Citation Nr: 1314074	
Decision Date: 04/29/13    Archive Date: 05/15/13

DOCKET NO.  10-44 028	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for a right knee disorder.

2.  Entitlement to service connection for a left knee disorder.

3.  Entitlement to service connection for bilateral pes planus.

4.  Entitlement to service connection for bilateral trench foot.

5.  Entitlement to service connection for residuals of a jaw fracture.

6.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder with depression.

7.  Entitlement to a total rating based on individual unemployability.



REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Pflugner, Counsel


INTRODUCTION

The Veteran served on active duty from March 1979 to April 1983.

The issues of entitlement to service connection for a right knee disorder and a left knee disorder come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Milwaukee, Wisconsin (RO).  The issues of entitlement to service connection for bilateral pes planus, bilateral trench foot, and residuals of a jaw fracture come before the Board on appeal from a March 2010 rating decision by the RO.  The issue of entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) comes before the Board on appeal from an October 2010 rating decision by the RO.  The Veteran's claim of entitlement to service connection for PTSD was granted in the October 2010 rating decision, and a 30 percent initial rating was assigned thereto, effective from July 21, 2009.  

Following a June 2011 supplemental statement of the case and a separate June 2011 statement of the case, the Veteran submitted evidence with a contemporaneous waiver of RO review.  As such, the Board will consider the evidence herein.  38 C.F.R. § 20.1304 (2012).

During the pendency of the appeal, with respect to the issue of entitlement to service connection for residuals of a jaw fracture, the Veteran asserted that his dental caries, carious teeth, and missing teeth due to caries were a result of a jaw fracture and/or the apparatus used to fixate his mandible.  However, disability compensation is available for loss of teeth if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling.  38 C.F.R. § 4.130, Diagnostic Code 9913, at Note.  The Veteran has not asserted and the evidence of record did not support finding that his loss of teeth was due to bone loss caused by trauma or osteomyelitis.  Accordingly, his treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease can be considered for service connection, but solely for the purpose of establishing eligibility for outpatient dental treatment.  38 U.S.C.A. § 1712; 38 C.F.R. § 3.381, 4.150.  As a claim for outpatient dental treatment has not been addressed by the RO, the Board does not have jurisdiction to consider it herein.  As such, the claim is referred to the RO for appropriate action.

A claim for a total rating for compensation purposes based on individual unemployability (TDIU), either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Board finds that the record reasonably raised the issue of whether the Veteran was rendered unemployable due to his service-connected PTSD.  Accordingly, the Board concludes that a claim for TDIU has been raised and is properly before the Board.  Id.

The issues of entitlement to service connection for a left knee disorder, bilateral pes planus, bilateral "trench foot," and TDIU will be addressed in the remand portion of the decision and are REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  The onset of the Veteran's right knee chondromalacia was during his active duty service.

2.  The most probative competent and credible evidence of record does not demonstrate the presence of chronic residual disability of a jaw fracture at any time since receipt of the claim for service connection.

3.  Throughout the rating period on appeal, the Veteran's PTSD was manifested by depression; irritability; sleep difficulties/insomnia; waking up in colds sweats; nightmares occurring up to 4 times per week; "some" anhedonia; flashbacks occurring from "a little bit" to a near-daily basis; intrusive memories; anxiety; hypervigilance; avoidance behavior; nervousness; feelings of guilt; anger; exaggerated startle response, variable mood, and variable affect, with Global Assessment of Functioning scores between 51 and 65, productive of functional impairment no worse than comparable to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.


CONCLUSIONS OF LAW

1.  Right knee chondromalacia was incurred in active service.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

2.  Chronic residual disability of a jaw fracture was not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

3.  The criteria for an initial rating in excess of 30 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the Veteran's claim of entitlement to service connection for a right knee disorder because the Board is granting service connection herein.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

With respect to the issue of entitlement to service connection for residuals of a jaw fracture, proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The 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, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

Prior to the initial adjudication of the Veteran's claim of entitlement to service connection for residuals of a jaw fracture, the RO issued a VCAA notice letter in January 2010 which advised the Veteran of the foregoing elements necessary to substantiate his claim.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman, 19 Vet. App. at 486.  Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of these claims, including the opportunity to present pertinent evidence.  Thus, the Board finds that the content requirements of the notice VA is to provide have been met.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

Because the October 2010 rating decision granted the Veteran's claim of entitlement to service connection for PTSD, such claim is now substantiated.  His filing of a notice of disagreement does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  38 C.F.R. § 3.159(b)(3).  Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The June 2011 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disability at issue and included a description of the rating formulas for the current evaluation and for all other higher evaluations.  The Veteran was, thus, informed of what was needed to achieve a higher schedular rating.  As such, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).

The Board finds that VA's duty to assist has been satisfied with respect to each of the claims decided on the merits herein.  The RO has obtained the Veteran's service treatment records, his identified VA and private treatment records, and the documentation associated with his application for disability benefits from the Social Security Administration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Further, there was no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.

Additionally, the Veteran was provided VA examinations in May, June, and September 2010.  The examiners took into account the Veteran's statements and relevant treatment records, and performed thorough clinical evaluations, which allowed for fully-informed evaluations of the claimed disabilities.  Further, the examiners provided opinions that addressed the salient etiological questions presented by the Veteran's claims.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  As such, the Board finds that the VA examinations afforded to the Veteran were adequate.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during a November 2011 Board hearing, the undersigned VLJ noted the elements of the claims that were lacking.  The Veteran was not assisted at the hearing by a representative; however, the VLJ asked questions to ascertain the extent of any inservice event or injury and whether the Veteran's current disabilities are related to his complaints during service.  The VLJ also asked questions to draw out the current state of the Veteran's PTSD.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran.  The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection and the basis for achieving a higher rating for his PTSD.  The Veteran did not suggest any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

I.  Service Connection

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).


A.  Right Knee

An undated service treatment records demonstrated that the Veteran complained of "popping" in his right knee.  A physical examination revealed crepitus, but no swelling or heat, and a full range of motion.  The examiner also determined that the Veteran's right knee was stable.  He was referred for further evaluation.

A July 1979 clinical record demonstrated that the Veteran was being evaluated for mild crepitus.  During the evaluation, the Veteran complained of right knee pain with a history of three months, worse since marching one week prior.  He also stated that he experienced pain with ascending stairs and increased activity.  The Veteran reported that he was previously diagnosed with Osgood-Schlatter disease and that he underwent a radiological examination many years ago.  A physical examination demonstrated that the Veteran's gait was normal.  The Veteran's right knee exhibited a full range of motion with mild crepitus.  There was tenderness along the inferior pole patella.  The joint was stable and there were no joint line symptoms.  The impression was mild chondromalacia patella.

An August 1979 service treatment report demonstrated that the Veteran complained of right knee pain.

A clinical evaluation during an October 1980 periodic examination showed that the Veteran's lower extremities and musculoskeletal system was normal.

In December 1982, upon service discharge, the Veteran underwent an examination.  The Veteran's lower extremities and musculoskeletal system were deemed normal as a result of a clinical evaluation.  In a contemporaneous report of medical history, the Veteran endorsed "swollen or painful joints" and a "'trick' or locked knee."  In the physician's summary section, the examiner noted a history of retropatellar knee pain without medications.

The post-service evidence of record demonstrated complaints of and treatment for right knee symptoms and a right knee disorder beginning in June 2008.  VA treatment records dated in June 2008 demonstrated that the Veteran reported a right knee injury while playing basketball.  Magnetic resonance imaging (MRI) revealed a large joint effusion with non-obstructive suprapatellar plica; a moderate Baker's cyst; cartilage abnormalities; a medical meniscus tear; a mild anterior cruciate ligament sprain; and enthesopathy that was "likely secondary to chronic repetitive movement."  Treatment records dated in and after June 2008 demonstrated that the Veteran complained of and was treated for a right knee disorder.

Based on the above, the Board finds that the evidence of record demonstrated an inservice right knee disorder and further demonstrated a current diagnosis of a right knee disorder.  As such, the salient issue with respect to the Veteran's claim of entitlement to service connection for a right knee disorder is whether a current right knee disorder is etiologically related to the inservice right knee disorder.  The evidence of record included only one opinion wherein this issue was addressed.

In June 2010, the Veteran underwent a VA examination in order to ascertain the nature of any right knee disorder present and whether any such disorder was etiologically associated with the Veteran's military service.  After reviewing the Veteran's claims file, the Veteran's statements, and a thorough clinical examination, the diagnosis was chondromalacia of the right knee.  The examiner then opined as follows:

It is at least as likely as not that the [V]eteran's chondromalacia, which was diagnosed in July 1979, was present but there were no complaints of any knee pain until his acute injury in June 2008.  That MRI did show some thinning cartilage, suggesting chondromalacia; however, the [V]eteran's current knee complaints would seem to stem from that injury in June 2008 since there were no complaints of any right knee pain prior to that since his military service.

In essence, the June 2010 VA examiner associated the Veteran's current right knee symptoms with the June 2008 basketball injury.  See generally Mitleider v. Brown, 11 Vet App 181 (1998) (standing for the proposition that where non-service-connected symptoms cannot be separated from service-connected symptoms, all of the symptoms are treated as service-connected).  However, the issue presently pending before VA is whether any current right knee disorder is etiologically related to the Veteran's military service; the severity of any potentially service-connected disability is not for consideration and, thus, will not be addressed herein.  With respect to the issue currently on appeal, the examiner opined that the Veteran's current right knee chondromalacia was "at least as likely as not" related to his inservice right knee chondromalacia.

In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  There was no post-service medical evidence of record that disassociated the Veteran's right knee chondromalacia from his active duty service.  Indeed, as discussed immediately above, the only competent etiological opinion of record was that of the June 2010 VA examiner, which supported the Veteran's claim. 

Accordingly, with application of the doctrine of reasonable doubt, the Board finds that the Veteran's current right knee chondromalacia was incurred during his active duty service.  Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  As such, service connection is warranted for right knee chondromalacia.

B.  Residuals of a Jaw Fracture

The Veteran's service treatment records clearly demonstrated that he experienced a right mandible fracture in October 1981.  The Veteran was placed in an intermaxillary fixation, after which the Veteran's service treatment records did not demonstrate any additional treatment or complaints.  Further, upon his service discharge examination in December 1982, clinical evaluation was negative for findings relating to the right mandible fracture.  Moreover, the examiner indicated that the Veteran had sustained a right mandible fracture, but that there were no sequelae.

Post-service treatment records demonstrated that the Veteran sustained a fractured mandible in April 1999 secondary to an assault.  The Veteran underwent mandibulomaxillary fixation in May 1999.

In June 2010, the Veteran underwent a VA examination to ascertain the presence of any disability etiologically associated with the inservice jaw fracture.  Upon physical examination, the examiner observed a partially edentulous maxilla and mandible in a class II malocclusion.  The examiner also observed that the Veteran was missing teeth numbers 2, 3, 4, 5, 13, 17, 18, 19, 21, 31, and 32, and that the Veteran's oral hygiene was "poor."  Further, the examiner found that gingivitis was present, caries were evident, and that tooth number 12 was carious and fractured at the gingival level.  The Veteran denied paresthesias or anesthesia of the inferior alveolar nerve.  Upon examination of the temporomandibular joints, there were no sounds; and maximum interincisal opening was 40 millimeters, without deflection or deviation.  Additionally, the maximum left and right lateral excursion was 7 millimeters; lateral and protrusive excursions were smooth and synchronous into full range of motion with mild discomfort.  The right and left masseter muscles were painful to palpation.  The pterygoid muscles were painful on load testing.  A radiological examination confirmed many of the examiner's findings, but also revealed that the Veteran's right mandibular fracture had "healed without residuals."  Ultimately, the diagnoses were "other specified psychophysiological malfunction, bruxing, and clenching," in addition to a loss of teeth due to caries.  The examiner then opined as follows:

After reviewing medical records, radiographs and conducting a clinical examination, it is my opinion that [the Veteran's] present complaint of masticatory muscle pain and fracture of teeth are less likely as not caused by active duty service.

...

[The Veteran's] tooth fractures are due to extensive dental caries.  [The Veteran's] complaints of jaw pain are due to masticatory muscle pain, which is usually caused by oral parafunction, or bruxing and clenching.  Oral parafunction is less likely as not due to mandibular fracture.  [The Veteran's] mandibular fracture healed without radiographic residuals.

During a November 2011 Board hearing, the Veteran described the circumstances giving rise to the inservice jaw fracture and detailed his current symptoms that he associated with that injury.

To the extent that the Veteran's claim concerns residuals of the October 1981 jaw fracture, the Board finds that the evidence of record does not include a current diagnosis of a disorder.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  Specifically, the Veteran's December 1982 service discharge examination showed that his jaw fracture healed without sequelae.  Further, the June 2010 VA examiner reviewed X-rays and found that the Veteran's mandibular fracture healed without radiographic residuals.  Moreover, the June 2010 VA examiner opined that the Veteran's current oral parafunction and associated masticatory muscle pain were "less likely as not" due to the mandibular fracture.  

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Absent adequate medical evidence reflecting the current presence of the claimed disability, a basis upon which to establish service connection for residuals of a jaw fracture has not been presented and the appeal must be denied.

In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  The only competent and probative diagnostic opinion of record was that of the June 2010 VA examiner, which was negative to the Veteran's claim. 

To the extent that the Veteran asserts that he has residuals of a jaw fracture, the Board finds that diagnostic opinions are more suited to the realm of medical, rather than lay expertise.  Determining whether residuals of a jaw fracture are present, especially in the presence of other disorders, is too complex for a layperson to proffer a competent opinion.  The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent diagnostic opinions.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  As such, the Board assigns more probative value to the June 2010 VA examiner's opinion.

Accordingly, service connection is not warranted as the most probative evidence of record shows that no residuals of the jaw fracture incurred in service are present.  In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection, the doctrine is not for application.  Gilbert, 1 Vet. App. at 54-56.

To the extent that the Veteran was pursuing a claim for VA benefits related to his teeth, as discussed in the Introduction, the Board referred a claim of entitlement to outpatient dental treatment as such a claim has not been considered by the RO.

II.  PTSD

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2012).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

The Veteran's appeal is based on the assignment of a disability rating following the initial award of service connection.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Accordingly, evidence contemporaneous with the claim and the rating decision that granted service connection is most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Id. at 126.  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time.  Id.

According to the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is 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, or mild memory loss (such as forgetting names, directions, and recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or 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; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships.  Id.

A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name.  Id.

In evaluating the evidence, the Board will consider the various Global Assessment of Functioning (GAF) scores that clinicians have assigned.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995).  A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships.  Id.  A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning.  Id.  A GAF score of 41-50 is assigned where 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)."  Id.

A January 2009 VA outpatient mental health assessment demonstrated that the Veteran was being evaluated for depression and alcohol/cocaine abuse.  During the assessment, the Veteran stated that he had no source of income; that his current housing situation was unstable as his father had recently asked him to leave his home; he denied ever being married and having children; and that he had three close friends, but no leisure activities.  The Veteran endorsed previous psychiatric treatment and medication.  The Veteran self-described his mood as depressed and anxious.  He denied previous or current suicidal and homicidal ideations.  He stated that he was "very much" bothered by psychological or emotional problems in the previous 30 days.  A mental status examination revealed the following symptoms:  alert; orientation to person, place, and time; normal appearance; pleasant and cooperative behavior; normal motor activity; speech of a normal rhythm, rate, and volume; normal flow of thought; a memory that appeared intact; normal concentration; no audio or visual hallucinations; no delusions; a depressed and anxious mood with a congruent affect; good judgment; and fair insight.  The impression was PTSD, depression, and alcohol and cocaine abuse, with a GAF score of between 51-60, indicating moderate symptoms.

A February 2009 VA mental health note demonstrated that the Veteran was admitted to a domiciliary program on February 2, 2009.  Prior to this admission, the Veteran stated that he lived with his father until the house burned down.  After discussing his education and military career, the Veteran reported that he had held three occupations since his military discharge.  Among these, he stated that he served as a self-employed carpenter the longest (23 years).  He stated that he last worked in June 2008, stopping due to his knees and substance abuse.  He denied any current source of income.  The Veteran then detailed his substance abuse history.  In pertinent part, the Veteran endorsed the use of alcohol since 1974 and the use of cocaine since 1997, and that his longest period of sobriety was for a year in 2004 while he was incarcerated.  He stated that his girlfriend was supportive of him.  He stated that he was previously married, but that the marriage was to a woman who was already married and, thus, their union was "dissolved."  He endorsed watching television as his leisure/recreational activity.  The Veteran reported that he underwent previous psychiatric treatment and that he was currently prescribed a psychiatric medication (Mirtazapine).  He denied past and present suicidal ideations and present homicidal ideations.  The addiction therapist conducting the assessment found that the Veteran had a history of substance abuse dating back to his adolescence.  Ultimately, the diagnoses were alcohol dependence and cocaine dependence, with a GAF score of 53.

A May 2009 VA mental health psychiatry intake assessment note showed that the Veteran underwent an approximately one hour initial psychiatric evaluation.  The Veteran's chief complaint was irritability.  The Veteran endorsed experiencing depression intermittently since his military discharge.  He also endorsed chronic insomnia, with current sleep of about 1 to 2 hours each night.  Further, the Veteran expressed "some" anhedonia, which was complicated by physical limitations and feeling "incapable."  He denied feelings of guilt and problems with his energy level.  The Veteran also endorsed problems with his memory and concentration since a serious motor vehicle accident after which he was in a coma for 3 months.  The Veteran stated that his appetite was good, and that he had been eating more since being admitted to the domiciliary program.  He endorsed previous suicidal ideations and hopelessness consequent to his father's house burning down, but denied a plan or intent to harm himself on that occasion or since.  He denied a history of euphoric mood, decreased need for sleep, or hallucinations.  He reported nightmares "off and on" since his military service, but nightly since the 2009 house fire.  The Veteran also reportedly experienced flashbacks "a little bit" when he was outside and intrusive memories when he was by himself.  The Veteran stated that he avoided being alone, and that being around other veterans triggered anxiety.  He endorsed being hyperaware of his surroundings, not liking enclosures, feeling almost paranoid at times, and described his mood as "temperamental" and "on edge."  After reviewing the Veteran's past medical history, substance abuse history, and military history, the doctor administered a mental status examination that revealed the following symptoms:  alert; oriented, but had difficulty with the recalling the date; appropriate grooming and hygiene; fair eye contact; speech of a normal volume and a somewhat slowed rate; a temperamental mood; somewhat blunted, guarded affect; logical, goal-directed thought process; no suicidal or homicidal ideations; no audio or visual hallucinations; no overt psychosis; and hypervigilance subjectively described as paranoia.  The diagnoses were depressive disorder, not otherwise specified; anxiety, not otherwise specified (likely PTSD, military related); alcohol and cocaine dependence, in remission in controlled environment, with a GAF score of 53.  Additionally, the doctor provided an assessment wherein he acknowledged that the Veteran had "significant memory impairment," but found that this was likely related to a 1997 motor vehicle accident.

A July 2009 VA outpatient psychiatry medication management note demonstrated that the Veteran reported his medication improved his sleep by 1.5 to 2 hours, but did not improve his mood or anxiety symptoms.  The Veteran's symptoms of chronic depressive and anxiety symptoms, nightmares, flashbacks, intrusive memories, hypervigilance, and avoidance behavior remained unchanged since May 2009.  The Veteran endorsed being even more "on edge" due to reviewing pictures from an album from his military service.  A mental status examination revealed the following objective symptoms:  alert; oriented; appropriate grooming and hygiene; fair eye contact; speech of a normal rate and volume; "on edge" mood; somewhat blunted affect, with smiling at appropriate times; logical and goal-directed thought process; no suicidal or homicidal ideations; no audio or visual hallucinations; and no overt psychosis.  The diagnoses were PTSD, military related; depressive disorder, not otherwise specified; alcohol and cocaine dependence, in remission in a controlled environment.  No GAF score was assigned.

A September 2009 VA mental health outpatient psychiatry medication management note demonstrated that the Veteran stopped taking a medication due to its side effects and because it failed to improve his mood or anxiety symptoms.  The Veteran stated that a new medication minimally improved his sleep.  He also reported that being around other veterans in the domiciliary program worsened his sleep and PTSD symptoms.  He stated that his chronic depressive and anxiety symptoms, insomnia, nightmares, flashbacks, intrusive memories, hypervigilance, and avoidance symptoms persisted.  The Veteran expressed his belief that his PTSD symptoms were worse during this period of sobriety.  He said that he tended to feel nervous, angry, found it difficult to focus, and avoided confrontation.  A mental status examination revealed the following objective symptoms:  alert; oriented; appropriate grooming and hygiene; fair eye contact; speech of a normal volume and rate; a "more on edge" mood; a somewhat blunted, but not overtly irritable affect; logical and goal-directed thought process; no suicidal or homicidal ideations; and no internal preoccupation; questionable auditory hallucinations, but no overt psychosis.  The assessment was PTSD, military related; depressive disorder, not otherwise specified; and alcohol and cocaine dependence, in remission in a controlled environment.  No GAF score was assigned.

An October 2009 VA discharge summary indicated that the Veteran received medical clearance for part-time work and that he had secured housing.  The discharge diagnoses were alcohol, cocaine, and nicotine dependence; depressive disorder, in sustained remission, with a GAF score of 58.

A November 2009 VA mental health note demonstrated that the Veteran appeared for individual psychiatric treatment.  The social worker observed that the Veteran's eye contact was marginal; that he was polite; and that he initiated topics of conversation.  The Veteran endorsed a mood that continued to "go up and down," and continued insomnia.  Specifically, the Veteran stated that he experienced difficulties falling asleep and tended to get 4 to 5 hours of sleep nightly.  In addition to a couple of other areas of progress, the Veteran reported that he was about to undergo a vocational training course.  No diagnosis or GAF score was assigned.

According to a November 2009 VA mental health outpatient psychology individual therapy note, the Veteran was seen for 45 to 50 minutes for treatment of trauma, anger, and addiction.  The Veteran described an incident with another individual over food that upset him.  Although no physical altercation ensued, the Veteran certainly had fantasies of such.  A mental status examination demonstrated the following symptoms:  well-controlled agitation and anxiety; pleasant, with a congruent affect; well-groomed; good eye contact; voice of normal rate, rhythm, and volume; a linear thought process; appropriate thought content; no suicidal or homicidal ideations; and cooperative.  The doctor then stated that the Veteran was struggling to accept "painful/ugly/potentially embarrassing affect and behaviors associated with such."  The doctor also stated that the Veteran had a low tolerance that fed his impatience and difficulty with tolerating experiencing such an affect.  Further, the doctor stated that the Veteran's awareness of his substance abuse history helped his avoid relapsing, and that the Veteran made honest disclosures during the session, which was good in terms of the therapeutic process.  No diagnosis or GAF score was assigned.

A December 2009 VA mental health outpatient psychology individual therapy note showed that the Veteran endorsed experiencing more intensive dreams.  The psychologist stated that they worked on anger management, as the Veteran tended to be passive and, when he reached his upper limit, would blow up aggressively.  A mental status examination revealed the following symptoms:  pleasant with underlying anxiety and congruent affect; organized behavior; good eye contact; voice of normal rate, rhythm, and volume; linear thought process; thought content appropriate to the topic; casual attire; good grooming; no suicidal or homicidal ideations; and cooperative.  The psychologist commented that the Veteran was "making a good commitment to his treatment," and that he was being "helped clearly multimodally."

A follow-up appointment in December 2009 demonstrated that the Veteran reported increased nightmares.  A mental status examination showed that the Veteran's affect was flat; that his mood was congruent to the topics of conversation; that the Veteran initiated topics of conversation; and that he denied suicidal ideations.  

A December 2009 VA mental health psychology group therapy note included a brief mental status examination that showed the following:  a logical thought process; goal-directed thought content; no suicidal or homicidal ideations; no psychotic symptoms; oriented "[times] 4"; fair grooming; fair hygiene; and fair eye contact.  According to a VA mental health outpatient psychiatry medication management note dated the next day, the Veteran endorsed "much improved" sleep, getting 6 to 8 hours per night, for about 1 month, and ending about 1 month prior.  Since then, the Veteran stated that he was achieving 3 to 4 hours of sleep each night, and that he was having increased difficulty with nightmares.  He reported feeling "sluggish," irritable, and "on edge."  He denied suicidal and homicidal ideations.  He endorsed working 15 to 20 hours per month, and reading to pass the time.  A mental status examination showed the following:  appropriate grooming and hygiene; fair eye contact; speech of normal rate and volume; sluggish mood; a somewhat blunted, but not overtly irritable affect; logical, goal-directed thought process; no suicidal or homicidal ideations; no audio or visual hallucinations; and no overt psychosis.  These symptoms were also discussed during another individual therapy session later in December 2009.  

According to a December 2009 VA mental health note, the Veteran expressed concern about his housing.  A mental status examination revealed that the Veteran appeared tired and that his affect and mood were "sad."  The assessment was that the Veteran's depressive symptoms appeared to have increased.

January 2010 VA treatment notes demonstrated that the Veteran endorsed feeling bored and wanting to work, but acknowledging that he should complete his treatment for physical conditions first.  He also stated that he wanted to start exercising and participate in "Upward Bound" in order to improve his computer skills.  However, the Veteran endorsed increased nightmares and daydreaming.  A January 2010 mental status examination showed that the Veteran appeared tired; his affect was flat; and his mood appeared sad.  He was verbal, receptive to feedback, and conversationally "on-track."  The assessment was that the Veteran had verbalized some insight, but that he was struggling with substance abuse relapse issues.  A separate January 2010 mental status examination demonstrated the following symptoms:  pleasant with anxiety and congruent affect; alert; oriented; good eye contact; a voice of normal rate, rhythm, and volume; linear thought process; thought content appropriate to topic; no suicidal or homicidal ideations; cooperative; and good grooming and hygiene.

In relevant part, two February 2010 VA mental health psychology individual therapy notes included mental status examinations that showed the following symptoms:  pleasant with anxiety; casual attire; good eye contact; congruent affect; voice of normal rate, rhythm, and volume; linear thought process; thought content appropriate to topic; no suicidal or homicidal ideations; cooperative; engaged; and intact memory and cognition.  A third February 2010 note demonstrated that the Veteran was verbal, initiated topics of conversation, demonstrated a sense of humor, and demonstrated relatively good eye contact.

A March 2010 VA mental health outpatient psychology individual therapy note demonstrated that the Veteran discussed his inservice behavior.  A mental status examination revealed the following symptoms:  pleasant; alert; oriented; pleasant mood with congruent affect; voice of normal rate, rhythm, and volume; linear thought process; thought content appropriate to topic; no suicidal or homicidal ideations; good eye contact; nicely attired and groomed; and intact memory and cognition.  Comparable findings resulted from a subsequent March 2010 mental status examination.

VA mental health outpatient psychology individual and group therapy notes demonstrated the same or similar symptoms during mental status examinations in April 2010.  However, later than month, the Veteran reported experiencing nightmares 3 to 4 times each week and flashbacks on a near-daily basis.  Additionally, the Veteran endorsed intrusive memories, increased irritability, easier anger, and sleeping about 4 hours each night.  A mental status examination revealed many of the same symptoms, but also showed a hostile mood.

A May 2010 VA mental health outpatient psychology individual therapy note demonstrated that the Veteran reported receiving a new medication for sleeping, which was effective.  He was concerned about the potential addiction.  A mental status examination showed the following symptoms:  alert; oriented; pleasant mood with anxiety; congruent affect; good eye contact; voice of normal rate, rhythm, and volume; good grooming and hygiene; linear thought process; appropriate thought content; no psychosis; no suicidal or homicidal ideations; organized behavior; cooperative; and intact memory and cognition.  The next day, the Veteran reported feeling anxious and angry and experiencing an increased level of paranoia consequent to some interpersonal and staff issue at his place of housing.  Symptoms resulting from a mental status examination remained largely unchanged.

In May 2010, the Veteran provided testimony at an RO hearing as to the severity of his PTSD.  He stated that he experienced sleeping difficulties, nightmares, and flashbacks.  The Veteran also stated that he worked during the week and, thus, only took his sleeping medication on weekends.

In May 2010, the Veteran underwent a VA examination, in part, to assess the severity of his PTSD.  After discussing the Veteran relevant histories and his current treatment regimen, the examiner administered a mental status examination.  This examination revealed the following:  timely arrival; casually dressed; a broad and unrestricted affect; appropriate eye contact; alert; oriented; coherent, relevant, logical, and goal-directed speech; no evidence of an acute psychotic disorder; intact concentration and long-term memory; and abstract function, social judgment, reliability, and insight appeared to be within normal limits.  Additionally, the Veteran stated that he had been sober for 1.5 years.  He endorsed a nervous mood; depression "all of the time"; feelings of guilt; waking up in colds sweats; nightmares; avoidance behavior; diminished interest in activities that involved other people; medicated sleep of 7 to 8 hours; un-medicated sleep of 3 to 4 hours; anger issues; a short fuse; hypervigilance; and an exaggerative startle response.  Further, the Veteran endorsed a history of suicidal ideations 1.5 years ago, but no homicidal ideations.  He denied having any friends and denied engaging in any recreational or leisure activities.  Ultimately, the assessment was anxiety disorder, not otherwise specified, with depressive features, mild.  The examiner assigned a GAF score of 65.

A June 2010 VA mental health note demonstrated that the Veteran complained of ongoing difficulties with nightmares, but "denied any other issues of concern mental health wise."  He stated that he was working overtime, which interfered with some of his treatment sessions.  A subsequent June 2010 note demonstrated that the Veteran reported feeling good emotionally, despite his ongoing struggle with nightmares and insomnia.  He endorsed feeling tired, but that he enjoyed his work because it made him feel good about himself because he was helping others.  The Veteran's symptoms remained unchanged.

A July 2010 VA mental health note demonstrated that the Veteran continued to experience nightmares, and was experiencing stress associated with his work.  He stated that the most difficult aspect of his job was supervising a difficult staff that was not interested in working.  VA mental health notes dated later in July 2010 showed that the Veteran was working full-time and was taking a "construction class," both of which continued to interfere with his course of treatment.  He appeared tired and became defensive at times.  He made impulsive remarks and decisions and had difficulty listening to feedback.  The assessment was that the Veteran was experiencing difficulty balancing treatment with work; appeared impulsive with respect to decision making; demonstrated difficulties thinking through and resolving conflict; and that his irritability had increased.

An August 2010 VA mental health note indicated that the Veteran denied any "significant major issues of concern in regards to mental health."  He endorsed being tired from working in the heat.  Despite consistent reports of not having children, the Veteran then discussed whether he was going to enroll his sons in a private school, but expressed worry that they were not ready to leave military school yet.  A subsequent August 2010 VA health treatment note showed that the Veteran reportedly obtained a full-time position as a supervisor in a pre-apprentice training program.  He stated that he was being paid well and that he was frequently working overtime.  His schedule was from 8:00am to 3:30pm, but said he often worked until 6:00 pm.  A mental status examination was negative with the exception of "some anxiety."  The doctor stated that the Veteran was intensely working, which was a way for him to cope with his PTSD.  The Veteran was pleased to be earning an income and to be able to teach and use his skills.

In September 2010, the Veteran underwent another VA examination.  During the examination, the Veteran stated that he was not currently employed, and that he last worked doing odd jobs.  He attributed his unemployment to his PTSD, for which he previously self-medicated with alcohol, cocaine, and cannabis.  The Veteran reported having no close friends and few acquaintances.  He denied being active involved in any social activity.  He stated that he was married for a short time, but that they have since separated.  He denied having children, and denied legal problems and use of alcohol other drugs since the last VA examination.  He characterized his quality of life as "poor."  A mental status examination revealed the following symptoms:  clean; well groomed; casually dressed; no abnormal motor behavior; normal and response facial expressions; well modulated voice; speech of normal pace and clearly articulated; oriented; logical answers; no evidence of psychosis; no audio or visual hallucinations; fair attention and concentration; no noticeable memory deficits; no suicidal or homicidal ideations; a depressed; anxious; and irritable mood; and a blunted range of affect.  The diagnoses were PTSD; depression, not other specified; and poly-substance abuse/dependence in sustained remission, with a GAF of 58/61.  The examiner further opined as follows:

As a result of his PTSD symptoms, [the Veteran] has experienced an impairment in his ability to function socially with peers, co[-]workers and supervisors as a result of his emotional reactivity and anxiety making it unlikely, had he not been self-employed, to be able to maintain gainful employment as a result of having difficulty interacting with other individuals in a socially appropriate manner.  [The Veteran] has experienced a worsening of symptoms related to his mental health diagnoses as he has ceased abusing substances and is no longer distracting himself and numbing himself with alcohol and other drugs.

In summary, [the Veteran's] PTSD signs and symptoms, along with secondary symptoms of depression result in deficiencies in interactions in the aforementioned areas relating to work, school, family relations and mood.

A November 2010 VA health note demonstrated that the Veteran reportedly purchased a town house and was reportedly promoted at work to a manager's position.  He endorsed feeling good about his progress and was able to focus at work, but stated that he continued to struggle with nightmares and insomnia.

A February 2011 VA outpatient social work individual therapy note showed that the Veteran complained of being continually bothered by nightmares 3 to 4 times each week, and that he only slept 1 hour per day.  He also endorsed hypervigilance, avoidance of crowds, and intrusive thoughts, and expressed a desire to restart individual therapy.  Additionally, the Veteran reported that he was not taking his medication, and that he continued to work as an instructor.  A mental status examination showed the following symptoms:  alert; oriented;  dysphoric mood; congruent affect; good eye contact; voice of a normal rate, rhythm, and volume; good grooming and hygiene; linear thought process; thought content appropriate to topic; no evidence of psychosis; no suicidal ideations; organized behavior; cooperative; and intact memory and cognition.

A March 2011 VA outpatient social work individual therapy note demonstrated that the Veteran continued to work as an instructor.  He expressed a desire to work on his easy irritability and his inability to sleep more than a couple of hours each night.  He endorsed hypervigilance, checking on his car on a frequent basis after work.  The Veteran also endorsed nightmares.  Symptoms resulting from a mental status examination remained unchanged from February 2011.

April and May 2011 VA outpatient social work individual therapy notes demonstrated ongoing symptoms consistent with the Veteran's report and the findings in the February 2011 outpatient social work individual therapy note.

In November 2011, the Veteran provided testimony at a Board hearing about the symptoms associated with his PTSD.  Specifically, the Veteran endorsed hypervigilance; an excessive startle response; paranoia; anxiety; sleep difficulties; and nightmares.  The Veteran stated that he was not married because he could not keep a relationship.  He stated that he was previously married, but that the union last only 6 months because of his symptoms.

During pendency of this appeal, the Veteran was assigned GAF scores of between 51 and 65.  These scores indicate some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but that he generally functioned pretty well, and had some meaningful interpersonal relationships, and moderate symptoms or moderate difficulty in social, occupational or school functioning.  Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record relevant to this time period and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria.  See Carpenter, 8 Vet. App. at 242.  Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered, but is not determinative of the VA disability rating percentage to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  Id.; see also 38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95.

The manifestations of the Veterans PTSD: depression; irritability; sleep difficulties/insomnia; waking up in colds sweats; nightmares occurring up to 4 times per week; "some" anhedonia; flashbacks occurring from "a little bit" to a near-daily basis; intrusive memories; anxiety; hypervigilance; avoidance behavior; nervousness; feelings of guilt; anger; exaggerated startle response, variable mood and variable affect, have been shown to be productive of functional impairment no worse than comparable to occupational decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The Veteran's mood was variable, being described as depressed, anxious, temperamental, on edge, sluggish, sad, hostile, nervous, irritable, and dysphoric.  His affect similarly variable and was determined to be at various time congruent, somewhat blunted, blunted, guarded, flat, sad, and broad and unrestricted.  The Veteran reported experiencing difficulty focusing at the beginning of the appellate period, but it was later determined that his concentration was intact, and that he was able to focus at work.  Further, after the Veteran started working full-time and overtime, which interfered with his treatment, and, after he stopped taking medication, he appeared impulsive with respect to decision making, and demonstrated difficulties thinking through and resolving conflict.  During this period of time, the Veteran also suggested that he engaged in ritualistic behavior, specifically, he stated that he checked on his car on a frequent basis after work.  

Additionally, during the pendency of this appeal, the Veteran discussed how these symptoms affected various aspects of his life.  With respect to his housing situation, the Veteran first reported that his father had recently asked him to leave his home.  The Veteran then reported that he had lived with his father until the house burned down.  Eventually, after participating in a domiciliary program, the Veteran was able to secure housing.  He then stated that he had purchased a town house.

With respect to the Veteran's ability to function occupationally, he stated that he served as a self-employed carpenter for 23 years after his service discharge.  He stated he stopped working in June 2008 due to physical limitations and substance abuse.  Eventually, the Veteran was able to obtain medical clearance for part-time work.  Thereafter, the Veteran reported that he underwent a vocational training course.  He then endorsed working 15 to 20 hours per month.  Further, the Veteran stated that he wanted to work and expressed an interest in participating in a course to improve his computer skills.  The Veteran then started working overtime and reported that he enjoyed his work because it made him feel good about himself because he was helping others.  The Veteran complained that the most difficult aspect of his job was supervising a difficult staff that was not interested in working.  He also reported that he was taking a "construction class."  Subsequently, the Veteran stated that he had obtained a full-time position as a supervisor in a pre-apprentice training program.  He said that he was being paid well and that he was frequently working overtime.  Specifically, the Veteran stated that his schedule was from 8:00am to 3:30pm, but said he often worked until 6:00pm.  The Veteran expressed pleasure in being able to earn an income and to be able to teach and use his skills.  A VA medical care provider stated that the Veteran was intensely working, which was a means to cope with his PTSD symptoms.  Significantly, the Veteran reported that he was promoted at work to manager.  With that said, however, during the September 2010 VA examination, the Veteran stated that he was not currently employed.  He attributed his unemployment to his PTSD.  He stated that he last worked doing "odd jobs."  Thereafter, the Veteran continued to report that he worked as an instructor.  Based on the above, the Board finds that the Veteran's statements as to his employment during the September 2010 VA examination are not credible as they conflict with the evidence of record dated before and after the examination.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (noting that the credibility of statements may be impeached by inconsistent statements and consistency with other evidence).  As such, the Board will not consider them herein.

With respect to romantic relationships, the Veteran first denied ever being married.  He then endorsed a previous marriage, but that the marriage was to a woman who was already married and, thus, their union was "dissolved."  The Veteran mentioned during a treatment session that his girlfriend was supportive of him.  He subsequently stated that he was married for a short time, but that they have since separated.  During the November 2011 Board hearing, the Veteran stated that he was not married because he could not keep a relationship, and that he was previously married, but that the union last only 6 months because of his PTSD symptoms.

Concerning children, the Veteran consistently denied having children.  However, on one occasion, the Veteran discussed whether he was going to enroll his sons in a private school as their mother had requested.  He was worried that they were not ready to leave military school yet.  

As for social and familial relationships, the Veteran endorsed having three close friends.  He later denied having any friends and no close friends, but a few acquaintances.  He stated that he served as his father's caretaker, but was eventually substituted for a relative.

The Veteran's participation in leisure activities varied.  He first denied engaging in any activities.  He then stated that he watched television and read to pass the time.  The Veteran mentioned that he was interested in exercising, but subsequently denied engaging in any recreational, leisure, or social activities.

Based on the above, including the various GAF scores assigned, the Board finds that an initial rating in excess of 30 percent is not warranted because evidence of record does not demonstrate that the symptoms associated with the Veteran's service-connected PTSD more closely approximated the criteria for any of the available higher ratings at any time during the rating period on appeal.  38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012); Fenderson, 12 Vet. App. at 126.  Entitlement to an initial rating in excess of 30 percent requires symptoms productive of functional impairment comparable to the criteria listed in the 50, 70, or 100 percent ratings, or others of similar severity, frequency, or duration, that cause occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment, respectively.  Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013).  

In addition to the symptoms listed above, the Veteran's PTSD was also manifested by the following symptoms:  no suicidal and homicidal ideations; appropriate grooming and hygiene; alert; orientation to person, place, and time; normal appearance; pleasant and cooperative behavior; polite; no abnormal motor behavior; speech of a normal rhythm, rate, and volume; normal flow of thought; a memory that appeared intact; normal concentration; no audio or visual hallucinations; no delusions; good judgment; social judgment that appeared to be within normal limits; fair insight or insight that appeared to be within normal limits; a good appetite; predominantly fair to good eye contact; logical, goal-directed thought process; no overt psychosis; coherent; and an abstract function and reliability that appeared to be within normal limits.  38 C.F.R. § 4.130, Diagnostic Code 9411.  Further, there was no demonstration that the Veteran's PTSD was manifested by the following symptoms or symptoms on the order of:  circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control; spatial disorientation; or intermittent inability to perform activities of daily living.

With respect to symptoms such as impairment of short- and long-term memory and/or memory loss for names of close relatives, own occupation, or own name, the evidence demonstrated that the Veteran experienced some memory issues.  However, the Veteran's memory issues were determined to be a result of a motor vehicle accident, not manifestations of his PTSD.  See Mitleider v. Brown, 11 Vet App 181 (1998) (holding that if non-service symptoms cannot be separated from service connected symptoms, all of the symptoms are treated as service connected).  As such, the Board will not consider the Veteran's memory difficulties as part of his PTSD disability picture.

Consequently, the Board finds that the Veteran's PTSD was not manifested by or nearly approximated symptoms of the kind listed in the 50, 70, or 100 percent requirements, or others of similar severity, frequency, or duration, that cause occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.  As such, the Board finds that the criteria for an initial rating in excess of 30 percent for the Veteran's service-connected PTSD have not been met.  38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411.

Additionally, in making the above determination, the Board acknowledges the use of the term "such as" in 38 C.F.R. § 4.130, Diagnostic Code 9411, which 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, 442 (2002).  Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms associated with the Veteran's PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.  Id.  While the Veteran's PTSD may be manifested by some symptoms that are associated with the higher ratings available, the Board finds that the Veteran's PTSD disability picture did not more nearly approximate the criteria for those ratings.  38 C.F.R. § 4.7.  As such, the Board finds that the criteria for an initial rating in excess of 30 percent for the Veteran's service-connected PTSD have not been met.  38 C.F.R. § 4.130, Diagnostic Code 9411.

Evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993)("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

The Board finds the Veteran's disability picture for PTSD is not so unusual or exceptional in nature as to render the 30 percent rating inadequate.  The Veteran's service-connected PTSD is evaluated as a psychiatric disability, the criteria of which is found by the Board to specifically contemplate the manifestations of the disability at issue and the level of occupational and social impairment caused by this disability.  Id., see also 38 C.F.R. § 4.130, Diagnostic Code 9411.  As determined above, the Veteran's PTSD was manifested by depression; irritability; sleep difficulties/insomnia; waking up in colds sweats; nightmares occurring up to 4 times per week; "some" anhedonia; flashbacks occurring from "a little bit" to a near daily basis; intrusive memories; anxiety; hypervigilance; avoidance behavior; nervousness; feelings of guilt; anger; exaggerated startle response, variable mood, and variable affect.  The Veteran's mood was variable, being described as depressed, anxious, temperamental, on edge, sluggish, sad, hostile, nervous, irritable, and dysphoric.  His affect was similarly variable and was determined to be at various times congruent, somewhat blunted, blunted, guarded, flat, sad, and broad and unrestricted.  Moreover, GAF scores ranged from 51 to 65, which indicated mild to moderate symptoms.

When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's PTSD symptoms are adequately contemplated by the 30 percent disability rating.  Ratings in excess of 30 percent are provided for greater functional impairment due to manifestations of PTSD, but the medical evidence of record does not demonstrate that such manifestations are present in this case.  The criteria for the initial 30 percent disability rating reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate.  See 38 C.F.R. § 4.130, Diagnostic Codes 9411.

Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning an initial evaluation in excess of 30 percent for his service-connected PTSD, the doctrine is not for application.  Gilbert, 1 Vet. App. at 54-56 (1990); see also Fenderson, 12 Vet. App. at 126.


ORDER

Service connection for right knee chondromalacia is granted, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for residuals of a jaw fracture is denied.

An initial rating in excess of 30 percent for PTSD is denied.


REMAND

A.  Left Knee Disorder and Bilateral Trench Foot

Preliminarily, the Board observes that the evidence of record does not include a diagnosis of "trench foot."  However, as the result of a June 2010 VA examination, the diagnoses were bilateral onychomycosis and bilateral keratoderma.  As such, the Board will address the Veteran's claim of entitlement to service connection for "trench foot" with consideration of these disorders.  See Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (finding that a claimant's identification of the benefit sought does not require any technical precision but may satisfy this requirement by referring to a body part or system).

The Veteran was afforded a June 2010 VA examination pursuant to his claims of entitlement to service connection for a left knee disorder and bilateral "trench foot."  Ultimately, with respect to a left knee disorder, the examiner opined as follows:

The degenerative arthritis of the left knee is less likely than not related to the [V]eteran's military service based on the fact that there were no complaints of chronic left knee pain and no significant injuries to the left knee while in the service.  There were no complaints of any left knee pain until a twisting injury in July 2000.

With regard to the Veteran's bilateral "trench foot," the examiner opined as follows:

It is less likely than not that the [V]eteran's onychomycosis and keratoderma are related to the [V]eteran's service, since there was no indication of any foot complaints, other than an injury to the right foot in June 1981 which was due to a bruise.  There were no complaints of any foot pain until March 2004.

The VA examiner based the June 2010 opinions on the observation that the Veteran's service treatment records did not demonstrate left knee or foot complains.  With that said, however, the June 2010 VA examiner acknowledged that a November 1979 service treatment record demonstrated that the Veteran reported striking his left knee on a military vehicle.  A physical examination on that occasion demonstrated that the Veteran's left knee was "essentially normal."  The assessment was "contusion."  In addition to the November 1979 inservice incident, during the November 2011 Board hearing, the Veteran stated that he participated in kickboxing and was required to engage in prolonged road marches wearing tight-fitting boots during his active duty service.  Further, the Veteran stated that his feet were constantly wet during his service in Korea.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that personal knowledge is that which is perceived using the senses).  The Veteran claimed that the impacts involved in kickboxing injured his left knee and that this injury was worsened by marching, and claimed that his current "trench foot" was due to constant exposure to moisture.  The June 2010 VA examiner did not consider these assertions during the June 2010 VA examination and, thus, the Board finds that the June 2010 VA examiner's opinion was predicated on an incomplete or inaccurate factual premise.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).  Consequently, the Board finds that the June 2010 VA examination is inadequate for purposes of determining the Veteran's entitlement to service-connection for a left knee disorder and bilateral "trench foot."

"Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  As such, the Board finds that remanding the Veteran's claims of entitlement to service connection for a left knee disorder and bilateral "trench foot" is required in order to obtain a supplemental opinion or to afford the Veteran a new VA examination.

B.  Bilateral Pes Planus

A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the appellant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

During a November 2011 Board hearing, the Veteran asserted that he had bilateral pes planus prior to entering military service and that this disorder was aggravated therein.  Specifically, the Veteran asserted his pes planus was aggravated by prolonged road marches, the effects of which he asserted were made worse by ill-fitting boots.  

With respect to a current disability, a February 2010 VA outpatient podiatry note indicated clinical findings of a partial collapse of plantar arch, bilaterally, with positive Helbing's sign, bilaterally, consistent with functional pes planus deformity.

Based on the above, the Board finds that there is an indication that there may be an association between the Veteran's current bilateral pes planus and his active duty service, but that the evidence of record is insufficient to make a decision on the claim.  As such, to satisfy VA's duty to assist, the Board finds that a remand is required in order to afford the Veteran a VA examination and to obtain an etiology opinion in this regard.  Id.; see Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes).

In making this determination, the Board acknowledges that the Veteran was afforded a VA examination in June 2010 wherein the Veteran's feet were assessed.  This examination did not, however, address the Veteran's bilateral pes planus.  Instead, the June 2010 VA examination was limited to assessing the Veteran's bilateral onychomycosis and keratoderma.  As such, the Veteran has not been afforded a VA examination with respect to his claim of entitlement to service connection for bilateral pes planus.

C.  TDIU

Although the most recent evidence of record demonstrated that the Veteran had obtained full-time employment as a manager, the evidence of record also demonstrated that the Veteran was unemployed during the pendency of this appeal.  During that period, the Veteran asserted his unemployment was due, in part, to his service-connected PTSD.  As such, the Board finds that the issue of entitlement to TDIU was reasonably raised.

The determination of whether the Veteran is entitled to TDIU is part and parcel of the determination of whether he is entitled to an increased rating for PTSD at issue herein.  Rice, 22 Vet. App. at 453; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749.  Generally, all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  As the issue of entitlement to TDIU is "intertwined" with the issue of entitlement to an increased initial rating for PTSD, but was not addressed by the RO, the claim is remanded to the RO in accordance with the holding in Harris for development.


Accordingly, the case is remanded for the following actions

1.  The RO must provide notice and assistance to the Veteran with respect to his claim of entitlement to TDIU.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2012).

2.  The RO must make available the Veteran's claims file, and virtual VA clinical records, to the VA examiner who administered the June 2010 VA examination, and ask that supplemental opinions be provided.  After reviewing the claims file, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed left knee disorder and/or bilateral foot onychomycosis and keratoderma was/were caused by or otherwise related to his military service.  In providing these opinions, the examiner must address the Veteran's lay statements as to inservice events, including that his feet were constantly exposed to moisture in service.  The examiner must fully explain the rendered opinion, including a thorough underlying rationale for any conclusion reached.

3.  If, and only if, the June 2010 VA examiner is not available to render the above-requested supplemental opinion, the RO should schedule the Veteran for a new examination.  The RO must make available the Veteran's claims file, and virtual VA clinical records, to the VA examiner.  That examiner is asked to examine the Veteran, including conducting all necessary testing, and then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed left knee disorder and/or bilateral foot onychomycosis and keratoderma was/were caused by or otherwise related to his military service.  In providing this opinion, the examiner must address the Veteran's lay statements as to inservice events, including that his feet were constantly exposed to moisture in service.  The examiner must fully explain the rendered opinion, including a thorough underlying rationale for any conclusion reached.

4.  The RO should schedule the Veteran for a VA examination with respect to the Veteran's bilateral pes planus.  The RO must make available the Veteran's claims file, and virtual VA clinical records, to the VA examiner.  The examiner is asked to examine the Veteran, including conducting all necessary testing, and then provide opinions as to:

(a.)  Whether clear and unmistakeable evidence of record establishes that the Veteran's currently diagnosed bilateral pes planus pre-existed his active duty service, and;

(b.)  Whether clear and unmistakeable evidence of record establishes that the Veteran's currently diagnosed bilateral pes planus was NOT aggravated by his military service?  

(c.)  Whether it is at least as likely as not (50 percent probability or greater) that bilateral pes planus was caused by or otherwise etiologically related to his military service?

In providing these opinions, the examiner must address the Veteran's lay statements, including his assertion that pes planus pre-existed service.  The examiner must fully explain the rendered opinions, including a thorough underlying rationale for all conclusions reached.

5.  The RO should advise the various VA examiners that, in providing the requested opinions, the term "at least as likely as not" does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim.

Further, "aggravation" means the permanent increase of severity of a disorder beyond the natural progression thereof.

6.  The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).

7.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be re-adjudicated, to include contemporaneous adjudication of the Veteran's claim of entitlement to TDIU.  If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review.

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs