Citation Nr: 1314320	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  10-40 689	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine with L4-S1 disc bulging.

3.  Entitlement to a compensable initial rating for retropatellar pain syndrome of the right knee.

4.  Entitlement to a compensable initial rating for retropatellar pain syndrome of the left knee.

5.  Entitlement to a compensable initial rating for talofibular ligament strain of the left ankle.

6.  Entitlement to a compensable initial rating for plantar fasciitis of the left foot.

7.  Entitlement to a compensable initial rating for hemorrhoids.
8.  Entitlement to a compensable initial rating for residual scars status post fracture of the left tibia with tibial fixation.

9.  Entitlement to a compensable initial rating for migraines.

10.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Allan Gumpenberger, Agent


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1999 to July 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

The issues of entitlement to a compensable initial rating for plantar fasciitis of the left foot, entitlement to a compensable initial rating for residual scars status post fracture of the left tibia with tibial fixation, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The Veteran's PTSD is manifested by depression with intermittent crying episodes, anxiety, anger, irritability, occasional panic attacks, frequent nightmares, intrusive recollections, sleep difficulty, poor concentration and attention, exaggerated startle response, avoidance behaviors, and feeling alienation from others.  Objectively, the Veteran maintained adequate hygiene and grooming, and was fully-oriented, cooperative, attentive and pleasant.  He exhibited variable mood and mildly constricted affect; fair insight, judgment and impulse control; and coherent, logical and goal-directed thought process.  No suicidal or homicidal ideation, hallucinations, delusional thinking or inappropriate behaviors were shown.

2.  The Veteran's degenerative disc disease of the lumbar spine with L4-S1 disc bulging is manifested by subjective complaints of pain, stiffness, fatigue, spasm, and weakness and limitation of motion, at most, to 60 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion to the left, 20 degrees of lateral flexion to the left, and 25 degrees of bilateral lateral rotation; the combined range of motion of the thoracolumbar spine, at the least, was 180 degrees.  Forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine was not shown.

3.  The Veteran's retropatellar pain syndrome of the bilateral knees is manifested by painful motion and normal range of motion consisting of flexion of 140 degrees and extension of 0 degrees even taking into account his complaints of pain.  No manifestations of instability, mal union of the tibia and fibula, removal of or dislocation of the cartilage, or X-ray evidence of arthritis are shown.

4.  The Veteran's left ankle talofibular ligament strain is manifested by occasional pain with motion, but normal range of motion.

5.  The Veteran's hemorrhoids are not productive of large or thrombotic hemorrhoids which are irreducible with excessive redundant tissue.

6.  The Veteran's migraines are manifested by prostrating attacks accompanied by blurred vision, photophobia, phonophobia, nausea and occasional vomiting and occurring at least once per month.  Severe economic inadaptability has not been shown.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating greater than 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).

2.  The criteria for an initial rating of 20 percent, but no greater, for degenerative disc disease of the lumbar spine have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012).

3.  The criteria for an initial rating of 10 percent, but no greater, for the Veteran's retropatellar pain syndrome of the right knee have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260 (2012).

4.  The criteria for an initial rating of 10 percent, but no greater, for the Veteran's retropatellar pain syndrome of the left knee have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260 (2012).

5.  The criteria for an initial rating of 10 percent, but no greater, for the Veteran's talofibular ligament strain of the left ankle have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5271 (2012).

6.  The criteria for a compensable initial rating for hemorrhoids have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012).

7.  The criteria for an initial rating of 30 percent, but no greater, for migraines have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant 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 claimant 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 Veteran's claims concerning the proper disability ratings to be assigned to his service-connected disabilities at issue arise from his disagreement with the initial disability ratings assigned to these conditions following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice as to these claims is needed under VCAA.  

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained the Veteran's service treatment records, as well as his post service medical records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any records relating to the Veteran are available from the Social Security Administration.  See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  VA examinations were conducted in May and June 2009 and July 2011.  38 C.F.R. § 3.159(c)(4).  Each examiner conducted a physical examination, recorded clinical findings, and documented the Veteran's subjective complaints.  As these examinations included sufficient detail as to the current severity of his service-connected disabilities, the Board concludes that these examinations are adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Although the VA PTSD examinations obtained in July 2011 indicated that the Veteran's claims file was not available for review, the Board finds that this does not constitute a prejudicial error.  Here, an increase in the disability ratings is at issue and the present level of the Veteran's service-connected disability is of primary concern.  As it would not change the objective and dispositive findings made during the VA examination, review of the claims file was not required.  See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012).

Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder.  However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  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.

Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

PTSD

Service connection for PTSD was granted in an August 2009 rating decision, and a 30 percent initial disability rating was assigned effective July 9, 2009 under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411.  Subsequently, in a July 2010 rating decision, the RO increased the initial disability rating for PTSD to 50 percent effective July 9, 2009.

The Veteran's service-connected PTSD is evaluated as 50 percent disabling under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411.  Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue.  However, 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).

Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting; inability to establish and maintain effective relationships.).

A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

The Board notes that the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including (if applicable) those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).  See Mauerhan, 16 Vet. App. 436.  Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).  While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders.  See Massey v. Brown, 7 Vet. App. 204, 207 (1994).

According to DSM-IV, a GAF score ranging from 31-40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school).  A GAF score of 41-50 reflects 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 score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers).  A GAF score of 61-70 denotes some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  A GAF score of 71-80 indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  

The Veteran was provided a VA mental disorder examination in June 2009.  The Veteran complained of PTSD symptoms since returning from his last deployment in December 2007.  He indicated that he had nightmares frequently and although he did not remember the content of the nightmares he frequently woke up in a cold sweat.  He stated that he was much more emotional than he had been in the past and tended to break down crying at minor stressors.  He woke up almost every night and stayed up for a couple of hours before he could go back to sleep.  He also experienced emotional avoidance and indicated that he tended to ignore his wife and tuned her out at times.  He reported a decreased ability to concentrate and losing his train of thought during conversations.  He reported feelings of alienation from family and friends and becoming angry when family and friends did not understand what he had been through.  He indicated an increased startle response to loud noises.  He was referred to mental health due to anger and irritability at work.  His wife also indicated that he was angrier and had no patience with routine events that happened at home.

On mental status examination, the Veteran was casually dressed with adequate hygiene and grooming.  He was cooperative, attentive, and pleasant during the examination.  Speech was of normal productivity and rate; volume of speech was appropriate; and he spoke in an articulate manner.  His stated mood was "pretty good."  His affect appeared stable and appropriate though mildly constricted.  The Veteran reported chronic insomnia in that he got only about 3 to 4 hours of sleep per night whereas normal for him was about 7 hours per night.  He noted feelings of alienation toward family and friends.  He stated that he was feeling better because he was coaching his son's baseball team.  He denied suicidal or homicidal ideation.  There were no signs or symptoms of mania or significant anxiety, except symptoms of PTSD as reported.  Thought processes were coherent, logical, and goal-directed.  The Veteran reported no experiences of hallucinations and there were no signs of delusional thinking.  The Veteran's diagnostic test score was indicative of some cognitive impairment.  He had some difficulty with attention, concentration, and short-term memory.  

The VA examiner noted that the Veteran met the criteria for PTSD.  The Veteran was able to maintain activities of daily living, including personal hygiene.  He had not experienced significant trauma since his last deployment to Iraq and there had not been worsening of his condition.  There had not been significant remissions during the previous year; symptoms were continuous.  He did not have problems with drug and alcohol abuse.  No inappropriate behavior was shown.  He was in treatment with no response.  The examiner found that the Veteran's thought processes and communication were not impaired and that his social functioning was mildly impaired.  The Veteran reported decreased patience with coworkers and feelings of alienation from family and friends.  The examiner also found that the Veteran's employment was impaired.  Although there had been no regular routine on the job for the Veteran in the previous six months, he reported that he would be unable to do his normal duties in the Army due to increased irritability and lack of patience.  The examiner anticipated that the Veteran would have difficulty with employment after leaving the Army due to his impatience and irritability.  Other mental conditions were not found.  The examiner further noted that residual symptoms of attention deficit hyperactivity disorder (decreased concentration and loss of train of thought during conversations) were likely aggravated by PTSD.  The Veteran was found competent to handle VA funds.

The DSM-IV diagnosis was PTSD on Axis I, and a GAF score of 55 was listed.  As regards the severity, the examiner stated that there was reduced reliability and productivity due to PTSD signs and symptoms; examples include irritability and lack of patience on the job leading to inability to perform military duties at the present time.  The examiner further stated that symptoms did not presently require continuous medication but a medication evaluation seemed warranted.  

In a November 2009 traumatic brain injury (TBI) consultation report, the Veteran reported symptoms of poor concentration, inability to pay attention, forgetfulness, difficulty making decisions, slowed thinking, difficulty getting organized, inability to finish things, difficulty falling or staying asleep, feeling anxious or tense, feeling depressed or sad, irritability, poor frustration tolerance, and feeling easily overwhelmed, among others.

A December 2009 VA TBI evaluation-social work note stated that the Veteran was a full-time student and that he reported that overall, classes were going well.  He was currently unemployed.  The Veteran denied psychiatric history or hospitalizations.  He lived with his wife and 8 year old step-son.  He indicated that they had a very good relationship and reported a good support system through his wife and her family who lived locally.  He stated that his family lived in Texas but he had not talked to them in 5 years.  He denied any legal issues.  He denied suicidal or homicidal ideation and reported no history of suicide attempts.  He indicated that his goal was to finish college and to buy a house.  The examiner assessed that the Veteran appeared to be functioning fairly well.

In a January 2010 VA mental health consultation report, the Veteran reported doing well and stable.  He was very talkative and able to be interrupted, which the examiner thought was possible hypomania/mixed episode to be determined over course of treatment.  The Veteran explained that his marriage to his current wife was going very well, that they had four years of marriage, with a stepson.  The Veteran got a great deal of enjoyment out of marriage and fatherhood.  He reported ongoing sleep problems, distractibility, irritability, and difficulty concentrating.  He further reported feeling depressed throughout the day, but intermittently.  Sometimes, he was doing very well.  In the past five years, the Veteran stated that his mother and step-father asked him to leave their home in Texas and not talk to them, and the Veteran stated that this was very hurtful to him.  He was enrolled in school, with clear goals, and saw himself as motivated with future plans.  No suicidal or homicidal ideation or auditory or visual hallucination was shown.  Objectively, the Veteran showed pressured and rapid speech.  He was also having intermittent crying episodes, with irritability and high emotional content.  It was noted that the Veteran seemed to be staying positive and adapting well back into civilian life.  The diagnoses were mood disorder, not otherwise specified, rule out PTSD, and rule out bipolar disorder.

In a February 2010 VA mental health medication initial visit note, the Veteran reported frequent headaches, poor concentration, wandering attention, mostly depressed mood, but with days when he felt euphoric, "like superman," sleeping fitfully with waking often in a sweat, anxious, and fearful and thrashing about at night.  He had intrusive recollection of what he witnessed in Iraq.  On mental status examination, the Veteran was alert, well-groomed, eager, and animated.  His speech was productive, rapid, and fluent.  His mood was "depressed" his affect was labile, often smiling while eyes welled up with tears.  His thought process was circumferential.   No suicidal or homicidal ideation or psychosis was shown.  The assessment and diagnosis were PTSD and mood disorder, not otherwise specified.
The March 2010 VA mental health treatment plan note, the Veteran was doing very well.  He reported feeling much better lately, but still struggling with sleep, emotion dysregulation, sadness, and anger management.  He reported getting easily frustrated, and stated that he was mostly impatient with 8 year old step-son.  He was sleeping well on medication, but reported one incident of waking, going to the bathroom, getting a rush of cold sweats, dizziness, then returning to lay down and going right back to sleep and feeling fine in the morning.  The Veteran had problem of emotional dysregulation, as evidenced by some hypomania, tearfulness, pressure to speak, high energy, and periods of intense sadness and depressed mood without the anhedonia and loss of energy.  Overall, the Veteran felt that other than anger management and impatience, he was doing fairly well.  There was no suicidal or homicidal ideation or auditory or visual hallucinations.  It was noted that avoidance was really lessening, and the Veteran was able to talk about many aspects of the war with the VA examiner, including emotional content.  The Veteran's goals were to decrease the impact that previous traumatic events had on his current life (including intrusive thoughts, avoidance/numbing and social withdrawal, increased arousal, sleep disturbances, depression and guilt).  The DSM IV diagnoses were bipolar-mixed disorder and PTSD, and a GAF score of 57 was listed.

The Veteran was provided another VA PTSD examination in July 2011.  The examiner first noted that the Veteran's educational accomplishments that he was certified in fiber optics and fusing fiber optics.  As regards martial, family and social relationships, the Veteran was married twice and his current marriage was of 7 years with one stepson of age 10.  He reported having a good relationship with his stepson and coaching his baseball and basketball team but stated that his marital relationship was strained due to his work travel.  He reported having buddies at work noting that they lived together and worked together as he and his co-workers frequently traveled for their work.  He stated that when he was home he enjoyed playing sports with his son.  He was currently working out as a means of past time and he had recently reestablished his relationship with his father and spent more time with his father.  He denied any history of suicide attempts or violence/assaultiveness.  With regard to his current psychosocial functional status, the Veteran described his current psychosocial functioning as "I'm a pretty emotional guy," and stated that "a few things are going better like my relationship with my step son and dad."  There were no issues associated with alcohol or substance use.

On mental status examination, the Veteran was casually dressed and with unremarkable psychomotor activity and speech.  He was cooperative toward the examiner.  He exhibited normal affect, good mood, and attention disturbance (short attention span).  He was fully oriented, and his thought process and content were unremarkable.  He understood the outcome of behavior and that he had a problem.  His intelligence was average.  He reported sleep impairment with late onset and early termination of sleep and having nightmares and dreams that were combat related.  He awakened in fear and panic; he got an average of 2 to 4 hours of sleep a night.  No delusions, auditory hallucinations, or inappropriate behavior were shown.  He reported obsessively cleaning his house and car and brushing his teeth 3 to 4 times in the morning.  He noted that he would be bothered if he were not able to do those things and would begin to feel depressed.  He reported getting panic attacks from time to time and feeling panicky if he could not figure something out and when he could not complete something.  He would begin sweating and turning red with his heart racing.  He denied homicidal or suicidal thoughts, or episodes of violence.  It was noted that his impulse control was fair.  He reported having difficulty at work getting into conflicts with co-workers and that he had been written up for disciplinary reason due to his temper.  He was able to maintain minimum personal hygiene.

The examiner found that there was no problem with activities of daily living, such as household chores, toileting, grooming, shopping, self-feeding, bathing, dressing, engaging in sports and exercise, traveling and other recreational activities, but there was a severe problem with driving due to the Veteran's increased irritability and his avoidance of people and crowds.  His remote and immediate memory was normal but his recent memory was mildly impaired.  The Veteran reported PTSD symptoms of late onset and early termination of sleep, poor concentration, difficulty with co-workers, increased anxiety and irritability, and avoidance of crowds and his psychometric scores were consistent a diagnosis of "severe" PTSD.  

The examiner noted that the Veteran was capable of managing his financial affairs.  His usual occupation was in communications and fiber optics and he was currently employed full-time as a SIPER net installer for less than a year.  He missed less than a week from work during the previous 12 month period due to lack of sleep.  The problems related to occupational functioning included decreased concentration, increased absenteeism, and poor social interaction.  The DSM-IV diagnosis was PTSD, and a GAF score of 55 was listed.

The examiner noted that since the Veteran's previous VA examination, he secured employment and had increased occupational conflict, martial conflict, late onset and early termination of sleep, increased fatigue, avoiding crowds, and poor concentration.  However, since his last examination, his overall functioning improved in some areas including his relationship with his father, but declined in others such as his sleep difficulties and increased nightmares.  There was reduced reliability and productivity due to PTSD symptoms such as difficulties with his co-workers and his being written up for disciplinary reasons.  Socially, he had an increase in arguments with his wife and increased irritability towards others.  He did not have a co-occuring current drug/alcohol problem.  The examiner found that there was no total occupational and social impairment; or deficiencies in the areas of judgment, thinking, family relations, work, mood or school, due to PTSD signs and symptoms.  However, the examiner found that there was reduced reliability and productivity due to PTSD signs and symptoms.

Based on a thorough review of all of the evidence of record, as outlined above, the Board finds that the Veteran's total disability picture most closely approximates the criteria for a 50 percent disability rating.  38 C.F.R. § 4.7 (2012).  In reaching this determination, the Board finds it significant that the VA examiners and physicians, who conducted a comprehensive psychiatric assessment of the Veteran, diagnosed PTSD, and estimated that his GAF scores were 55 to 57, which, as discussed above, is indicative of moderate symptoms such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as few friends, conflicts with peers or co-workers.  Furthermore, the Veteran's symptomatology of depression with intermittent crying episodes, anxiety, anger, irritability, occasional panic attacks, frequent nightmares, intrusive recollections, sleep difficulty, poor concentration and attention, exaggerated startle response, avoidance behaviors, and feeling alienation from others, are compatible with a GAF score in the 50s.

In short, the Board finds that the Veteran's PTSD results in occupational and social impairment comparable to no worse than reduced reliability and productivity due to such symptoms as depression with intermittent crying episodes, anxiety, anger, irritability, occasional panic attacks, frequent nightmares, intrusive recollections, sleep difficulty, poor concentration and attention, exaggerated startle response, avoidance behaviors, feeling alienation from others, variable mood, mildly constricted affect, and fair insight, judgment, and impulse control.

However, while a 50 percent rating is warranted, the Veteran's total disability picture does not rise to the severity required for a 70 percent or higher rating.  In this regard, the Board finds it significant that the Veteran's speech and communication were normal at his VA examination and VA treatment sessions.  The June 2009 VA examiner indicated that the Veteran's speech was normal and that he spoke in an articulate manner.  The March 2010 VA mental health treatment plan note stated that the Veteran was able to talk about any aspects of the war with the VA examiner, including emotional content.  On the July 2011 VA examination, the Veteran had unremarkable speech and was cooperative toward the examiner with normal affect and good mood.  The Veteran's appearance, hygiene, and behavior were noted as appropriate at all times.  Furthermore, although the Veteran, on the July 2011 VA examination, reported occasional panic attacks when he could not figure out or complete something, there was no indication from the claims file that the Veteran is in a nearly continuous state of panic.  The record is devoid of evidence indicating that the Veteran has had any episode of violence or active aggression.  Lastly, there is no indication that the Veteran is delusional, grossly inappropriate, disoriented, in persistent danger of hurting himself or others, or is unable to perform the activities of daily living.  In fact, VA clinicians and examiners consistently assessed that the Veteran was functioning fairly well.  The record reflects that he stayed positive and adapted well back into civilian life since his separation from service.  On mental status examinations, the Veteran has exhibited variable mood and mildly constricted affect; normal or pressured speech; average intelligence; fair insight, judgment, and impulse control; and coherent, logical, and goal-directed thought process.  No suicidal or homicidal ideation, hallucinations, delusional thinking or inappropriate behaviors were shown.

Although on the July 2011 VA examination, the Veteran reported some obsessive behaviors, such as obsessively cleaning his car and house and brushing his teeth, the Board finds that the reported instances are not extreme in nature.  Further, while the Board recognizes that obsessive and ritualistic behavior is listed as an example of symptoms warranting a 70 percent evaluation, as discussed above, the symptoms listed in the 38 C.F.R. § 4.130 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.  See Mauerhan, 16 Vet. App. at 442.

In this regard, the Board notes that the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code, but it must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment.  The Board concludes that the Veteran's PTSD symptomatology affecting the level of his social and occupational functioning level is in the moderate range in this case.  The June 2009 VA examiner found that the Veteran's social functioning was mildly impaired due to decreased patience with coworkers and feelings of alienation from family and friends.  However, the Veteran has been married for over 7 years with a son, and although he indicated that he could be irritable and impatient with his family members, he reported a good relationship with them.  He also reported that he coached the son's baseball and basketball teams, enjoyed playing sports with his son, and derived a great deal of enjoyment out of his marriage and fatherhood.  On the December 2009 VA TBI evaluation note, he specifically indicated that he had a very good relationship with his wife and a good support system through his wife and her family who lived locally.  Recently, he had reestablished his relationship with his father and was spending more time with his father.  He also reported having "buddies" at work noting that they lived and worked together as they frequently traveled for their work.  Accordingly, while the Veteran has shown some difficulty in social relationships, he has also demonstrated that he is able to establish and maintain effective relationships, such as his over 7 year long marriage to his wife and good relationships with his son and friends.

With regard to occupational functioning, the Veteran reported on the May 2009 VA examination that he would be unable to do his normal duties in the Army due to increased irritability and lack of patience with coworkers; the examiner assessed that the Veteran's employment was impaired in that he would have difficulty with employment after leaving the Army due to his irritability and lack of patience.  In this regard, the record certainly reflects reduced reliability and productivity due to PTSD signs and symptoms.  However, VA social worker's notes in December 2009 and January 2010 indicate that the Veteran was enrolled in school full-time and that he was functioning fairly well on his classes.  The Veteran had clear goals and saw himself as motivated with future plans.  The July 2011 VA examiner noted the Veteran's educational accomplishments, such as obtaining certification in fiber optics and fusing fiber optics.  The report also reflects that the Veteran started working full time for less than a year.  The Veteran experienced problems related to occupation functioning due to decreased concentration, increased absenteeism and poor social interaction.  He reported having difficulty at work getting into conflicts with coworkers and being written up for disciplinary reason due to his temper.  Nevertheless, based on the foregoing evidence, although some impairment in occupational functioning is shown, inability or total occupational impairment is not shown.

The Board also finds significant that the July 2011 VA examiner specifically found that there was no total occupational and social impairment; or deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to manifestations of PTSD, which consistent with the other medical evidence of record as well as the Veteran's lay testimony of record.

Accordingly, considering all of the evidence of record, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the 50 percent disability rating, and therefore the 50 percent rating is the appropriate rating in this case.  38 C.F.R. § 4.7.

Lumbar Spine

The Veteran's degenerative disc disease of the lumbar spine with L4-S1 disc bulging is currently rated under Diagnostic Code 5242.  Diagnostic Code 5242 directs that degenerative arthritis of the spine be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  Under the General Rating Formula, a 10 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a, General Rating Formula.  A 20 percent evaluation is for application when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.  A 40 percent rating for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.  Id.

When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain).  In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id., at 206.  Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements.  Factors involved in evaluating and rating disabilities of the joints include: weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.

The Veteran underwent a VA general medical examination in May 2009.  He reported low back pain which felt like a dull paresthesia from the hips and to the thighs but the examiner noted that it was no typical pain in the dermatomal kind of a distribution to suggest any acute radiculitis clinically.  Current treatment included physical therapy, home exercise program, and safety precautions.  He was not doing any sports activities, but did simple walking or simple running at his own pace.  He indicated that prolonged sitting in one place for 20 to 30 minutes sometimes was difficult, and he had to get up and move around.  If he was driving in a vehicle, he would have to stop to stretch his back every two hours.  The Veteran related that treatment with physical therapy and home exercise program helped but the pain was present minimal to mild daily and could be aggravated even 1 to 16 times a month.  In spite of the profile he still worked wherever he wanted to whether in the job or in the activities of daily livings, but within the limits of tolerance.

On physical examination, the Veteran's gait was normal, with no limping, listing, foot drop, or foot drag.  Bilateral weight bearing was within normal limits.  No brace was used and standing position was normal.  Romberg test was negative.  Heel-toe coordination was intact.  Examination of the lumbar spine revealed mild stiffness in the beginning.  Pain was at 1 on a scale of 1 to 10.  Range of motion included initial flexion from 0 to 80 degrees, but with pain from 60 and 80 degrees; extension from 0 to 25 degrees, with pain between 10 and 25 degrees; left lateral bending from 0 to 30 degrees, with pain between 15 and 30 degrees; lateral bending to the right from 0 to 30 degrees, with pain between 20 and 30 degrees; and bilateral lateral rotation from 0 to 45 degrees, with pain between 40 and 45 degrees, bilaterally.  With the Deluca test, a moderate lumbar curve reversal was noted.  Trendelenburg test was negative.  It was noted that pain reached 4 on a scale of 1 to 10 and evidence of impaired endurance was also noted.  Range of motion decreased, with forward flexion to 72 degrees, extension to 15 degrees, left lateral bending to 22 degrees, right lateral bending to 22 degrees and lateral rotation, bilaterally, to 42 degrees.  McBride, Waddell, Burns tests were negative.  The diagnosis was L5-S1 disc bulging, L4-L5 disc bulging, a L1 vertebral body hemangioma and a subtle L5 spondylolysis and subtle L5-S1 grade 1 anterolisthesis residual recurrent episodic pains, with no clinical signs and symptoms of acute radiculitis.

The Veteran underwent a VA spine examination in July 2011.  He reported experiencing daily low back pain with stiffness and radicular pain down both legs, numbness and tingling.  He denied a history of urinary or bowel movement problems or erectile dysfunction but reported history of numbness, paresthesias, and leg or foot weakness.  He also reported fatigue, stiffness, weakness, spasm, and spine pain.  He reported 7 to 8 incapacitating episodes of spine disease during the past 12 month period and that his walking was limited to half a mile.

On physical examination, his gait was normal and no abnormal spinal curvature, such as gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, listing, scoliosis, was shown.  There was no thoracolumbar spine ankylosis.  Objectively, there was no spasm, atrophy, guarding, or weakness but pain with motion and tenderness were shown.  There was no muscle spasm, localized tenderness or guarding severe enough to be responsible to abnormal gait or abnormal spine contour.  The range of motion included flexion to 80 degrees; extension to 30 degrees; lateral flexion to 25 degrees, bilaterally; and lateral rotation to 25 degrees, bilaterally.  There was objective evidence of pain on active motion but there was no additional limitation after three repetitions.  The diagnosis was degenerative disc disease of the lumbar spine.  The Veteran reported currently being employed full time as an IT installation technician for six months and that he missed one week in the previous six months due to back problems.  As to the effects of the back condition on his occupational activities, the Veteran stated that he was assigned different duties due to problems with lifting and carrying and pain.  As to the effects on the usual daily activities, the Veteran was unable to perform chores which required repeated back bending, heavy lifting or carrying.

After consideration of the pertinent evidence of record, the Board concludes that an initial rating of 20 percent is warranted for the Veteran's lumbar spine disability.  See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5242 (2012).  The Veteran's lumbar spine disability was manifested by subjective complaints of pain, stiffness, fatigue, spasm, and weakness, and limitation of motion, at most, to 60 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion to the left, 20 degrees of lateral flexion to the right, and 25 degrees of bilateral lateral rotation.  In making these findings, the Board used the evidence most favorable to the Veteran, including the range of motion before pain was indicated on the May 2009 VA examination.

However, a rating greater than 20 percent is not warranted as there is no evidence of 30 degrees or less of forward flexion or ankylosis of the thoracolumbar spine.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citations omitted) (defining ankylosis as "immobility and consolidation of a joint due to disease, injury, surgical procedure").  Rather, the evidence clearly demonstrates that the Veteran continued to retain motion in his back with at least 60 degrees of forward flexion.  As there was clearly motion, the medical evidence of record simply does not show ankylosis of the entire thoracolumbar spine, required for the assignment of the next higher evaluation.  See 38 C.F.R. § 4.71a, General Rating Formula.

Additionally, the medical evidence of record does not show that the Veteran's lumbar spine disability increased in severity in terms of limitation of motion due to pain.  See 38 C.F.R. §§ 4.40, 4.45; Deluca, 8 Vet. App. at 206.  On the May 2009 VA examination, the overall range of motion decreased and increased pain was shown on repetitive motion; however, the range of motion still consisted of forward flexion to 72 degrees, extension to 15 degrees, left lateral bending to 22 degrees, right lateral bending to 22 degrees and lateral rotation, bilaterally, to 42 degrees.

Further, the July 2011 VA examiner specifically noted that although there was objective evidence of pain on active motion, there no additional limitation after three repetitions.  Accordingly, the Board finds that additional limitation of motion due to pain, fatigue, weakness, or lack of endurance beyond that contemplated by the rating assigned herein for the Veteran's lumbar spine disability has not been shown.  Accordingly, a rating greater than 20 percent is not warranted on this basis.

Consideration has been given to whether there are any neurologic manifestations of the Veteran's service-connected lumbar spine disability warranting separate ratings.  To that effect, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula at Note (1).  Concerning this, the Veteran has reported radicular pain down both legs, numbness, paresthisias, and leg or foot weakness on the May 2009 and July 2011 VA examinations.  The July 2011 VA examination indicated that the detailed reflex and motor examination findings were normal; however that sensory examination revealed decreased pain or pinprick sensation in the right dorsal foot.  However, the May 2009 VA examiner noted that the reported radicular pain was not typical pain in the dermatomal kind of a distribution to suggest any acute radiculitis, clinically.  The examiner further indicated that there was no typical evidence of any both lower extremities numbness or tingling or any foot drop or foot drag or any bladder/bowel problems.  On the July 2011 VA examination, the Veteran continued to deny a history urinary or bowel movement problems.  As such, objective neurologic abnormalities associated with the Veteran's lumbar spine disability have not been shown.

Knees

The August 2009 rating decision granted service connection for bilateral retropatellar pain syndrome and assigned non compensable ratings for both knees under 38 C.F.R. § 4.71a, Diagnostic Code 5260.

In the May 2009 VA examination report, the Veteran reported pain in both knees, popping and sometimes snapping, but no locking of the knees.  He had physical therapy in the past.  He was able to sit, stand and walk.  He was able to do all the daily activities and walk as much as he wanted to, even 1 to 3 miles.  He tried to stay away from any impaction-type activities.  No brace was being used.  The Veteran described knee pain on the left in the range of 1 to 12 times and on the right 1 to 8 times a month.   He described the pain as mild to moderate and located more behind the kneecap area, bilaterally.  He was careful with any kind of activities with too much of squatting, kneeling, crawling, or going up and down the stairs.  He stated that because of his lumbar condition as mentioned above he was put on a physical training (PT) profile and that PT profile definitely helped in the knee conditions because he was not doing much heavy impaction activities.  He also mentioned that if sitting in one place for 30 minutes or standing for 15 minutes he had to move around and stretch the knees, and that going up and down more than two flights of stairs, or even one flight, was difficult.  With long-distance driving for more than 2 hours or more, he had to use safety exits and stretch the knees.  The bilateral knee condition affected his job activities and also the activities of daily living activities, such as working in the yard, squatting, kneeling, and crawling as these kind of activities could aggravate the knee pain.

Bilateral knees revealed a range of motion from 0 to 140 degrees.  Medial collateral ligament (MCL) and lateral collateral ligament (LCL) were stable.  Drawer signs were negative.  Lachman and McMurray tests were negative.  On physical examination, patellar tap sign was negative and there was no evidence of any inflammation on palpation.  Tibial tuberosity was also normal, bilaterally.  After performing the Deluca testing, the range of motion remained the same as 0 to 140 degrees but there was pain at 1 on a scale of 1 to 10, bilaterally, in the retropatellar area.

Radiographs of the right knee showed the medial, lateral and patellofemoral joint spaces were maintained.  There was normal mineralization for age.  There was no joint effusion.  There were no lytic or blastic lesions.  There were no fractures, subluxations or soft tissue swelling.  There were no soft tissue calcifications.  The patella was anatomically aligned.  The left knee radiographs revealed that the medial, lateral and patellofemoral joint spaces were maintained.  There was normal mineralization for age.  There was no joint effusion.  There were no lytic or blastic lesions.  There were no fractures, subluxations or soft tissue swelling.  There were no soft tissue calcifications.  The patella was anatomically aligned.  The diagnoses were bilateral retropatellar pain syndrome with recurrent episodic pain.  

In the July 2011 VA examination report, the Veteran reported giving way, instability, pain, stiffness, weakness and swelling and tenderness of both knees, but denied any deformity, incoordination or episodes of dislocation or subluxation.  For the left knee, he also reported locking episodes and repeated effusions for the knee several times a week, and severe flare-ups every 2 to 3 weeks, with prolonged walking and ladder climbing.  Objectively, there were no constitutional symptoms or incapacitating episodes of arthritis.  The Veteran indicated that there was no limitation on standing but that he could only walk half a mile.  He used knee brace.

On physical examination, the Veteran's gait was normal but there was no evidence of abnormal weight bearing.  There was subpatellar crepitus, but no mass was found behind the knees.  There were also no bumps consistent with Osgood-Schlatter's disease, clicks or snaps, grinding, instability, patellar or meniscus abnormalities, or abnormal tendons or bursae.  The range of motion of the bilateral knees was normal as 0 to 140 degrees, with no objective evidence of pain with active motion, bilaterally.  The examiner indicated that there were no additional limitations after three repetitions or objective evidence of pain with repetitive motion.  There was no joint ankylosis.  The diagnosis was bilateral patellofemoral pain syndrome.

Based on the available evidence, the Veteran is entitled to a 10 percent initial rating, and no more, for the painful limited motion related to each knee disability.  This rating is assigned because the May 2009 VA examination report revealed the Veteran's report of pain in both knees, which was shown on the range of motion testing.  Further, although the July 2011 VA examination report stated that there was no objective evidence of painful motion, the Veteran reported pain, stiffness, weakness, swelling and tenderness of both knees.  He is competent to report that his knee joint motion is painful, and the Board finds his observations to be credible.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994); also see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board is obligated to determine the credibility of lay statements).  It is VA policy to recognize actually painful motion as warranting at least the minimum compensable rating.  38 C.F.R. § 4.59 (2012).  This provision is applicable to any orthopedic disability.  See Burton v. Shinseki, 25 Vet. App. 1 (2010).  As such, an initial rating of 10 percent is warranted for each knee.
However, a rating in excess of 10 percent is not warranted for either knee, based on limitation of motion.  To that effect, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 10 percent rating is in order if flexion of the knee is limited to 45 degrees.  A 20 percent rating is in order if flexion of the knee is limited to 30 degrees.  A 30 percent rating is in order if flexion of the knee is limited to 15 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order.  If extension of the knee is limited to 15 degrees a 20 percent rating is in order.  If extension of the knee is limited to 20 degrees a 30 percent rating is in order.  If extension of the knee is limited to 30 degrees a 40 percent rating is in order.

In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings.  The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions.  Id.

In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004).  The basis for the opinion was a finding that a limitation in planes of movement were each compensable.  Id.

Initially, the Board will not consider if the Veteran's is entitled to a rating in excess of 10 percent for either knee under the other criteria for rating disabilities of the knees because, as seen at the May 2009 and July 2011 VA examinations, his adverse symptomatology does not include X-ray evidence of arthritis, ankylosis, instability, a dislocated semilunar cartilage, removal of the semilunar cartilage, tibia and fibula impairment, and/or genu recurvatum.  Id.; Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that in the absence of ankylosis VA may not rate a service-connected disorder as ankylosis); also see 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5262, 5263 (2012).  To that effect, the Veteran subjectively complained of instability of the knees on the July 2011 VA examination; however, the clinical examination of the knees revealed no instability.  The Veteran also denied any episodes of dislocation or subluxation.

At both the May 2009 and July 2011 VA examinations, the range of motion of knees was shown to be normal (Normal range of motion is 0 to 140 degrees.  See 38 C.F.R. § 4.71a, Plate II (2012)) with no bone loss, dislocation, arthritis, crepitus, clicks, grinding, instability, or abnormality.  It was also shown that there was no additional lost motion after repetitive use.

As to a rating higher than 10 percent for either knee under Diagnostic Code 5260 or 5261, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, that the Veteran's functional losses do not equate to the criteria required for a 20 percent rating because flexion of either knee is not limited to 30 degrees but at its worst it was not limited at all at 140 degrees. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  His functional losses also do not equate to the criteria required for a 20 percent rating under Diagnostic Code 5261 because extension of either knee is not limited to 15 degrees but at its worst it was not limited at all at 0 degrees.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.

The Board also finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, the Veteran's functional losses do not equate to the criteria required for separate compensable ratings for either knee under Diagnostic Code 5260 and under Diagnostic Code 5261 because flexion of either knee is not limited to at least 45 degrees and extension of either knee is not limited to at least 10 degrees.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; VAOPGCPREC 9-2004.



Left Ankle

In the August 2009 rating decision, the RO granted service connection for talofibular ligament strain of the left ankle with a noncompensable rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271.

Within the musculoskeletal rating schedule, Diagnostic Code 5271 provides for a 10 percent rating for moderate limitation of motion of the ankle, and a 20 percent rating for marked limitation of motion of the ankle.  38 C.F.R. § 4.71a, Diagnostic Code 5271.  A 20 percent rating is also warranted for ankylosis of the subastragalar or tarsal joint in poor weight bearing condition; malunion of the os calcis or astragalus, with marked deformity; or astragalectomy.  38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274.

For VA rating purposes, normal range of motion on the ankle is 0 to 20 degrees of dorsiflexion, and 0 to 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II.

On the May 2009 VA examination, the Veteran reported left ankle pain.  The range of motion of the bilateral ankles included dorsiflexion of 0 to 20 degrees, plantar flexion of 0 to 45 degrees, inversion to 40 degrees, and eversion to 20 degrees.  On the left ankle, with the Deluca testing, mild talofibular ligament strain was noted and ankle inversion decreased to 35 degrees; otherwise, the other range of motion was normal.  Standing position was also normal.

X-ray of the left ankle revealed that the mortise was symmetric and the syndesmosis was intact.  There were no fractures, subluxations or soft tissue swelling.  Mineralization was normal for age.  There were no lytic or blastic lesions.  There was no plantar or Achilles insertion enthesophytes.  The impression was unremarkable radiograph of the ankle.  The diagnosis was left ankle talofibular ligament strain with residual episodic pain.

On the July 2011 VA examination, the Veteran denied deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes or symptoms of inflammation of the left ankle.  On physical examination, there was mild tenderness in the anterior to the lateral malleolus.  No ankle instability, tendon abnormality or angulation was shown.  The left ankle range of motion included dorsiflexion to 20 degrees, plantar flexion to 45 degrees, with no objective evidence of pain with active motion.  The examiner indicated that there were no additional limitations after three repetitions or objective evidence of pain with repetitive motion.  The diagnosis was left ankle strain, resolved.

Based on the foregoing evidence, the Board finds that a 10 percent initial rating, but no higher, is warranted for the Veteran's service-connected left ankle disability for the entire appeal period.  The Veteran has reported symptoms of left ankle pain on the May 2009 VA examination, and on repetitive motion testing, the left ankle inversion decreased from 40 to 35 degrees.  He is competent to report the symptoms he experiences, and the Board finds him credible in this regard.  Painful motion with joint is recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1-2.  Consequently, an initial rating of 10 percent is warranted for the Veteran's talofibular ligament strain of the left ankle.

However, the Board finds that the criteria for an initial rating in excess of 10 percent for the Veteran's left ankle disability have not been met for any time during the appeal period.  In this respect, the Veteran's left ankle had dorsiflexion of 0 to 20 degrees and plantar flexion of 0 to 45 degrees at both the May 2009 and July 2011 VA examinations.  As noted above, dorsiflexion of 0 to 20 degrees and plantar flexion of 0 to 45 degrees is a normal range of motion.  38 C.F.R. § 4.71a, Plate II.  Thus, the evidence does not indicate that the Veteran has had marked limitation of motion of the left ankle.  Furthermore, there was no additional limitation of motion due to pain, fatigue, weakness, lack of endurance or incoordination after repetitive use of the left ankle at either examination.  See 38 C.F.R. §§ 4.40, 4.45; also see DeLuca, 8 Vet. App. at 204-7.  On the May 2009 VA examination, mild talofibular ligament strain was noted on repetitive use testing but resulting only in decreased ankle inversion to 35 degrees, with the other range of motions remaining normal.  Additionally, the July 2011 VA examiner specifically indicated that there was no objective evidence of pain with active motion or repetitive motion and that there were no additional limitations after three repetitions.  Consequently, the Board finds that an initial rating greater than 10 percent is not warranted for limitation of motion under Diagnostic Code 5271.

Additionally, the medical evidence establishes that left ankle ankylosis is not present.  See 38 C.F.R. § 4.71a, Diagnostic Code 5270.  There is also no evidence that the Veteran has ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or a history of astragalectomy.  Consequently, a rating in excess of 10 percent is not warranted under Diagnostic Codes 5272, 5273, and 5274, respectively.

Hemorrhoids

In the August 2009 rating decision, the RO granted service connection for hemorrhoids and assigned a noncompensable initial rating under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7336.  

Under 38 C.F.R. § 4.114, Diagnostic Code 7336, a noncompensable rating is warranted for hemorrhoids (external or internal) where there is evidence of mild to moderate symptomatology.  A 10 percent rating is warranted where there is evidence of large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, and frequent recurrences.  A 20 percent evaluation, the maximum allowed, is warranted where hemorrhoids are present, with persistent bleeding and secondary anemia, or with fissures.  38 C.F.R. § 4.114, Diagnostic Code 7336 (2012).

The May 2009 VA examination report reflects that on physical examination of the Veteran's hemorrhoids, there was no evidence of any acute bleeding or any thrombotic episodes or any surgeries.  The diagnosis was external hemorrhoid small tag with no complications and with no bleeding or no incontinence.

On the July 2011 VA examination, the Veteran described daily bleeding and no pain with normal bowel movements.  He reported a history of persistent rectal bleeding, but denied history of rectal prolapse, recurrent anal infections, or proctitis.  Current symptoms included anal itching and burning but the Veteran denied diarrhea, difficulty passing stool, pain, tenesmus, swelling, history of thrombosis, fecal incontinence, or perianal discharge.  On physical examination, there were no present hemorrhoids, anorectal fistula, anal or rectal stricture, impaired sphincter, or rectal prolapse.  The diagnosis was "hemorrhoids, not evident."  The examiner found that there were no significant effects on the usual occupation or daily activities due to the hemorrhoids.

Applying the schedular criteria to the foregoing evidence, the Board finds that the criteria for a compensable initial rating for hemorrhoids have not been met.  As detailed, while external hemorrhoid small tag was detected at the May 2009 VA examination, it was not described as large or thrombotic, or irreducible with excessive redundant tissue.  On the July 2011 VA examination, no hemorrhoids were present.  As detailed, both the May 2009 and July 2011 examiners noted that there was no evidence of thrombotic episodes and the Veteran denied episodes of thrombosis.  The Board acknowledges the Veteran's competent and credible lay statements regarding persistent bleeding; however, the evidence fails to demonstrate that the Veteran's hemorrhoids are large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, and frequent recurrences.  Rather, the evidence of record reflects that such result in mild, at most, moderate symptomatology, which is consistent with a noncompensable rating under Diagnostic Code 7336.  Therefore, a compensable initial rating for hemorrhoids is not warranted.

Migraines

Service connection for migraines was granted by the August 2009 rating decision and a noncompensable initial rating was assigned under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100, effective from July 9, 2009.  

Under Diagnostic Code 8100, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability.  Id.  The rating criteria do not define "prostrating" nor has the Court of Appeals for Veterans Claims.  Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack).  By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness."

On the May 2009 VA general medical examination, the Veteran reported that his migraine condition started approximately in 2006 and he might not get an aura.  He stated that sometimes it was in the frontal area.  During the headaches, he got vision problem, photophobia, nausea, and noise intolerance.  If he took medication at the right time the bad headaches could last in the range of to the level of 1 to 2 hours and then it resolved, but some lingering might remain, and during that time he did not do any risky task.  He reported that the migraines occurred 1 to 3 times a month approximately.  On physical examination, his neurologic, memory, cranial nerves were intact.  The diagnosis was migraines on treatment.

In a November 2009 TBI consultation report, the Veteran reported a history of traumatic head injuries in service.  With regard to neurobehavioral symptoms, he reported dizziness, loss of balance, poor coordination, headaches, moderate nausea, vision problems, blurring, trouble seeing, sensitivity to light, and sensitivity to noise, among others.

In a November 2009 TBI 2nd level evaluation consult report, the Veteran reported headaches with a few episodes where his wife had to help him to couch, with phono- and photo-phobia, which occurred two to three times a month.  He took Motrin to allow him to function, which provided about 50 percent relief.

In a December 2009 VA TBI evaluation-social work note, the Veteran reported current problems with migraine headaches, dizziness, memory, light sensitivity, tinnitus, and sleep.  He indicated that he had difficulty with multitasking.  He indicated that medication for migraine headaches helped but it did not always take away his pain.  The social worker discussed possibility of botox injections for his migraine headaches which the Veteran was willing to consider. 

In a February 2010 mental health medication initial visit note, the Veteran reported frequent headaches.  In the pertinent medical history, he reported headaches occurring 3 to 4 times a week, including disabling severe migraines about three times a month.

The Veteran was provided a VA neurological examination in July 2011.  The Veteran reported onset of migraine headaches in May 2004 and experiencing headaches 2 to 3 times a month, which were disabling.  He described that with no prodrome, the headaches gradually started then got severe and associated with nausea and occasional vomiting.  He described scotoma during his headaches at times.  Current treatment for the condition was taking medication, including Motrin 800 mg as needed and Vicodin as needed, and it was noted that the response to treatment was good.  The Veteran reported that most headache attacks were prostrating and usually lasted for hours.  The diagnosis was migraine headaches.  Concerning the effects on the usual occupation and resulting work problems, the Veteran reported increased absenteeism due to pain.  As the effects of the problem on usual daily activities, he stated that he was unable to perform home chores during severe migraine headaches. 

After reviewing the totality of the evidence, the Board concludes that a 30 percent rating is warranted for the Veteran's service-connected migraines.  In making this determination, the Board finds that the Veteran's statements are competent evidence regarding the frequency and severity of his current headache symptoms.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Furthermore, the Board has no reason to doubt the credibility of the Veteran's statements in this case.  The Veteran has reported symptoms, which included migraine headaches with prostrating attacks occurring approximately two to three times a month, at which time he experienced blurred vision, photophobia, phonophobia, nausea, and occasional vomiting.  He reported that his headaches were relieved by medications only sometimes and lasted for hours.  

However, these symptoms do not meet the criteria required for an evaluation in excess of 30 percent under Diagnostic Code 8100.  There has been no evidence of very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability.  While the evidence of record shows that the Veteran's migraines occur at least once a month and require him to refrain from activities, they do not result in severe economic inadaptability.  On the July 2011 VA examination, concerning the effects on the usual occupation and resulting work problems, the Veteran reported increased absenteeism due to pain.  However, he also reported currently being employed full time for six months and that he missed only one week in the previous six months due to back problems.  Therefore, the Board concludes that medical findings on examination, as well as the Veteran's own self-reported symptomatology, do not demonstrate that his migraines are productive of severe economic inadaptability.

All of the above issues have been reviewed with consideration of whether staged ratings would be warranted.  While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected disabilities, there is no evidence of record that would warrant a rating in excess of those assigned for the Veteran's service-connected disabilities during any of the periods on appeal.  See Fenderson, 12 Vet. App. at 126.

Extra-schedular ratings

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular ratings in this case are adequate.  The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected disabilities.  See Thun, 22 Vet. App. at 115.  The Veteran's PTSD is evaluated by the rating criteria which specifically contemplate the level of occupational and social impairment caused by this disability.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  When comparing the Veteran's psychiatric symptoms and social and occupational impairment with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the currently assigned 50 percent rating.

The Veteran's degenerative disc disease of the lumbar spine is evaluated by the General Rating Formula, which account for pain, stiffness, and limitation of motion and functional limitations associated with disability of the spine.  He does not have symptoms associated with this disability that have been unaccounted for by the schedular rating assigned herein.  See 38 C.F.R. § 4.71a, General Rating Formula.

The Veteran's bilateral knee and left ankle disabilities are evaluated by rating criteria contemplating painful motion, limited motion, ankylosis, instability, weakness, and deformity of the respective joint.  He does not have symptoms associated with these disabilities that have been unaccounted for by the schedular ratings assigned herein.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5274.

The Veteran's hemorrhoids are evaluated by rating criteria contemplating the frequency of recurrence and the severity of bleeding caused by hemorrhoids.  He does not have large or thrombotic hemorrhoids or other symptoms associated with this disability that have been unaccounted for by the currently assigned schedular rating.  See 38 C.F.R. § 4.114, Diagnostic Code 7336.

The Veteran's migraines are evaluated by rating criteria contemplating the frequency and severity of the headache attacks and any severe economic inadaptability caused by this disability.  His migraines are manifested by blurred vision, photophobia, phonophobia, nausea and occasional vomiting, which are characteristic symptoms of migraine attacks and he does not show other unusual symptoms associated with this disability are that have been unaccounted for by the schedular rating assigned herein.  See 38 C.F.R. § 4.124a, Diagnostic Code 8110.

Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from each service-connected disability with the pertinent schedular criteria does not show that his service-connected PTSD, degenerative disc disease of the lumbar spine, retropatellar pain of the bilateral knees, left ankle strain, hemorrhoids, or migraines present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).

Consequently, the Board finds that the available schedular ratings are adequate to rate each disability.  Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Nevertheless, the Board also notes that the Veteran has not required hospitalization during the appeal period.  The Veteran has successfully finished his education and has been employed full time.  On the July 2011 VA examination, the Veteran reported being employed for six months and that he missed only one week in the previous six months due to back problems.  Therefore, marked interference of employment due to any service-connected disability has not been shown.  As such, referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.




ORDER

Entitlement to an initial rating in excess of 50 percent for PTSD is denied.

Entitlement to an initial rating of 20 percent, but no greater, for the Veteran's degenerative disc disease of the lumbar spine with L4-S1 disc bulging is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an initial rating of 10 percent, but no greater, for retropatellar pain syndrome of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an initial rating of 10 percent, but no greater, for retropatellar pain syndrome of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an initial rating of 10 percent, but no greater, for talofibular ligament strain of the left ankle is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a compensable initial rating for hemorrhoids is denied.

Entitlement to an initial rating of 30 percent, but no greater, for migraines is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

With respect to the Veteran's claim for entitlement to a compensable initial rating for plantar fasciitis of the left foot, the claims file does not include all pages of the VA feet examination conducted in July 2011.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Thus, the case must be remanded for the RO to obtain and associate with the claims file the complete copy of the July 2011 VA feet examination report.

With respect to the Veteran's claim for entitlement to a compensable initial rating for residual scars status post fracture of the left tibia with tibial fixation, the condition is currently assigned a noncompensable initial rating 38 C.F.R. § 4.118, Diagnostic Code 7805.  Diagnostic Code 7805 provides that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code must be evaluated.  38 C.F.R. § 4.118, Diagnostic Code 7805.

Scars of other than the head, face or neck that are deep and non linear are assigned a ratings based on the area or areas of the scar(s). Where the area or areas are at least 144 sq. in. (929 sq. cm.) a 40 percent rating is assigned, for area or areas of at least 72 sq. in. (465 sq. cm.) but less than 144 sq. in. (929 sq. cm.) a 30 percent rating is assigned; for area or areas of at least 12 sq. in. (77 sq. cm.) but less than 72 sq. in. (465 sq. cm.) a 20 percent rating is assigned; for area or areas of at least 6 sq. in. (39 sq. cm.) but less than 12 sq. in. (77 sq.cm.) a 10 percent rating is assigned.  38 C.F.R. § 4.118, Diagnostic Code 7801.  Scars of other than the head, face or neck that are superficial and non linear are assigned a 10 percent rating if the area or areas of the scars is 144 sq. in. (929 sq. cm.) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802.

The May 2009 VA examiner found on the Veteran's left knee where the tibial fixation was done with the rod placement medial and below the patella, a 2-inch 99 % faded out scar with no keloid and no hypertrophy.  It was not painful or adherent to underlying structures.  Hair growth was normal.  The July 2011 VA examination identified two more oval scars on the left lower leg.  The report reflects that the Veteran had residual surgical scars on the left medial lower leg from the placement of an intermedullary rod in the tibia.  There were three apparent scars: (1) a 4 x 1 cm vertical scar on the medial upper left lower leg, (2) a 2 cm oval scar on the proximal medial lower left leg, and (3) a 1.5 cm oval scar on the distal medial left lower leg.  The examiner noted that the scars were non-tender and not depressed.

The areas of all scars were found to be less than 39 sq. cm.  Therefore, the Veteran's scars do not approximate the criteria for a compensable rating under Diagnostic Codes 7801 or 7802.  It also appears that the scars that were found on examination were not tender therefore not painful.  However, it is not clear whether any of these scars are unstable.  To that effect, scars that are unstable or painful are assigned ratings based on the number of such scars.  For five or more unstable or painful scars a 30 percent rating is assigned; for three or four unstable or painful scars a 20 percent rating is assigned and for one or two unstable or painful scars a 10 percent rating is assigned.  38 C.F.R. § 4.118, Diagnostic Code 7804.  Notes under Diagnostic Code 7804 explain that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar; if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars; scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable.

When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  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); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).  Therefore, the Board is of the opinion that an additional VA examination is in order.

Additionally, the Veteran claimed entitlement to a TDIU.  Accordingly, the issue of TDIU is part and parcel of the determination of the initial ratings for the Veteran's service-connected disabilities and is properly before the Board.  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities; if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted).  Given the disability ratings newly assigned herein and multiple appealed claims for increased ratings that have not yet been adjudicated, the Board cannot adjudicate the claim for a TDIU and it must be remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless all issues have been considered).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the complete copy of the VA examination conducted in July 2011 and associate with the Veteran's claims file.

2.  Schedule the Veteran for an appropriate VA examination to ascertain the current severity of the Veteran's service-connected residual scars status post fracture of the left tibia with tibial fixation.  The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination.  All indicated testing must be conducted, including a thorough examination of the Veteran's scars.  All pertinent symptomatology and findings must be reported in detail.  The VA examiner must identify any and all residual scar(s) status post fracture of the left tibia with tibial fixation.  For each scar identified, the examiner must measure the accurate size of the scar and indicate whether such scar is painful, unstable, deep or superficial, or linear or non-linear.  The examiner is also asked to determine whether there is any disabling effect(s) caused by the Veteran's service-connected scars.

A complete rationale for any opinion offered should be provided.

3.  After completing the above development, and any other development deemed necessary, readjudicate all pending increased rating claims on appeal taking into consideration any newly acquired evidence.  Thereafter, schedule the Veteran for an examination to determine whether his service-connected disabilities result in unemployability.  Based on a review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities.  In this regard, the examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history.

The opinion must be based on the review of the claims file, and a complete rationale must be provided for any opinions expressed.

4.  Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims.  Failure to report for a VA examination without good cause may result in denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2012).

5.  After completing the above, readjudicate the remaining issue of entitlement to a TDIU.  If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs