Citation Nr: 1312845 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-45 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for an anxiety disorder, not otherwise specified, prior to December 19, 2012 and entitlement to a rating in excess of 30 percent thereafter. 2. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left patella. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to June 1995. This case was last before the Board of Veterans' Appeals (Board) in November 2012, on appeal from April 2008 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2008, the RO issued a decision continuing a 10 percent disability rating for the Veteran's left knee disability; the RO granted service connection for an anxiety disorder in a June 2010 rating decision and assigned an initial 10 percent disability rating, effective November 5, 2009. The Veteran timely appealed the assigned disability ratings. The Board remanded the claims for additional development in November 2012. Although, in March 2013, the Appeals Management Center (AMC) issued a rating decision granting a 30 percent disability rating for the anxiety disorder, effective December 19, 2012, the Veteran has not indicated that rating satisfies his appeal so the matter remains before the Board. 38 C.F.R. § 20.201 (2012); Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in February 2012. A written transcript of this hearing was prepared and incorporated into the evidence of record. A copy of the hearing transcript is in the record and reflects that the Veteran was afforded an extensive opportunity to present hearing testimony, evidence, and argument on the issue herein decided. The transcript specifically reflects that the Veterans Law Judge asked the Veteran about any worsening in his disability, explaining the issues, and advised him to submit additional private treatment records, suggesting submission of evidence favorable to his position. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). On these bases, the Board finds that the hearing was legally sufficient. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file revealed additional medical evidence which has been carefully reviewed by the Board. As noted in the Board's November 2012 remand, the Veteran is awaiting the Agency of Original Jurisdiction's (AOJ's) adjudication of his claim for an increased rating for a right knee disability. The Board observes that decisions as to the Veteran's entitlement to compensation for low back pain and a digestive disorder as well as his entitlement to increased ratings for his right knee disability and left eyebrow scar were deferred in a rating decision issued by the AOJ in May 2011. As the claims file does not reflect any subsequent adjudication of these issues, the Board does not have jurisdiction over them so they are REFERRED to the AOJ for appropriate action. The issue of entitlement to a rating in excess of 10 percent for the left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the issue herein decided have been accomplished. 2. For the entire appellate period, the Veteran's anxiety disorder has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as mild-to-severe anxiety, mild depression, panic attacks, a restricted affect, significantly reduced social activities due to feeling embarrassed and frustrated when around others, anger, irritability, nervousness, difficulty sleeping, nightmares, and stress; without evidence of more severe manifestations more nearly approximating occupational and social impairment with reduced reliability and productivity or deficiencies in most areas, or total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent disability rating for anxiety disorder are approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126-4.130, Diagnostic Code 9413 (2012). 2. The criteria for a disability rating in excess of 30 percent for anxiety disorder from December 19, 2012 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126-4.130, Diagnostic Code 9413 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b) (1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 was revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b) (1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In regard to the appeal of the initial disability rating assigned for the Veteran's anxiety disorder, a December 2009 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the initial claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. Although the Veteran was not notified of the requirements to establish entitlement to an increased rating for an anxiety disorder, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of this information for newly raised or "downstream" issues, such as claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The December 2009 letter included notice explaining how a disability rating is determined or the basis for determining an effective date, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). Therefore, as the Veteran has appealed the initially assigned rating for his anxiety disorder, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of VA treatment records, private treatment records, and the reports of VA examinations conducted in May 2010 and December 2012. The Board does note that the Veteran testified in February 2012 as to additional private treatment, but no such records are associated with the claims file. However, t1he undersigned specifically held the record open for 30 days in order to provide the Veteran with an opportunity to submit additional private treatment records. Further, VA mailed the Veteran a November 2012 letter specifically asking him to either submit additional private evidence or to provide VA with authorization to obtain any outstanding private records on his behalf. The Veteran did not submit any additional records, or provide VA with the required authorizations following the hearing or the letter. Although the Veteran subsequently informed a December 2012 VA mental disorders examiner that he was receiving additional private mental health treatment, he submitted a "request for expedited processing" to VA in March 2013 in which he attested that he did not have any additional evidence to submit. The Board notes that VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Also of record and considered in connection with the appeal are various statements provided by the Veteran as well as his hearing testimony. The Board finds that no additional RO action to further develop the record in connection with the claims herein decided, prior to appellate consideration, is required. Although the Board is remanding the Veteran's claim of entitlement to an increased rating for his left knee, in part, for the collection of employment records, the Veteran has clearly stated that he never informed anyone at his place of employment of his service-connected mental health disability. See February 2012 hearing transcript. In regard to the VA examinations of record, the Board finds that the results are adequate to decide the issues as the examinations were predicated on interviews with the Veteran and evaluation of the severity of his mental health disability. Further, the examination reports expressly indicate that the examiners reviewed the entire claims file. There is no indication that the Veteran's psychiatric disability has worsened since the most recent, December 2012 examinations or that the pertinent evidence of record is insufficient to evaluate his disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c) (4). As noted above, the Board remanded the appeal in November 2012 for additional development. Specifically, the Board directed the AMC/RO to assist the Veteran in obtaining any outstanding private records, to associate additional VA treatment records with the claims file, and to afford him an additional VA mental disorders examination to assess the current severity of his anxiety disorder. The AMC mailed the Veteran a November 2012 letter requesting that he provide VA with authorization to obtain any outstanding private records on his behalf; he did not respond. Additional VA records have been associated with the claims file and he was afforded a VA examination in December 2012. As the claims file reflects that the RO/AMC took steps to complete the Board's directives, either completing them in full or documenting why full completion - in regard to the Veteran's failure to respond to the November 2012 letter - was not possible, the Board finds that the development directed in the prior remand has been substantially completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that substantial compliance, not absolute compliance, is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of this matter, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran seeks a higher initial disability rating for his anxiety disorder. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, a veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where, as regards the Veteran's anxiety disorder, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the award of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. The Veteran's psychiatric disorder is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9413. Under such regulations, ratings are assigned according to the manifestation of particular symptoms. 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A 10 percent disability rating requires 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 disability rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating requires 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. The criteria for a 70 percent rating are: 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. The criteria for a 100 percent rating are: 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. The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the DSM-IV. 38 C.F.R. § 4.130. The DSM-IV also contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual: * GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. * GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and 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 between 41 and 50 are assigned when there are 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). * GAF scores ranging between 31 and 40 are assigned when there is 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). Following a review of the evidence of record, the Board finds that, based on the Veteran's symptoms, an initial rating of 30 percent, but no higher, is warranted for the entire appeal period. A November 2009 report of telephone contact reflects that the Veteran called VA to file a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). In January 2010, he submitted a letter from his private psychologist, Dr. Scott. Dr. Scott stated that he had seen the Veteran three (3) times since October 2009, had evaluated the Veteran, and had diagnosed him with PTSD pursuant to the DSM-IV criteria. Dr. Scott noted symptoms such as flashbacks, nightmares, and intrusive thoughts. Dr. Scott also opined that the Veteran's PTSD symptoms were the result of his active duty experiences. The Veteran was afforded a VA mental disorders examination in May 2010. The examiner noted review of the claims file and reported administering depression and PTSD screening tests which both yielded negative results. The examination report reflects that the Veteran was appropriately groomed and dressed, reported having two (2) close friends as well as close relationships with his 2 sons. Upon examination, the Veteran demonstrated appropriate psychomotor activity, normal speech and affect, friendly and attentive attitude, good mood, intact attention and orientation, normal thought process and content, no delusions or hallucinations, insight and judgment, appropriate behavior, no obsessive behaviors or panic attacks, fair impulse control, no violent episodes, and no problems completing activities of daily living. Memory testing revealed normal remote, recent, and immediate memory, but the examiner observed chronic mental health symptoms, causing clinically significant distress or impairment, including recurrent and intrusive recollections of in-service stressful events, irritability, hypervigilance, and exaggerated startle response. However, the examiner determined that the Veteran did not meet the criteria for diagnosis of PTSD because he did not endorse any avoidance or numbing symptoms from criterion C of the DSM-IV diagnostic guidelines. The examiner diagnosed the Veteran with an anxiety disorder. The examiner noted that the Veteran had worked as a police officer for eight (8) years, was working full-time, and reported only missing one (1) week of work over the last year. The Veteran attributed his absence from work to knee pain. The examiner noted that there was not total occupational and social impairment, deficiencies in most areas (such as judgment, thinking, family relations, work, mood, or school), reduced reliability and productivity, occasional decrease in work efficiency with intermittent periods of inability to perform tasks, or decreased work efficiency and ability to perform tasks only in times of significant stress. The examiner concluded that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning. A GAF of 75 was assigned and the Veteran's prognosis for improvement was reported as fair/good. In September 2010, the Veteran wrote to VA and reported that he had been receiving "continuous treatment" for PTSD from Dr. Scott. He also stated that his symptoms were so severe that he "had to seek help from a professional." The Veteran reported that he had only been compensated for his anxiety attacks and stated that the attacks only occurred when he was "under stress as a result of the PTSD symptoms." The Veteran testified before the undersigned in February 2012. He reported that his private psychologist thought he should try medication, but he refused because he did not want to experience any medication side effects that might interfere with his employment. He informed the undersigned that he had missed "a lot" of time from work due to anxiety symptoms and, at one time, used up all of his available sick leave. He reported that although he was currently married, he was separated. He also reported a prior divorce that he attributed to irritability and anxiety caused by his mental disorder, but he later stated that he did not think that his first marriage broke up as a result of his mental health symptoms. The Veteran testified that he had "panic attacks constantly," was hypervigilant, his "sleep pattern is really bad," and he had "very bad" short term memory. He reported that he had been questioned by his supervisor about forgetting certain things. Upon questioning, he stated that he had not seen his private psychologist since January 2010. In December 2012, he was afforded another VA mental disorders examination. The examiner stated that the Veteran experienced only one mental disorder, which was anxiety disorder. The examiner observed that the Veteran was still working full time as a police officer, but had ended his second marriage in October 2012 and reported "we grew apart" as the reason both relationships ended. The Veteran informed the examiner that he had friends with whom he enjoyed socializing and was currently in another relationship, but stated that he was receiving private mental health treatment for anxiety, depression, and PTSD. Anxiety, chronic sleep impairment, and disturbances of motivation and mood were listed as symptoms of the Veteran's mental disorder. The Veteran reported working night shifts and having achieved a 90 percent in his job performance review. The examiner observed that at least some of the Veteran's sleep difficulties were attributable to working at night. The Veteran was noted to be successfully completing his employment and to be enrolled in school, participating in close relationships with his children, and socializing with friends. The examiner opined that the Veteran's symptoms were consistent with mild anxiety and assigned a GAF of 65. As an initial consideration, the Board notes that the January 2010 letter from Dr. Scott reflects a diagnosis of PTSD, but the 2010 and 2012 VA examiners diagnosed anxiety disorder. When faced with conflicting medical opinions, the Board must weigh the credibility and probative value each of the opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). In determining the probative value to be assigned to a medical opinion, the Board must consider whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case and provided a fully articulated opinion supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although 38 C.F.R. § 4.125 (b) directs that evidence of change in diagnosis requires the rating agency to determine whether or not the new diagnosis represents progression of the prior diagnosis, correction of diagnostic error, or development of a new and separate condition, the Board finds that the most competent, credible, and probative medical evidence of record reflects that the Veteran has experienced an anxiety disorder for the entirety of the appellate period. Further, although the Board has considered the Veteran's lay contentions that he has PTSD and his anxiety is just a symptom thereof, he has not established that he has the specialized knowledge or training required to render a clinical diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Further, although he also informed the 2012 VA examiner that he is under treatment for PTSD, anxiety, and depression, both the 2010 and 2012 VA examiners concluded, after review of the record and interview and examination of the Veteran, that he only experienced one mental disorder - anxiety. As the Veteran has not submitted any other private medical evidence, or provided VA with the necessary authorizations on his behalf, the most competent and probative medical evidence of record reflects that the Veteran only has an anxiety disorder as the result of his in-service experiences. The Board notes several inconsistencies in the Veteran's statements in letters to VA, hearing testimony, and comments to health care practitioners. Specifically: the Veteran wrote in a September 2010 letter that he was receiving continuous (italics added for emphasis) treatment from his private psychologist, but testified in February 2012 that he had not seen the psychologist since January 2010; he testified that he had missed significant time from work due to mental health symptoms, but he did not report any missed work at the 2012 examination and informed the 2010 mental disorders examiner that he had only missed a week of work and that was due to his knee disability; he testified that his irritability and memory problems were interfering with his work performance, but he told the 2012 examiner that he had received a 90 percent job evaluation and indicated the ability balance work and school as well as family and other social activities; he testified that he had "constant" panic attacks, but denied panic attacks at the 2010 VA examination and did not report them to the 2012 VA examiner. The statement as to constancy of panic attacks is also facially implausible as such would render the Veteran unable to function occupationally or socially. Generally regarding the Veteran's statements, while VA cannot ignore his testimony, his personal interests may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Further, the Board may consider internal inconsistency, facial plausibility, and consistency with other evidence, when determining the probative value of evidence. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The Board finds that the multiple inconsistencies in the Veteran's statements decrease the probative value of his lay evidence and specifically render his statements as to panic attacks and "continuous" mental health treatment not credible. Caluza, 7 Vet. App. at 511-512. However, the record does present consistent competent and probative evidence of occupational and social impairment due to anxiety, sleep impairment, and mild memory loss. Specifically, the Veteran has consistently attested to chronic sleep impairment and both private and VA medical evidence reflects sleep disruption due to nightmares; although the 2012 VA examiner noted some sleep disturbance attributable to the Veteran's work schedule, he did not attribute all (italics added for emphasis) of the sleep disturbance to scheduling. Although the Veteran has consistently maintained full time employment as well as good relationships with his sons, he has reported being questioned by superiors about minor memory problems (such as inability to remember an address) and has experienced two divorces, indicating difficulty with maintaining effective social relationships. The Veteran has also consistently reported, and both the 2010 and 2012 VA examiners have observed, anxiety. Although the GAF scores assigned by the VA examiners - 75 and 65 - indicate mild, or better, symptomatology, the Board finds that the Veteran's psychiatric disorder warrants an initial rating of 30 percent based on the evidence of record. The Board further finds, for the reasons articulated below, that a rating in excess of 30 percent is not warranted, even after December 19, 2012, the date of the most recent VA examination and the effective date of the 30 percent disability rating assigned by the AMC in March 2013. The evidence, as discussed in detail above, fails to demonstrate that the Veteran's psychiatric disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Moreover, the evidence reveals that the Veteran does not experience symptoms similar to those needed for a higher rating. In this regard, the evidence reflects a predominantly normal mood, full orientation, no difficulty with activities of daily living, normal thought process, and fair judgment and insight. Additionally, the examiners observed no suicidal or homicidal ideation, thought disorder or psychosis, or delusions and hallucinations. Additionally, while VA treatment records show that the Veteran has reported memory problems, sleep disorder, anxiety, and some difficulty in maintaining effective close social relationships, the Board finds that his symptomatology, taken as a whole and in combination with the objective medical evidence of record does not more nearly approximate a 50 percent rating either before or after the December 19, 2012 VA examination. In the absence of additional symptomatology more nearly approximating higher ratings, the Veteran is not entitled to an initial rating in excess of 30 percent. The above determination is based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this appeal has the disability under consideration been shown to be so exceptional or unusual to warrant the assignment of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b) (1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B (5) (c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned ratings are therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b) (1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board has found that the schedular rating criteria are more than adequate to rate the disability under consideration. Specifically, the Board has explained that the 30 percent rating assigned for the Veteran's anxiety disorder contemplates symptoms not experienced by the Veteran, but contemplates his symptoms. As the Board's preceding comparison between the symptomatology of the claimant's disability with the established criteria provided in the rating schedule reveals that his disability picture is adequately addressed by the rating schedule, the assigned rating is are adequate and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96; Thun, 22 Vet. App. 111. The Board also notes that, in certain circumstances, a claim for total disability rating based on individual unemployability due to service-connected disability (TDIU) may be considered a component of a claim for higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A TDIU may be granted where a Veteran's service connected disability(ies) is/are rated less than total, but they prevent him or her from obtaining or maintaining all gainful employment for which he or she is qualified by education and occupational experience. 38 C.F.R. § 4.16 (2012). However, as the Veteran has not presented evidence of unemployment or contended that his service-connected disabilities render him unemployable, the Board finds that no TDIU claim, pursuant to Rice and Roberson, has been raised in connection with the issue herein decided. ORDER Entitlement to an initial 30 percent disability rating for anxiety disorder is granted. Entitlement to a disability rating in excess of 30 percent after December 19, 2012 is denied. REMAND The Board's review of the claims file reveals that further RO action in regard to the appeal of the rating assigned for the left knee disability is warranted, even though such will, regrettably, further delay an appellate decision. In November 2012, the Board remanded the Veteran's claim in order for the RO/AMC to collect any outstanding VA treatment records, assist him in collecting any outstanding private treatment records, and afford him a VA examination. Although the Veteran did not respond to a subsequent VA letter asking him to submit additional records or to provide VA with the necessary authorization to obtain those records on his behalf, as the claim is herein remanded, the Board will afford the Veteran another opportunity to submit, or request that VA gather on his behalf, outstanding private treatment records. The claims file specifically reflects that he receives regular treatment from a Dr. Stowers, but no treatment records from Dr. Stowers generated after January 2012 are associated with the claims file. Further, a March 2008 treatment note from Dr. Stowers refers to the Veteran's evaluation (for knee surgery) by a private physician in Gainesville and the December 2012 VA examiner observed that the Veteran had undergone private physical therapy. The Veteran should be afforded another opportunity to submit any additional private treatment records. Further, in regard to VA treatment records, the Board notes that the most recent VA treatment note associated with the record was generated in Tallahassee on November 6, 2012 and reflects that he would be seen on December 13, 2012 by a VA orthopedist in Gainesville. While this case is in remand status, the RO/AMC should make additional efforts to obtain any available outstanding VA treatment records dating from November 6, 2012 generated at either Tallahassee or Gainesville. Further, as the VA treatment notes associated with the claims file as a result of the last remand reflect that the Veteran is in receipt of vocational rehabilitation from VA due to his left knee disability, the RO/AMC must also gather those records and associate them with the claims file. The Veteran has also repeatedly contended that his left knee disability has caused significant interference with his work - to include requiring that he use up all of his sick leave and forcing reassignment to light duties. In Spurgeon v. Brown, the Court held that VA had a duty to advise the claimant of the potential relevance of employment records. 10 Vet. App. 194, 197-98 (1997). The RO/AMC must take appropriate steps to advise the Veteran of the relevance of his employment records - particularly those pertaining to any accommodations made for him as the result of disability - and assist him in gathering any records that he identifies as relevant. The Veteran was last afforded a VA examination to evaluate the severity of his left knee in December 2012. Although the examiner conducted all range of motion measurements and the report reflects results for all standard inquiries, the Board notes that private treatment records associated with the claims file, as well as VA treatment records, reflect that muscle atrophy and tendon strain may be associated with the Veteran's left knee disability. Unfortunately, the December 2012 VA examiner conducted muscle strength testing, but did not report on the presence or absence of any tendon strain or muscle atrophy or discuss the evidence of record that reflects atrophy associated with the left knee disability. Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. Accordingly, the RO should return the claims file to the December 2012 examiner for an addendum opinion. The RO should only arrange for further examination of the Veteran if that examiner is unavailable, or if further examination of the Veteran is deemed necessary. Accordingly, the case is REMANDED for the following action: 1. Gather any outstanding VA treatment records generated from November 6, 2012 (NOTE that the claims file reflects treatment at both Tallahassee and Gainesville) and associate them with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 2. Gather the Veteran's Vocational Rehabilitation records and associate them, or a copy thereof, with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 3. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. Ask him to identify the Gainesville physician who evaluated him for knee surgery in 2008. Provide him with forms authorizing the release of any PERTINENT EMPLOYMENT RECORDS as well as any identified outstanding private treatment records to specifically include any records of treatment occurring after January 2012 from Dr. Stowers and any records of physical therapy. Make at least two (2) attempts to obtain records from any identified source. Any available records must be associated with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 4. After all records and/or responses have been received from each contacted entity and associated with the claims file, forward the Veteran's entire claims file, to include a copy of this REMAND, to the VA examiner who completed the December 2012 joints examination. The examiner should review the claims file, with particular attention to any evidence newly associated with the claims file as a result of this remand. The examiner is asked to address the VA and private medical evidence of record indicating that the Veteran may experience tendon strain as well as muscle atrophy (vastus medius) associated with the left knee disability. Specifically, the examiner must provide an opinion, with rationale, as to whether or not these disabilities are more likely than not part of the Veteran's service-connected disability and, if so, assess their severity. If the prior examiner is not available, or another examination is deemed warranted, arrange for the Veteran to undergo VA examination at an appropriate location to obtain the requested opinions. All examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached, should be set forth in a printed (typewritten) report. 5. The RO/AMC should then determine whether the Veteran's claim of entitlement to an increased rating for his left knee disability should be referred to the Director of VA Compensation and Pension for extraschedular consideration. 6. Readjudicate the remanded claim, to include consideration of any appropriate staged rating. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs