap between thumb and the fingers, full range of motion, sensitivity, tenderness to palpation, pain upon resistance, painful motion, and pain following repetitive motion.    

6.  Prior to May 21, 2010, the right foot disability more closely approximated a manifestation of a less than moderate foot injury with tenderness to palpation, full range of motion without pain.

7.  Since May 21, 2010, the right foot disability more closely approximates a manifestation of a moderate foot injury.  

8.  For the entire initial rating period on appeal, the cervical spine disability more closely approximates a manifestation of tenderness not resulting in an abnormal gait or spinal contour, limitation of motion, and pain following repetitive motion.     

9.  For the entire initial rating period on appeal, the lumbar spine disability more closely approximates a manifestation of tenderness not resulting in an abnormal gait or spinal contour, full range of motion, painful motion, and pain following repetitive motion.      


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for an anxiety disorder prior to November 2, 2007, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413 (2012). 

2.  The criteria for a 30 percent rating, but no more, for an anxiety disorder from November 2, 2007, to June 25, 2010, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, DC 9413 (2012). 

3.  The criteria for a rating in excess of 50 percent for an anxiety disorder since June 26, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, DC 9413 (2012). 

4.  The criteria for a 10 percent rating, but no more, for residuals of a status post biceps tendon rupture of the left upper extremity involving Muscle Group V prior to May 21, 2010, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.73, DC 5305 (2012). 

5.  The criteria for a rating in excess of 10 percent for residuals of a status post biceps tendon rupture of the left upper extremity involving Muscle Group V since May 21, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.73, DC 5305 (2012).  

6.  The criteria for a 10 percent rating, but no more, for left gamekeeper's thumb prior to May 21, 2010, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5228 (2012). 

7.  The criteria for a rating in excess of 10 percent for left gamekeeper's thumb since May 21, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5228 (2012).  

8.  The criteria for an initial compensable rating for residuals of a status post sesamoid fracture of the right foot prior to May 21, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5284 (2012). 

9.  The criteria for a rating in excess of 10 percent for residuals of a status post sesamoid fracture of the right foot since May 21, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5284 (2012). 

10.  The criteria to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5242 (2012). 

11.  The criteria for an initial rating in excess of 10 percent for degenerative disc disease with radiculopathy secondary to S1 nerve encroachment of the lumbosacral spine have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5242 (2012).    


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity.  See U.S.C.A. § 1155 (West 2002).  Separate diagnostic codes identify the various disabilities.  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999). 

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.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  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 or 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. 

The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  38 C.F.R. § 4.59.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Id.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal.

An Anxiety Disorder

Pursuant to the rating criteria for mental disorders, an anxiety disorder has been rated as noncompensable (0 percent) effective September 1, 2006, at 10 percent from November 2, 2007, and at 50 percent effective June 26, 2010, under DC 9413.  

A noncompensable rating is warranted for a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.  38 C.F.R. § 4.130.  A 10 percent rating is assigned under the general rating formula for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

A 30 percent rating is assigned for occupational and social impairment with evidence of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events).

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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted 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 work like 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; 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.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126 (2012).  The rating agency shall assign an rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. The rating agency shall also consider the extent of social impairment, but not assign an rating solely on the basis of social impairment.  

Moreover, the use of the term "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 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).  The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  

The Global Assessment of Functioning (GAF) Scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the DSM-IV).  A score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995).  

A score of 51 to 60 is defined as indicating 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). A score of 61 to 70 is defined as 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, has some meaningful interpersonal relationships. 

Rating Prior to November 2, 2007

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that an initial rating of 10 percent, but no higher, is warranted prior to November 2, 2007, for an anxiety disorder.

As discussed below, the evidence of record indicates that the service-connected disability more closely approximated a manifestation of occupational and social impairment due to mild psychiatric symptoms and such symptoms controlled by continuous medication.  

In May 2006, the Veteran underwent a VA psychiatric examination and denied any problems with the quality of his peer relationships and social adjustment.  His noted symptomatology included light-headed spells, chest pains, bothered by loud noises, decreased concentration, and avoidance of stimuli.  Upon clinical evaluation, he exhibited good eye contact, a neat and clean appearance, was orientation to person, place, and time, intact memory, reportedly good sleep, appropriate affect, good judgment, but not a great deal of insight.  There was no evidence of panic attacks, psychosis, anxiety, impulse control problems, or gross cognitive disturbance, and the diagnosis was anxiety disorder not otherwise specified (NOS).

Review of the VA outpatient treatment records show that upon a March 2007 mental health clinic initial assessment, the Veteran exhibited behavior of a young child being scolded, and reported being unemployed and went to school sometimes.  Examination revealed that he was alert, attentive, cooperative, somewhat agitated, well groomed, soft volume, immature vocabulary, displayed a nervous and pressured affect, fair judgment, poor insight, and somewhat disturbed memory.  There were no findings of abnormal perceptual disturbance, thought processes, or thought content, and he denied suicidal ideations.  

A GAF score of 65 was assigned and he was referred to a psychiatrist for a medication consultation.  A few hours later, the Veteran underwent a VA outpatient psychological assessment at which he reported being employed in construction and attending classes for carpentry, impairment in work functioning, and difficulty finding employment.  Clinical evaluation revealed appropriate appearance/dress, alert and oriented, depressed mood, logical and goal directed thought process, and no problems with perception.  

In April 2007, the Veteran reported guilt, intermittent insomnia, the inability to concentrate, poor appetite, general anhedonia, a memory of seeing wounded and dead Iraqi children, and bothered by little noises.  He denied suicidal ideation or hallucinations.  The treating physician noted that the Veteran was dressed in casual clothing, guarded, possibly paranoid with occasional eye contact, displayed a depressed mood, and not psychotic or suicidal.  He was prescribed sleep medication.  

At an August 2007 treatment session, the Veteran reiterated the symptomatology reported in April 2007, as well as described a feeling like "floating" from time to time.  The same treating physician noted that the Veteran appeared guarded, had a depressed mood, was not psychotic, and his memory was intact.  His sleep medication was continued and he was prescribed additional medication for paranoia and flashbacks.

At another August 2007 treatment session with a social worker, the Veteran requested anger and stress management group therapy, reported his sleep had gotten worse, an inability to trust others, increased irritability and anger issues, and thoughts about choking people.  He denied actually choking anyone since service, suicidal ideations, and auditory and visual hallucinations.

As noted above, the May 2006 VA examiner assigned a GAF score of 63 and a VA outpatient treating physician assigned a GAF score of 65 in March 2007.  These assigned GAF scores are found to be consistent with the demonstrated symptomatology of record prior to November 2, 2007.  GAF scores from 61 to 70 are indicative of mild symptoms, and when considering the evidence as a whole, do not justify assignment of a higher rating in excess of the currently assigned 10 percent for any period during this stage on appeal.

Based on the above evidence, including the GAF scores and on-going psychiatric complaints, as well as the need for medication, the Board finds that a 10 percent rating, but no higher, is warranted prior to November 2, 2007, for an anxiety disorder.

Rating from November 2, 2007, to June 25, 2010

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a 30 percent rating, but no higher, is warranted from November 2, 2007, to June 25, 2010.

As discussed below, the evidence of record indicates the service-connected disability more closely approximates a manifestation of occupational and social impairment with evidence of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to psychiatric symptomatology.  

Review of the VA outpatient treatment records show that in November 2007, the Veteran participated in an anger management group.  He indicated that he had a good relationship with his wife, and reported that anger triggers for him were lazy people and rude people.  In November 2008, he reported the inability to control his thinking.  In the past, has had intrusive thoughts several times per week as well as mostly every night regarding the Iraqi children, he "blacked out" two weeks prior when his supervisors told him he needed to go home because he had been talking about a convoy and that he was sweating and crying profusely.  

Upon clinical evaluation, the physician noted the Veteran was dressed and groomed neatly, avoided eye contact for majority of the session, on the verge of tears for a great deal of the session but never cried openly, forthcoming with information, displayed a lack of insight regarding his symptoms and their effect on him, denied suicidal and homicidal ideation but did express wishing that at times "lazy and stupid people would just somehow go away."   

In December 2008, the Veteran reported he continued to have irritability, poor sleep, nightmares, flashbacks, and depressive symptoms, which had worsened since he stopped his medication.  A February 2009 record noted that he continued to have regular nightmares, irritability, and difficulty being around people.  He did not have any contact with friends or family, went to school at night, had difficulty with his supervisor at work, and had thoughts of wanting to punch this person but has no intention of harming him.  

Objectively, the Veteran was neatly dressed, cooperative, displayed good eye contact, an irritable mood, depressed affect, normal speech, no motor abnormalities, negative thought content for any suicidal ideation or psychotic symptoms, positive homicidal ideation but no intention of harming his supervisor, limited insight, and fair judgment.

In April 2009, the Veteran reiterated his complaints of sleep impairment and thoughts of punching people without intent.  He reportedly got along well with his three children.  In May 2009, he reported he could not trust anyone and believed the people he worked with were trying to get rid of him by treating him unfairly.  He reported that he was working at Fort Hood and aside from the way he was treated by his supervisors, the working conditions were better than he was used to.

A November 2007 VA psychiatric examination report documented with regards to current occupational and social functioning, the Veteran remained isolative and had had three jobs since separation from service.  He reported several nonspecific somatic symptoms as the reason why he was unable to hold a job and was vague in reporting some of his symptoms.  The VA examiner noted that the Veteran's social functioning appeared to be limited and he had adjusted rather poorly.  

His leisure activities were limited to yard work, he had very few friends, did not engage in social outings, and visited shopping places only in the evening when it was least populated.  He had not been consistently employed due to several physical limitations but also due to paranoid ideations.  The Veteran reported persistent nightmares occurring on a daily basis related to combat experiences and symptoms suggestive of dissociative flashbacks and intrusive memories, as well as irritability, poor concentration, increased startle, and hypervigilance. 

Upon clinical evaluation, the Veteran presented as well developed, well nourished, well groomed, appropriately dressed, and hypervigilant, almost paranoid.  There were no findings of impairment of thought process or communication, delusions, hallucinations, disorientation to person, place, and time, memory loss or impairment, obsessive or ritualistic behavior that interfere with routine activities, appropriate speech, or impaired impulse control.  The VA examiner concluded that "[a]lthough no PTSD evaluation was requested, most of [the Veteran's] symptomatology are readily accounted by PTSD symptoms; this is an evolving psychopathology (from anxiety disorder not otherwise specified (NOS) to PTSD).  This pattern has been described in clinical setting." 

The Board acknowledges that the November 2007 VA examiner also concluded the appropriate assessment of the Veteran, from the listed choices was consistent with the schedular rating criteria for 70 percent.  However, the Board notes that an examiner's classification of the level of psychiatric impairment, by words or a GAF score is a factor for consideration and not determinative of the percentage VA rating to be assigned.  

The November 2007 VA examiner assigned a GAF score of 55.  VA outpatient treatment records show the Veteran was assigned GAF scores of 60 in December 2008 and February 2009, and of 55 in April 2009, May 2009, and June 2009.  These assigned GAF scores are found to be consistent with the demonstrated symptomatology of record from November 2, 2007, to June 25, 2010.  GAF scores from 51 to 60 are indicative of moderate symptoms.

Based on the above evidence, including lower GAF scores, persistent psychiatric symptoms, difficulty at work but a fairly stable home life, the Board finds that a 30 percent rating, but no higher, is warranted from November 2, 2007, to June 25, 2010.

Rating Since June 26, 2010

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a rating in excess of 50 percent since June 26, 2010.

As discussed below, the evidence of record indicates the service-connected disability more nearly approximates a manifestation of occupational and social impairment with reduced reliability and productivity due to psychiatric symptomatology.  

In June 2010, the Veteran underwent a VA psychiatric examination.  He reported that he stayed in his own room in the house because his wife said he was kind of strange, he kept the road clean around the house and cut the grass, denied church membership and friendships, and that his memory was poor and he lost track of where he was going when drove.  He had passive suicidal thoughts without intent or plan, homicidal fantasies relating to people who have offended him, insomnia, and feelings of diminished worth due to loss of work and poor concentration.  He denied panic attacks, depressed mood, or loss of interest in pleasurable activities.

The examiner noted that the Veteran was currently unemployed.  He had worked as a supply person for a military contractor for just over 2 years and quit because he felt that he was being harassed as his immediate supervisor was stealing things from the company and trying to blame him.  He reported he was a welder for about 6 months after that and quit due to accidents, from which the "last one [he] fell off the scaffold" and his boss allegedly told him "that [he] was a liability or something."  He had quit his last job in January 2010.  

Upon clinical evaluation, objective findings revealed a blunted affect, a lot of time spent scanning the environment, poor memory for neutral events, problems comprehending questions, persecutory thoughts which may well be of delusional degree, not inappropriate behavior, good ability to maintain minimal personal hygiene and other basic activities, orientation to person, place, and time, some problems with construction, and frequent long pauses but rate and rhythm were intact.  The Veteran still has episodes of light headedness and described out-of-body experiences where he felt like he was floating.  

These episodes started after his episode of dehydration and some combination of these had cost him his job as a welder.  It was noted that the Veteran's story had changed dramatically between mental health Compensation and Pension (C&P) evaluations.  The VA examiner opined it is less likely than not that visual or auditory disturbances were related to an anxiety disorder as they had immediate onset after two cerebral insults and reportedly are separate from, not triggered by, present anxiety symptoms.  It was noted that occupational and social functioning was seriously impaired, more so by cognitive problems than by emotional ones, and there was reduced reliability and productivity due to mental disorder signs and symptoms.

Most recently, the Veteran underwent an additional VA psychiatric examination in June 2011.  Upon clinical evaluation, there were findings of mildly impaired recent memory and immediate memory, and he was not capable of managing financial affairs.  He had fair impulse control, presence of homicidal thoughts, no panic attacks, no obsessive/ritualistic behavior, no presence of suicidal thoughts, unremarkable thought process and content, orientation to person, time, and place, intact attention, mood was anxious, agitated, and fearful, nervous affect, suspicious attitude, unremarkable speech, clean appearance.  The VA examiner concluded that there was reduced reliability and productivity due to mental disorder symptoms with sufficient rationale.

The June 2010 and July 2011 VA examiners each assigned a GAF score of 50.  This assigned GAF score is found to be consistent with the demonstrated symptomatology of record since June 26, 2010.  GAF scores from 49 to 50 are indicative of serious symptoms, but when considering the evidence as a whole, do not justify assignment of a rating in excess of the currently-assigned 50 percent for any period during this stage on appeal.

The Board notes there are no VA outpatient treatment records pertinent to this claim since June 26, 2010, of record.  Therefore, based on the above evidence, including the GAF scores, poor memory, and impaired occupational and social functioning, the Board finds that a rating in excess of 50 percent is not warranted since June 26, 2010. 

With respect to all the periods on appeal, the Board is aware that the symptoms listed under the next-higher ratings are essentially examples of the type and degree of symptoms for those ratings, and that the Veteran need not demonstrate those exact symptoms to warrant a higher initial rating.  See Mauerhan, 16 Vet. App. at 436.  In this case, the Board has considered the next higher rating for each period but finds that the periods are rated appropriately.

Biceps Tendon Rupture of the Left Upper Extremity

The left biceps tendon disability is rated as noncompensable (0 percent) prior to May 21, 2010, and at 10 percent disabling since May 21, 2010, under DC 5305.  At the April 2006, November 2007, and May 2010 VA examinations, the Veteran reported he was right-hand dominant; hence the left arm represents the nondominant upper extremity.   

DC 5305 provides ratings for a disability of Muscle Group V.  The function of these muscles are as follows: elbow supination (1) (long head of biceps is stabilizer of shoulder joint); flexion of elbow (1, 2, 3).  The muscle group includes flexor muscles of elbow: (1) biceps; (2) brachialis; (3) brachioradialis.  See 38 C.F.R. § 4.73, DC 5305.

A "slight" injury warrants a noncompensable rating.  A slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability.  Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 

A "moderate" injury warrants a 10 percent rating.  A moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  

Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.

A "moderately severe" injury of the non-dominant arm warrants a 20 percent rating.  A moderately severe muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements.  

Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment.

A "severe" injury of the non-dominant arm warrants a 30 percent rating.  A severe muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements.  

Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side.  

If present, the following are also signs of 'severe' muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile.  

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a rating of 10 percent, but no higher, is warranted for residuals of a biceps tendon rupture for the entire time on appeal.  As discussed below, the evidence of record indicates the service-connected disability more closely approximates a manifestation of moderate muscle disability with atrophy, distal biceps deformity, tingling, normal muscle strength, and no scars.

In April 2006, the Veteran underwent a VA general medical examination.  Physical rating of the left biceps muscle revealed atrophy accompanied by an obvious distal biceps deformity, normal muscle strength, and no tenderness to palpation or pain on motion.  He exhibited full flexion of the elbow to 145 degrees, limited supination to 85 degrees, and limited pronation to 80 degrees.  He was diagnosed with chronic residuals of left biceps tendon rupture.

August 2007 VA outpatient treatment records document the Veteran's complaint of intermittent reddish purple discoloration and pain in the left forearm and arm since the biceps tear in service.  A September 2007 VA outpatient treatment record also noted the Veteran's complaint of a painful left elbow for the past year and a half.  The pain was described as a throbbing sensation in the left arm that is relieved with direct pressure just underneath the biceps muscles and with naproxen.  Results from clinical evaluation revealed good strength at the biceps tendon, good pronation and supination with good strength, and x-ray results were unremarkable.    

In November 2007, the Veteran underwent a VA muscle examination.  With regard to whether there are periods of flare-up of residuals of muscle injury, the examiner documented that the left biceps became fatigued after holding heavy objects long and no biceps pain but throbbing sensation, tingling and shooting pains at the level of the brachial nerve/vascular tunnel forearm and hand.  It was further noted that there was "[n]o injury to other structure from the rupture of the tendon in 2004, and . . . . [there is] no effect on occupation or usually daily activities, [and the Veteran] underwent orthopedic exam[ination] recently [which showed] left biceps function normal."  

Clinical evaluation revealed normal muscle strength and residuals of ruptured tendon leaving the biceps muscle retracted proximally with no tenderness or swelling.  There were no findings of muscle contraction felt and affected joint function, and entry and exit wound scars was non applicable.  The Veteran was diagnosed with residuals of left biceps tendon rupture.  The examiner also explained that the Veteran's complaint of dropping things from the left hand related to neuropathy rather than the biceps.    

A December 2007 VA outpatient treatment record noted the Veteran's complaint of pain the left arm, use of a brace for biceps tears, and no etiology was found or discoloration of the Veteran's arm by orthopedics.

At the May 2010 VA muscle examination, symptoms included tingling but not pain, decreased coordination, increased  fatigability, weakness, uncertainty of movement, and flare-ups of muscle injury residuals.  Clinical evaluation revealed normal muscle function, in terms of comfort, endurance, and strength sufficient to perform activities of daily living, as well as residuals of tendon damage characterized as biceps muscle retracted proximally.  

There were no findings of intermuscular scarring, scars, residuals of nerve damage, residuals of bone damage, muscle herniation, loss of deep fascia or muscle substance, or limitation of any joint motion by muscle disease or injury.  The diagnosis of biceps tendon rupture of the left upper extremity was affirmed.  The examiner concluded there are no effects of the problem on usual daily activities and pain impacts occupational activities.   

Based on the above evidence, the Board finds that the Veteran's biceps tendon rupture has been manifested by evidence of atrophy, deformity, normal muscle strength, and normal muscle movement essentially for the entire time on appeal.  As such, a 10 percent rating is warranted.  

A higher rating is not warranted because a moderately severe injury has not been shown.  Specifically, the evidence does not show prolonged infection, intramuscular scarring, prolonged hospitalization, loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side, or diminished strength and endurance.

Next, the Board has considered whether an increased rating in excess of the currently-assigned 10 percent is warranted under for limitation of motion for the arm under DC 5201, limitation of flexion of the forearm under DC 5206, or limitation of extension of the forearm under DC 5207.  

After a full review of the record, including the present level of disability and current lay and medical findings for the entire initial rating period, the Board concludes that an initial rating in excess of 10 percent for the service-connected residuals, status post biceps tendon rupture of the left upper extremity, involving Muscle Group V, is not warranted under DC 5201, 5206, or 5207 as review of the musculoskeletal system did not show a manifestation of limited range of motion for the left arm and/or elbow to more closely approximate the schedular criteria for a higher rating.

Moreover, the Board finds that the evidentiary record, to include the Veteran's reported symptomatology, does not demonstrate additional functional impairment due to the residuals, status post biceps tendon rupture of the left upper extremity as discussed above.  See 38 C.F.R. § 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. at 205.

Left Gamekeeper's Thumb

Pursuant to the rating criteria for limitation of motion of individual digits of the hand, the Veteran's left thumb disability is rated as noncompensable (0 percent) prior to May 21, 2010, and at 10 percent disabling since May 21, 2010, under DC 5228.  Again, he is right-hand dominant; hence the left hand represents the nondominant upper extremity.   

A noncompensable evaluation is assigned for limitation of motion of the thumb with a gap of less than 1 in. (2.5cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  A 10 percent disability is warranted for limitation of motion of the thumb with a gap of one or two inches (2.5cm. to 5.1cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  A 20 percent rating, the highest available is assigned for limitation of motion of the thumb with a gap of more than 2 in. (5.1cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a rating of 10 percent, but no higher, is warranted for a left thumb disability for the entire time on appeal.  As discussed below, the evidence of record indicates that the service-connected disability more closely approximated a manifestation of no gap between thumb and the fingers, full range of motion, sensitivity, tenderness to palpation, pain upon resistance, painful motion, and pain following repetitive motion.    

Following the clinical evaluation at the April 2006 VA general medical examination, the examiner concluded there is a prominence at the first metacarpophalangeal (MCP) joint, dorsal aspect accompanied by tenderness to palpation, no pain on motion, and the Veteran was able to make a full closed fist.  

August 2007 VA outpatient treatment records document the Veteran's complaint of left hand cramping and chronic pain for years in the left wrist which radiates to the left thumb and index finger, which has gotten worse over the last two months.  The Veteran was assessed with possible carpal tunnel syndrome, prescribed pain medication, and instructed to return in six months or earlier for any problems. 

At the November 2007 VA examination for hand, thumb, and fingers, the Veteran reported having sensitivity to strong pressure on the proximal phalanx of the left thumb when packing up heavy objects and no additional limitation of motion or functional impairment during a flare-up.  Upon clinical evaluation, he exhibited normal mobility and range of motion of all fingers of the left hand, normal opposition to the tip of the thumb, all finger tips reach the proximal transverse crease of the palm, and tip of the thumb reached the palm of the hand.  

There was normal hand grip and anatomy, moderate tenderness over lateral aspect of the proximal phalanx of the left thumb, and moderate pain upon the thumb pulling or pushing against resistance.  Findings did not show swelling, instability, or abnormal movement.

At the May 2010 VA examination for hand, thumb, and fingers, the Veteran exhibited objective evidence of pain upon active range of motion and following repetitive motion.  The examiner also noted there was no additional limitation of motion, amputation of a digit or part of a digit, ankylosis of one or more digits, deformity of one or more digits, decreased strength for pushing, pulling, or twisting, or decreased dexterity for twisting, probing, writing, touching, and expression.  Finally, x-ray results revealed no acute fracture or dislocation, sclerotic change involving the lateral aspect of the left first proximal phalanx, no evidence for narrowing of the MCP joint or interphalangeal joint and mild osteophyte formation at the base of the left first distal phalanx.  

Based on the evidence above, including essentially normal range of motion and the ability to make a full fist but pain on movement, the Board finds that a 10 percent rating, but no more, is warranted for the entire time on appeal.  A higher rating is not warranted because the limitation of motion, either actual or functionally, does not reflect a gap of more than 2 in. (5.1cm.) between the thumb pad and the fingers.

Right Foot Disability

The Veteran's right foot disability is rated as noncompensable (0 percent) prior to May 21, 2010 and at 10 percent disabling since May 21, 2010, under DC 5284.  A 10 percent rating is assigned for moderate foot injuries, a 20 percent rating is warranted for moderately severe foot injuries, and 30 percent rating is assigned for severe foot injuries.

Rating Prior to May 21, 2010

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a preponderance of the evidence is against the Veteran's appeal for an initial compensable rating prior to May 21, 2010, for a right foot disability.

As discussed below, the evidence of record indicates the service-connected disability more nearly approximated a manifestation of a less than moderate foot injury with tenderness to palpation, full range of motion without pain.  

At the April 2006 VA general medical examination, the Veteran exhibited tenderness to palpation over the plantar aspect of the first metatarsal head, dorsiflexion to 20 degrees, plantar flexion to 45 degrees, inversion to 30 degrees, eversion to 20 degrees, and no pain on motion.   

An August 2007 VA outpatient treatment record shows the Veteran's complaint of feet burning, numbness in the right foot at times, and chronic sharp pain on the lateral side of the right foot.  He was referred for an orthopedics follow up and prescribed pain medication was increased to help the pain.

At the November 2007 VA feet examination, the Veteran reported pain upon carrying heavy objects, stepping wrong, hitting something with that area, or walking fast.  No additional limitation of motion or functional impairment during a flare-up was reported.  Clinical findings showed no joint involvement, no change in range of motion from the April 2006 results, or flat feet.  

As to the sesamoid bone area, there was no tenderness or redness, but callus formation was noted which was related to the sesamoid fracture.  The Veteran showed bilateral hallux valgus on the right to 25 degrees and on the left to 10 degrees as well as a normal gait.  He walked on heels and on toes with no pain or tenderness and repetitive foot rocking did not decrease its function.  

Most recently, at a February 2009 VA outpatient treatment session, the Veteran complaint of feet pain and requested special shoes, and an October 2008 record noted that he was ambulatory with a steady gait.  

Based on the evidence which shows normal range of motion and no functional impairment or other symptoms consistent with a moderate foot disability, the Board finds that a higher rating is not warranted for the period prior to May 21, 2010.

Rating Since May 21, 2010

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a preponderance of the evidence is against the Veteran's appeal for an initial compensable rating since May 21, 2010, for residuals, status post sesamoid fracture of the right foot.

As discussed below, the evidence of record indicates the service-connected disability more nearly approximates a manifestation of a moderate foot injury, but no more.  Specifically, the evidence of record during this period includes a May 2010 VA examination report.  At that time, the examiner reported no evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, skin or vascular foot abnormality, malunion or nonunion of the tarsal or metatarsal bones, or muscle atrophy.  

X-ray results showed prominent posterior and small plantar calcaneal spur, mild degenerative remodeling change left midfoot, extra 2 millimeter calcification soft tissues adjacent to the bare area medial aspect distal epiphysis proximal phalanx great toe, and osseous structures seen otherwise appeared intact.   

The Board notes there are no VA outpatient treatment records pertinent to this claim since May 21, 2010, of record.  

Based on this evidence, which shows normal range of motion and no functional impairment or other symptoms consistent with a moderately severe foot disability, the Board finds that a higher rating is not warranted for the period since May 21, 2010.

Cervical and Lumbar Spine Disabilities 

Pursuant to the rating criteria for the spine, the Veteran's cervical spine disability and lumbar spine disabilities are each rated at 10 percent for tenderness to palpation not resulting in an abnormal gait or spinal contour, effective September 1, 2006, under DCs 5003 and 5242.  

Degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved.  Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint (including the ankle and the knee) or group of minor joints affected by limitation of motion to be combined not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

In the absence of limitation of motion a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations.  

Cervical Spine Disability

Under DC 5242, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; localized tenderness not resulting in abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of its height.  

A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine.  

A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation.  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.  Id. at Note (2).

After a full review of the record, including the present level of disability and current lay and medical findings for the entire initial rating period on appeal, the Board concludes that an initial rating in excess of 10 percent for a cervical spine disability is not warranted under DC 5242.  The evidence of record shows that the cervical spine disability more nearly approximates a manifestation of tenderness not resulting in an abnormal spinal contour, limitation of motion, and pain following repetitive motion for the currently assigned 10 percent rating.  

Specifically, at the April 2006 VA general medical examination, the Veteran exhibited full range of motion and no change was detected during repetitive movement.  The examiner noted there was tenderness to palpation throughout the cervical vertebrae and accompanying spinal accessory muscles bilaterally, but there was no overt deformity.  Magnetic Resonance Imaging (MRI) test results revealed mild diffuse cervical spondylosis and uncovertebral and facet joint degenerative joint disease, no listhesis, probably mild disk degeneration with narrowing at the C5-6 level but not readily evident at any other level, and no central spinal stenosis, foraminal stenosis, or any other cause of neural compression at any level at this time.  The diagnosis was degenerative disc disease of the cervical spine. 

At the November 2007 VA spine examination, the Veteran exhibited full range of motion and the examiner noted "normal" with regard to any postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of cervical spine.  MRI results affirmed the diagnosis of degenerative disc disease of the cervical spine.

Pursuant to the April 2010 remand instructions, the Veteran underwent an additional VA spine examination in May 2010.  He exhibited full flexion, extension, and right lateral rotation, and limited motion for bilateral flexion and left lateral rotation.  The examiner noted inspection of the spine showed normal posture, head position, and gait, as well as symmetry in appearance.  There were no findings of reverse lordosis, kyphosis, scoliosis, or ankylosis.  Moreover, the examiner noted that objective abnormalities of the cervical spine, to include tenderness, were not severe enough to be responsible for abnormal gait or abnormal spinal contour. VA outpatient treatment records also show the Veteran's complaints of neck pain in August 2007 and October 2008.

Given the absence of limitation of motion, muscle spasm, guarding, or an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, as these were specifically found to be absent, the Board finds that a higher rating is not warranted.

Lumbar Spine Disability

The rating criteria provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  Again, these ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  See 38 C.F.R. § 4.71a, DC 5242.  

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  38 C.F.R. § 4.71a, Note (2).  The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation.  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.  Id. at Note (2).

After a full review of the record, including the present level of disability and current lay and medical findings for the entire initial rating period on appeal, the Board concludes that an initial rating in excess of 10 percent for a lumbar spine disability is not warranted under DC 5242.  The evidence of record shows that the lumbar spine disability more nearly approximates a manifestation of tenderness not resulting in an abnormal gait or spinal contour, full range of motion, painful motion, and pain following repetitive motion consistent with the currently-assigned 10 percent rating.  

Specifically, at the April 2006 VA general medical examination, the Veteran exhibited full range of motion and no change was detected during repetitive movement.  The examiner noted there was tenderness to palpation over the lumbar vertebrae and paravertebral muscles bilaterally, but no abnormality of posture, gait, or other overt deformities.  

MRI results revealed mild desiccation and loss of disc height at L2-3, L3-4, and L4-5, moderate degenerative disc disease at L5-S1 with disc protrusion and osteophyte complex effacing the thecal sac and left S1 nerve root and mildly encroaching the left L5 neural foramen, and right foraminal disc protrusions at L3-4 and greater at L4-5.  The diagnosis was degenerative disc disease of the lumbar spine, radiculopathy secondary to S1 nerve encroachment.   

At a March 2007 VA outpatient treatment session, the Veteran requested a new brace for his back and was assessed with chronic low back pain, nonspecific.

At the November 2007 VA spine examination, the Veteran exhibited full range of motion with pain and some stiffness throughout forward flexion.  His spinal contour was noted as normal and "none of the above" was noted for muscle spasm or guarding severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  The examiner also noted "normal" with regard to any postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of the back.

A December 2007 VA outpatient treatment record noted the Veteran wears a back brace and complains of pain the lower back, which is stable and he continues to use Naprosyn for relief.  In March 2009, the Veteran underwent a VA outpatient orthotics prosthetics consultation for a lumbosacral corset.  Additionally, February 2008, February 2009, and June 2009 records noted the Veteran's continued complaints of lower back pain.    

Most recently, at the May 2010 VA spine examination, the Veteran exhibited full range of motion.  The examiner noted inspection of the spine revealed normal posture, head position, and gait, as well as symmetry in appearance.  There were no findings of kyphosis, lumbar flattening, lumbar lordosis, scoliosis, or ankylosis.  Moreover, the examiner noted that objective abnormalities of the lumbar spine, to include tenderness, were not severe enough to be responsible for abnormal gait or abnormal spinal contour. 

Based on the above, including normal range of motion with pain (which is anticipated in the rating criteria), and an absence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, the Board finds that a higher rating is not warranted.  

With respect to both the cervical and lumbar spine disabilities, as the clinical evidence of record does not show the Veteran has been diagnosed with intervertebral disc syndrome based on incapacitating episodes, a higher rating is not warranted on that basis.  In fact, the April 2006 VA general medical examiner noted the Veteran had not been placed on strict bed rest by a physician for incapacitating spine pain during the past 12 months.  

Although he informed the May 2010 VA spine examiner that he treated the neck pain by laying down, the examiner reported that there were no incapacitating episodes of spine disease and did not render a diagnosis of intervetebral disc syndrome for the cervical or lumbar spine.

Next, the Board finds that a separate compensable rating for the service-connected cervical spine and lumbar spine disabilities for any period is not warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, DCs 5235-5243, Note (1). 

Specifically, the Board acknowledges that the lumbar spine disability contemplates noncompensable radiculopathy and the RO granted service connection for erectile dysfunction in the November 2006 rating decision.  The Board also notes review of the Veteran's reported symptomatology regarding radiating pain from the cervical and lumbar spine and pain the testicles due to the back during the appeal period.  However, clinical evaluations of the spine have not demonstrated that separate compensable ratings are warranted for any objective neurological abnormality associated with these service-connected disabilities. 

Of note, the April 2006 VA general medical examiner noted there was no associated spinal history of bladder complaints, bowel complaints, or erectile dysfunction, but there was an associated numbness and pain involving the lower extremities bilaterally extending to the feet which occurred once a month for 10 minutes.  Results from the clinical evaluation revealed full strength throughout the upper extremities, negative straight leg raise results, and intact sensation for the lumbar spine.  

The November 2007 VA spine examination report noted "none of above" with regard to associated features or symptoms, to include numbness, weakness, bladder complaints, bowel complaints, and erectile dysfunction.  Sensory examination was normal for the upper and lower extremities, there were no complaints on rectal examination, and Lasegue's sign was negative.

The May 2010 VA spine examination report revealed there was no history of bowel impairment, bladder impairment, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, or unsteadiness.  Sensory examination of the upper extremities was normal, with the exception of impaired left vibration, and normal for the lower extremities.  Moreover, the Lasegue's sign was not positive.

Most recently, a June 2010 VA outpatient treatment record documents results from electromyographic studies revealed, in pertinent part, no evidence of cervical radiculopathy. 

Moreover, the Board finds that the evidentiary record, to include the Veteran's reported symptomatology, demonstrates that functional impairment due to painful motion is currently contemplated in the initially-assigned 10 percent ratings.  See 38 C.F.R. § 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. at 205.  

Fully considering the lay and medical evidence, for the entire initial rating period, the reported symptomatology, to include tenderness not resulting in an abnormal gait or spinal contour, limitation of motion, pain following repetitive motion, and painful motion, more closely approximates a manifestation of the currently-assigned 10 percent ratings under DC 5242 and DeLuca, 8 Vet. App. at 202.  

The lay and medical symptomatology does not more closely approximate a manifestation of the rating criteria for the assignment of a higher rating.  Thus, a preponderance of the evidence is against an initial rating in excess of 10 percent for the service-connected cervical and lumbar spine disabilities for any period.

With respect to all the claims, the Board has also considered the Veteran's statements that his disabilities are worse.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes.  In this decision, the Board has considered both his lay statements and the medical opinions regarding the degree of impairment caused by the disabilities.

The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to all the claims as required by the United States Court of Appeals for Veterans Claims (Court).  See Schafrath, 1 Vet. App. at 594.  However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign ratings higher than the currently assigned evaluations for the service-connected disabilities on appeal for any period.

With respect to all claims, the Board has applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all the Veteran's symptoms to his various service-connected disabilities.  With that in mind, the Board has considered whether referral for extra-schedular consideration is warranted.  In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  

First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule.  If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  See also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  

If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.

The record does not establish that the rating criteria are inadequate.  To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as psychiatric symptomatology, pain and limited motion, are the symptoms included in the criteria found in the rating schedule for his disabilities.  

Specifically, as to the psychiatric claim, the schedular rating criteria, DC 9413, specifically provides for disability ratings based on a combination of history and clinical findings.  In this case, considering the lay and medical evidence, the Veteran's anxiety disorder has been manifested by decreased concentration, avoidance of stimuli, nervous, poor insight, disturbed memory, insomnia, depression, an irritability, among other things.  

These symptoms are part of the schedular rating criteria.  In addition, the level of occupational and social impairment is explicitly part of the schedular rating criteria.  The GAF scores are also incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning.  Moreover, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria.  Mauerhan, 16 Vet. App. at 443.

The schedular rating criteria, DC 5305, contemplates the Veteran's complaints and symptomatology regarding the biceps tendon rupture, which includes atrophy, deformity, normal muscle strength, and normal muscle movement.  Thus, the degree of disability throughout the entire initial rating period and assigned 10 percent disability rating is adequate.

With respect to the musculoskeletal claims (thumb, right foot, cervical spine, and lumbar spine), the Veteran's complaints of pain and limitation of motion directly correspond to the schedular rating criteria under the appropriate diagnostic codes.  Comparing his disability level and symptomatology to the rating schedule, the degree of disability of each throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. 

In the absence of exceptional factors, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

In addition, the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The Court held that the VCAA notice must include notice that a rating and an effective date of the award of benefits will be assigned if service connection was awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, a March 2006 letter also included the type of evidence necessary to establish a rating and effective date for the disabilities on appeal.  

The Board finds that the VCAA notice requirements have been satisfied by the March 2006 letter.  In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had to obtain any records held by any federal agency.  This letter also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA.

The claims on appeal arise from the Veteran's disagreement with the initial ratings assigned after the grant of service connection.  The courts have held, and VA's General Counsel has interpreted, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-03 (separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).  See also 38 C.F.R. § 3.159(b)(3)(i) (there is no duty to provide VCAA notice upon receipt of a notice of disagreement).

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In connection with the claims on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, statements from the Veteran, and VA examination reports dated April 2006, November 2007, May 2010, June 2010, and July 2011.  The VA examiners reviewed the claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale.  The Board notes that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Pursuant to the Board's April 2010 remand instructions, the RO arranged for VA examinations in May 2010, June 2010, and July 2011 for the claims on appeal.  The examination reports reflect that the examiners considered the evidence of record and the reported history of the Veteran, conducted thorough examinations, noting all findings necessary for proper adjudication of the matters, and explained the rationale for the opinions offered.  

Hence, the Board concludes that these examinations are probative, adequate, and substantially complied with the April 2010 remand instructions.  See Nieves-Rodriguez, 22 Vet. App. at 295; Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions).  

The RO also received and associated with the claims file VA outpatient treatment records from December 2007 to June 2010 and readjudicated the issues on appeal in a September 2011 supplemental statement of the case (SSOC) and September 2011 rating decision.  VA's duty to assist is met.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal.  The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).


ORDER

An initial compensable rating for an anxiety disorder prior to November 2, 2007, is denied.

A 30 percent rating, but no more, for an anxiety disorder from November 2, 2007, to June 25, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits. 

A rating in excess of 50 percent for an anxiety disorder since June 26, 2010, is denied.

A 10 percent rating, but no more, for residuals of a status post biceps tendon rupture of the left upper extremity involving Muscle Group V prior to May 21, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits.

A rating in excess of 10 percent for residuals of a status post biceps tendon rupture of the left upper extremity involving Muscle Group V since May 21, 2010, is denied.

A 10 percent rating, but no more, for left gamekeeper's thumb prior to May 21, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits.

A rating in excess of 10 percent for left gamekeeper's thumb since May 21, 2010, is denied.

An initial compensable rating for residuals of a status post sesamoid fracture of the right foot prior to May 21, 2010, is denied.

A rating in excess of 10 percent for residuals of a status post sesamoid fracture of the right foot since May 21, 2010, is denied.

An initial rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied.

An initial rating in excess of 10 percent for degenerative disc disease with radiculopathy secondary to S1 nerve encroachment of the lumbosacral spine, is denied.


REMAND

A request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

In this case, at the July 2011 VA examination, the Veteran reported he was not currently employed and that he could not hold a job because of his anxiety.  As a result, the issue of TDIU due to an anxiety disorder has been raised by the record and is properly before the Board, the Board is remanding this matter for any necessary development and adjudication by the RO.  

Accordingly, the issue is remanded for the following actions:
	
1.  Provide the Veteran with additional VCAA notice on the issue of entitlement to TDIU.

2.  Obtain VA clinical records from the VAMC Temple, Texas, for the period from June 2010 to the present.

Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

3.  Schedule the Veteran for an examination.  After reviewing the claims folder and examining the Veteran, the examiner is requested to enter an opinion as to whether the Veteran's service-connected disabilities, including anxiety, left shoulder, right shoulder, cervical spine, lumbosacral spine, tinnitus, left upper extremity neuropathy, thumb, right foot, left biceps tendon rupture, left foot, right knee, fibula fracture, strained calf, erectile dysfunction, and left hydrocele, are so severe as to preclude substantially gainful employment.  

4.  Thereafter, re-adjudicate the TDIU issue.  If the benefits sought remain denied, the Veteran and the representative should be provided with a supplemental statement of the case (SSOC).  

The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue as well as a summary of the evidence received since the issuance of the last SSOC.  An appropriate period of time should be allowed for response.  

The Veteran and representative have 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 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).



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).
Department of Veterans Affairs