Citation Nr: 1314737 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-24 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for a through and through bullet wound of the right thigh with femur fracture and muscle damage (Muscle Group XIV). 2. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to November 29, 2012, and as 50 percent disabling as of that date. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which continued a 30 percent rating assigned to PTSD and increased the rating assigned to a through and through bullet wound of the right thigh with femur fracture and muscle damage to 40 percent, effective December 8, 2005. The claim for an increased rating for PTSD was remanded by the Board for additional development in January 2011 and February 2012. The rating was subsequently increased to 50 percent, effective November 29, 2012. Despite the increased rating granted by the RO, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board initially denied the claim for a rating in excess of 40 percent for a through and through bullet wound of the right thigh with femur fracture and muscle damage (Muscle Group XIV) in a January 2011 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011 the Court endorsed a Joint Motion for Remand (Joint Motion) vacating the Board's denial of the Veteran's bullet wound residuals claim and remanding the matter for further proceedings. The claim was subsequently remanded by the Board for additional development in April 2012. The actions directed by the Board in its February 2012 and April 2012 remands have been accomplished and the matters returned for appellate review. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum rating under Diagnostic Code 5314 and there is no evidence his through and through bullet wound of the right thigh with femur fracture and muscle damage involves Muscle Group XVII. 2. The Veteran's PTSD was not manifested by occupational and social impairment with reduced reliability and productivity prior to November 29, 2012. 3. The Veteran's PTSD has not been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as of November 29, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a through and through bullet wound of the right thigh with femur fracture and muscle damage (Muscle Group XIV) have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5314 (2012). 2. The criteria for a rating in excess of 30 percent for PTSD have not been met prior to November 29, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 3. The criteria for a rating in excess of 50 percent for PTSD have not been met as of November 29, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in January 2006, and additional notice by letters dated March 2006 and January 2009. The claims were readjudicated in a November 2009 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records; assisted the appellant in obtaining evidence, to include VA treatment records; afforded the appellant physical examinations; and obtained medical opinions as to the severity of his disabilities. In this vein, VA has complied with the Board's February 2012 and April 2012 remand instructions as new VA examinations were scheduled and VA treatment records dated from January 2009 to the present were obtained. The Board notes that the Veteran indicated in May 2012 that he receives no private treatment for either disability. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claims at this time. Increased ratings Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Service connection for a through and through bullet wound of the right thigh with femur fracture and muscle damage (Muscle Group XIV) was originally granted with a 10 percent rating pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5314, effective March 31, 1986. See July 1986 rating decision. The rating was increased to 40 percent, effective December 8, 2005, in the May 2006 rating decision that is the subject of this appeal. The Veteran seeks a rating in excess of 40 percent due to this assertions that his disability has worsened and he has pain and suffering. See VA Form 21-4138 received December 2005; VA Forms 21-4138 dated September 2006 and July 2008. Service connection for PTSD was originally granted with a 30 percent rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective March 31, 1997. See December 1997 rating decision. The Veteran seeks a rating in excess of 30 percent due to his assertions that his disability has worsened and he has pain and suffering. See VA Form 21-4138 received December 2005; VA Forms 21-4138 dated September 2006 and July 2008. As noted in the Introduction, the rating assigned for PTSD was recently increased to 50 percent effective November 29, 2012. See January 2013 rating decision. Since the Veteran's claim for increased ratings was received on December 8, 2005, the Board must evaluate whether he is entitled to a rating in excess of 30 percent for PTSD and a rating in excess of 40 percent for a through and through bullet wound of the right thigh with femur fracture and muscle damage (Muscle Group XIV) as of December 8, 2004. The Board notes, however, that there is no indication the Veteran received VA treatment for his PTSD prior to the date on which his claim was received, and there is no record of any VA treatment for the right thigh disability at any time during the appeal. 38 C.F.R. § 4.73, Diagnostic Code 5314, provides the criteria for rating injuries to Muscle Group XIV, specifically the thigh muscles. These muscles affect extension of the knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial (Maissiat's) band acting with Muscle Group XVII (see Diagnostic Code 5317) in postural support of body; and acting with hamstrings in synchronizing hip and knee. The muscles in Group XIV include the sartorius, rectus femoris, vastus externus, vastus intermedius, vastus internus, and tensor vaginae femoris. Ratings for slight (0 percent), moderate (10 percent), moderately severe (30 percent), and severe (40 percent) muscle injuries are provided. Under 38 C.F.R. § 4.56(d), ratings for muscle injuries are classified as slight, moderate, moderately severe, or severe, depending on the type of injury sustained, the history and complaints, and objective clinical findings. For the purposes of evaluating muscle injury, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). The term "moderately severe" disability includes through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. See 38 C.F.R. § 4.56(d)(3) (2012). The term "severe" disability includes through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. See 38 C.F.R. § 4.56(d)(4) (2012). Pursuant to the General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 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 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. Id. A 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Id. Lastly, a 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV). A GAF of 31 to 40 is defined as 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). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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 of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF of 71 to 80 is defined as 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). A GAF score generally reflects an examiner's finding as to the Veteran's functioning score on that day and, like an examiner's assessment of the severity of a condition, is not dispositive. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2012). The medical evidence in this case consists entirely of VA treatment records and several VA examination reports. The Board again notes that there is no record of any VA treatment for the right thigh disability at any time during the appeal. It also notes that it does not appear the Veteran has received much mental health treatment for his PTSD as there are only a few mental health treatment records associated with the claims folder during the appellate period. Therefore, the majority of the evidence in this case was obtained during the VA examinations conducted in 2006, 2009 and 2012. The Board notes that the Joint Motion determined that the September 2009 VA examination that evaluated the Veteran's through and through bullet wound of the right thigh with femur fracture and muscle damage (Muscle Group XIV) was inadequate. The Board will not use that examination in determining whether a rating in excess of 40 percent is warranted for the right thigh disability. The Veteran underwent a VA review examination for PTSD in January 2006, at which time his claims folder was available for review. The examiner reported that according to VA medical records, the Veteran had no active problem or medication list and that he was not on any medications and had received no mental health services since his last examination in 1997 (when service connection was established). The Veteran explained that he could not afford to miss work to receive services. He denied a history of assaultive or violent behavior and while he also denied any suicide attempts, he admitted to ideations with the most recent period about two weeks prior. The Veteran explained that he worked at the Army Reserves and saw soldiers coming through on their way to and from Iraq "and some of them didn't come back." He said this triggered memories of service, thus increasing the severity of his PTSD symptoms and feelings of depression and hopelessness. He commented that "it was like when one of my friends didn't come back because he got killed." The Veteran also reported poor sleep; "thinking and worrying" at night and only averaging about four hours of sleep per night; variable appetite with a bit of weight loss, though not attributed to anything related to anxiety; and low energy level, but not to the extent of neglecting daily responsibilities. He denied any problems with alcohol or substance abuse. The Veteran reported that his mother lived about 20 blocks away from him and they talked on the phone about once monthly. He indicated a reduction in contact with her and explained he had become increasingly disappointed in his lack of accomplishment in life and that his mother commented on his not achieving to his potential and encouraged him to seek mental health treatment. He reported she had told him he was not the same person he used to be and was getting more serious, and he admitted his job was wearing on him due to increased exposure to the soldiers going to war. The Veteran indicated that he rarely saw his brothers and seldom attended family functions, stating that he did not want to be around people and felt more comfortable alone. He reported that he and his wife had separated 20 years before without any contact. He denied any intimate relationships since his separation. The Veteran reported just beginning to make an effort to get re-acquainted with his two children, ages 19 and 24, after years of being very distant. He indicated that he felt emotionally detached from them and depressed around them. The Veteran denied having any friends/social support. For leisure or recreation, the Veteran reported listening to music. The Veteran reported working as a maintenance man at the Army Reserves and said his work performance was "all right." He denied receiving any write ups, reprimands or suspensions but said despite his satisfactory work performance, the soldiers going through there created significant stress for him. He also reported the mobilization of one of his co-workers, which was distressing. The Veteran indicated that he went directly home after work and just sat around. He described himself as introverted. In terms of PTSD symptoms, the Veteran reported recurrent and intrusive distressing recollections of the war; recurrent distressing dreams, including nightmares and cold sweats, about two times a month; avoiding thoughts, feelings or conversations about the war; avoiding activities, places or people that arouse recollections of the war; a markedly diminished interest or participation in significant activities; problems with falling and staying asleep; irritability and outbursts of anger (such as yelling and throwing rocks at his neighbor's dog after it got into his trash); and problems with concentration. Mental status examination revealed that he arrived on time and presented with a neat and clean appearance. He had good eye contact and appeared his stated age. He was cooperative throughout the exam. The Veteran's mood was anxious and his affect was congruent to mood. He became more anxious during the exam and began to sweat profusely. There was no evidence of any suicidal or homicidal ideations. Speech was within normal limits in volume and clarity, but rapid in rhythm. Thought processes were logical and relevant and no cognitive impairments or perceptual disturbances such as hallucinations or delusions were observed. The Veteran was alert and oriented times three, memory was adequate, as were his concentration and attention, and no obsessive or ritualistic behavior was observed or reported. Judgment and insight were within normal limits. An Axis I diagnosis of chronic PTSD was made and the examiner indicated that a mild to moderate mood disturbance was considered secondary to PTSD. A GAF score of 62 was assigned and the examiner reported that the severity of the Veteran's functional level was considered to have increased somewhat and, overall, was moderately impaired. The Veteran also underwent a VA bones examination in January 2006, at which time he reported pain, weakness and muscle spasm of the right thigh. He also reported problems with prolonged standing and reported that he had a background level of pain on a daily basis of approximately 3 to 4 on a scale of 10. The Veteran denied the use of a cane or brace but did report discomfort and indicated he could not afford to take off work. He indicated that he had not missed a day of work in the past year (working 40 hours a week as a janitor), that he works with pain, which was aggravated by the prolonged standing and walking required by his job, and that he took frequent breaks at work to alleviate the pain. Physical examination revealed that the Veteran walked with a slight limp involving the right leg and his right leg was slightly turned outward. Upon clinical examination, there was marked muscle tissue deficit of the right inner thigh. There was a scar on the right lateral thigh that corresponded to the exit wound as well as the place where surgical incision was involved. The incisions measured approximately 7 to 8 centimeters on both the inner and exterior aspect. On the inner thigh, there was marked wasting of the anterior and medial aspect of the thigh musculature. With regard to range of motion of the hip, the Veteran was able to flex the hip to 125 degrees. He was able to abduct the hip to 40 degrees. Strength of the right hip was 2/4 compared to 4/4 on the left hip in resistance against flexion. Similarly, abduction against resistance on the right hip was 2/4 compared with 4/4 on the left. He was able to extend his right knee to zero degrees and flexion was to 120 degrees. The diagnosis was traumatic fracture of the right femur with residual muscle loss and weakness of the right leg and retained shrapnel visible on previous x-rays. The Veteran was noted to have permanent weakness and residual pain in his right leg and diminished strength in flexion and extension of the right leg and hip. The Veteran was also diagnosed with marked scarring of the right thigh, which was described as significantly disfiguring. X-rays of the bilateral knees and right femur were obtained. There was no evidence of fracture, dislocation, or other bone or joint pathology, involving the right knee. The right femur had moderate osteoarthritis throughout, otherwise no evidence of fracture, dislocation, or other bone or joint pathology. A June 2006 psychiatry note reveals that the Veteran had come to get an increase in disability. He reported being depressed, more so than before, and being more isolated without any relationships. This had all become more prominent and the Veteran indicated he believed it was due to the war in Iraq. He also reported an increase in symptoms due to his work at the Army Reserves. The Veteran reported being separated from his wife for 29 years and living with his mother. He indicated it was hard to forget his combat experiences due to his orthopedic issues. Mental status examination revealed nothing grossly unusual and no looseness. Affect was appropriate to a depressed mood. Intellectual faculties were intact. A GAF score of 40 was assigned. A September 2007 psychiatry consult reveals that the Veteran's work at an Army Center, which involved seeing soldiers going to Iraq, continued to worry him and to think about Vietnam. He was having difficulty sleeping, which was his major problem, as a result. The Veteran reported being married for one year and divorcing 29 years before. He teared up thinking about the relationship and reported crying a lot and keeping to himself watching television. He was living with his mother. Mental status examination revealed that he was quiet and polite. Affect was restricted and mood was somewhat depressed. Intellectual faculties were intact. In December 2007, the Veteran reported that medication had helped and he was feeling less depressed, or not depressed, and was sleeping better. In June 2008, the Veteran was seen to refill medications. He was still working as a janitor and was quiet and polite. The staff physician indicated that they stuck to the business of writing the medications. See psychiatry notes. The Veteran underwent a VA review examination for PTSD in January 2009. The Board acknowledges that his claims folder was not available for review, but since his electronic records were, and the Veteran has only received (minimal) VA treatment for PTSD, there is no prejudice. The Veteran reported that he was losing more time from work than he did two years ago, but spontaneously attributed this mostly to pain in his leg on standing, which was okay as long as he was moving around. He continued to function as a janitor at the Federal Records Center and, while he had the impression that his job could be in jeopardy, he did not indicate that he had had any formal counseling or warnings. He was employed during the daytime full-time. The Veteran estimated that he lost about eight hours of time per pay period and that about two-thirds of the time his work loss is due to his leg pain, although about one-third of the time it is because he simply does not want to be around people. He estimated that he was losing days from work about six times in six months two years ago, and he attributed all of these lost days to his leg pain. He reported last seeing his treating psychiatrist on December 18, 2008, although the examiner noted that there was no progress note in his electronic record, and that the last treatment of record was from June 24, 2008, at which time the Veteran was noted to be doing fairly well. The Veteran continued to live in East St. Louis with his mother in a home that he and his mother jointly bought. He had been living there for about 30 years. He spent time visiting next door with his long-time neighbor about twice per week, usually on Friday and Saturday nights. At such time he drank about six standard drinks in the form of beer per night. Otherwise, he denied drinking during the work week. He also denied any involvement with street drugs. The Veteran reported generally getting about eight hours of sleep per night as long as he is taking the sleep medication provided by his physician. He reported continued nightmares with a frequency of four to six times per month and said that about five out of six dreams concern incidents in Vietnam and one out of six is a dream about falling. He denied any significant intrusive ideation or flashbacks. He reported losing about 30 pounds in the last eight months, although he continues to state that he eats three times a day. He did indicate subjective distress at watching the news at a level eight on a scale of ten. He equated being around groups of people as being a member of a team and said that he always feels as though you are going to lose people on anything that is a team. This accounted for his indication that he was uncomfortable in groups, although much of his discomfort seemed to depend on his not knowing anybody in the group. The future looked okay to him on a psychiatric basis, but he was not happy about his physical outlook. He claimed excessive startle response and indicated that his symptoms had become more panic-like in the sense that he was more likely to experience sweating and heart pounding when upset. Otherwise, he said he could think of no significant symptomatic changes or historical changes since his last examination. Mental status examination revealed that the Veteran was early for his appointment and was dressed in a nylon wind breaker and dark pants, which were clean and well-maintained, although casual. Grooming and hygiene were adequate. Speech was within normal limits for flow, rate, and prosody. No evidence of psychotic symptoms was discerned. He was friendly and relating when retrieved from the waiting room. Mood was generally euthymic and affect showed good range and appropriate quality. Mood and affect were essentially congruent. He was oriented in all spheres. No gross deficits of memory were demonstrated. The Veteran's ability to do sequential planning (executive functioning) appeared un-compromised, although slightly slowed in pace. Attention was easily mobilized and maintained. Concentration, however, was slightly impaired. There was no clear evidence, however, that this was secondary to Vietnam-related hypervigilance. Ability to abstract was fair. Judgment was considered fair to good. Impulse control was fair to good. Insight was fair. The Veteran appeared able to manage VA benefits independently. His performance of activities of daily living was within acceptable limits for his age cohort. In addition to interview data, brief psychological evaluation was conducted with the Mississippi Scale and the PTSD Checklist Military Form. His score on the Mississippi was 135. The mean on that instrument for individuals from the Vietnam Era diagnosed with PTSD is 130, placing him only about one-third of a standard deviation above the mean and arguing for a case of PTSD of average symptomatic intensity. His score on the PTSD Checklist was 63, indicating that the last 2 weeks may have been somewhat more difficult than usual for him, a report not unusual for individuals who are anticipating a Compensation and Pension Examination. Since the instrument is a state rather than a trait instrument, there are no normative data to facilitate interpretation. The examiner reported that the Veteran continued to exhibit sufficient depth and breadth of symptomology to justify the diagnosis of PTSD and, psychometric data considered, appeared to have about an average symptom intensity for an individual diagnosed with the condition. He was effectively maintaining employment and, within the spectrum of interpersonal interactions that he wished to maintain, he seemed to function relatively well. His desire to maintain social relationships is not particularly broad and, overall, much of his current psychological distress seems related more to his physical condition than to his psychiatric condition. While he is drinking somewhat heavily on Friday and Saturday nights, he reported no difficulties caused by this and there is no clear indication a psychiatric diagnosis is appropriate. An Axis I diagnosis of PTSD was made and a GAF score of 56 was assigned. A Muscle Injuries Disability Benefits Questionnaire (DBQ) was conducted in June 2012, pursuant to the Board's April 2012 remand, at which time the diagnosis given was gunshot wound right thigh. The examiner described it as a penetrating muscle injury and reported that the Veteran had a gunshot wound to the mid mediolateral right thigh/mid portion which was through and through (without fracturing the femur). He also had shrapnel wounds to the (very) distal medial right thigh. The examiner identified the right-sided muscle groups affected as XIV and XV. The examiner also noted that the Veteran had a scar associated with the muscle injury, which was reported on a separate scars questionnaire to be discussed below. There were no known fascial defects or evidence of fascial defects associated with any muscle injuries, but the Veteran's muscle injury did affect muscle substance or function, specifically noted to be some impairment of muscle tonus, some loss of muscle substance, and visible or measurable atrophy. The following cardinal signs and/or symptoms attributable to the muscle injury in the right XIV and XV groups were noted: loss of power, which was described as consistent; weakness; a lowered threshold of fatigue, which was described as consistent; and fatigue-pain. Muscle strength testing revealed normal strength with right hip (Group XVI) and knee (Group XIII) flexion; normal strength with right ankle plantar flexion (Group XI) and right ankle dorsiflexion (Group XII); and less than normal strength with right knee extension (Group XIV). Right thigh atrophy was noted and the examiner reported that the atrophy was symmetrically distributed around the mid thigh/right mediolaterally in muscle groups XIV and XV. The normal side measured 43 centimeters and the atrophied side measured 40.5 centimeters. Functional impairment was noted. The examiner reported that standing and walking more than 30 minutes would cause enough fatigue and dull pain at the right thigh that the Veteran would want to sit and rest briefly; also picking up heavy objects was more difficult due to right thigh muscle weakness. The examiner also conducted a hip and thigh conditions DBQ. The examiner noted easier fatiguability of the right thigh and pain/dull with prolonged standing, walking, and repetitive crouching. Range of motion testing revealed right hip flexion to 125 degrees or greater and right hip extension to 30 degrees, both without objective evidence of painful motion. There was no abduction lost beyond 10 degrees, adduction was not limited such that the Veteran cannot cross legs, and rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions and post-repetitive testing range of motion was unchanged. Functional loss and/or functional impairment of the right hip and thigh was noted after repetitive use, to include weakened movement, excess fatigability, deformity, and atrophy of disuse, but the examiner clarified that these findings referred only to the function/findings at the right thigh muscles, not the right hip itself, which moved quite normally. The examiner also noted that the Veteran had a normal gait. There was no localized tenderness or pain to palpation for joints/soft tissue of the right hip. Muscle strength testing revealed normal strength during hip flexion, abduction and extension. The examiner also conducted a scars DBQ, at which time a diagnosis of mediolateral scars of the mid mediolateral right thigh was made. There were two scars, which were described as deep and non-linear. One measured eight centimeters by one and one-half centimeters and the other measured seven centimeters by one and one-half centimeters. The approximate total area was 22.5 square centimeters. They were not painful or unstable with frequent loss of covering of skin over the scar. The examiner noted that the two scars at the right thigh are definitely depressed by two millimeters laterally and 0.9 millimeters medially representing some loss of subcutaneous tissue laterally and loss of (both) subcutaneous tissue and muscle medially in contradistinction to the 2009 VA examination (which, the Board notes again, was inadequate). Moreover, there was inaccuracy of scar measurements on the 2009 report as to location, depth, thigh measurements also with (obvious) transposition of right thigh scars being ascribed to the left thigh. The June 2012 VA examiner noted that the measurements obtained during the 2006 examination were symmetrical with his/hers, though neither the width nor depth were measured. The examiner also noted that the right hip retained normal range of motion and strength (normal x-rays) on his/her assessment versus the 2006 examiner's statement that there was some weakness on flexion and abduction of the right hip. The June 2012 VA examiner also spoke to the Veteran's employability, as requested in the Board's April 2012 remand. The examiner noted that overall, the Veteran had worked acceptably enough for many years as a custodian to the present (i.e. there is no termination in the foreseeable future as to his performance). The examiner did report that in regards to the overall clinical residuals, exclusive of the right hip, which was normal on examination, the Veteran retained the residual strength and endurance factors to secure or maintain substantially gainful employment. The Veteran underwent a VA review PTSD DBQ in November 2012, pursuant to the Board's February 2012 remand. His claims folder was available for review. The examiner noted that review of the computerized patient record system did not reveal notes other than examination reports after 2003. The Veteran did not indicate that he was getting care anywhere else and related this largely to his employment being unhappy if he spends time away for significant numbers of medical appointments. He indicated that he hoped he would get enough money from an increased rating so that he would not have to work and could attend medical appointments and live the way he wants to. The Veteran reported drinking six 12 ounce cans of beer on Friday and another six on Saturday, which occurred weekly. He said it was enough to get him high. He denied drinking on Sunday knowing that he had to work the next day. He also denied additional forms of alcohol to this base dose and the use of any street drugs. The Veteran reported having suicidal ideation about a week prior in association with the Thanksgiving holiday. He reported the ideation had remitted since then and denied any current intent or plan. He denied homicidal ideation. The Veteran continued to work full-time during the day as a custodian at the Federal Records Center. He had received no formal reprimands or counseling and expected to retire at the age of 65, three years from the examination. He reported that three years prior he was getting some critique because of the number of doctor's appointments that he had, but he said this stopped since he stopped getting treatment. He continued to live with his mother in a two bedroom house. He reported watching television about 13 hours per day and ate three meals a day with good appetite. The Veteran denied going to church and belonging to any social organizations. He said his only friend was his next door neighbor, if you did not count his mother, and was unable to describe regular social or time-structuring activities. The Veteran reported getting into bed around 5pm and watching television. He actually starts attempting to go to sleep around 10pm and gets up around 4am. He estimated about four and one-half hours of sleep and reported six to seven nocturnal awakenings to go to the bathroom, or if he is awakened by gunshots near his home or on television, which he leaves on all night. The Veteran reported nightmares about three times per month. He comfortably engaged with other Veterans about Vietnam, but was less engaging with non-Veterans. When he is not specifically prompted for conversation, however, he reported little or no intrusive ideation. The Veteran described himself as generally isolative and said that he cried a lot, generally over family issues. He did not specifically report numbing but did report social estrangements. Foreshortening was reported, but much was related to his perception that he had gotten old enough that his physical problems were beginning to cause him significant difficulty. The Veteran denied irritability but indicated he was hypervigilant in the form of checking doorknobs at night. He described extensive recovery from startle and startle was, therefore, considered excessive. There was no complaint of difficulties with concentration. The Veteran denied problems with his supervisors. He reported losing perhaps two to three days of work per month due to psychiatric variables, but also noted that he did not take vacations and had nothing else to use his leave for. He reported that work was generally considered of at least average quality by inspection but had become more difficult due to leg pain with walking. He conducted adequate interpersonal relationships, though they were personally uncomfortable for him. The examiner indicated there was little clear indication that PTSD alone would cause him to be unemployable. Mental status examination revealed that the Veteran presented as a well-nourished but sparely built male who looked his stated age of 62. Eye contact was fluctuating. Speech was clipped and episodic in character with considerable emphasis. Thought train was relevant, coherent and goal-directed. Grooming and hygiene were adequate though casual. No clear anomalies of gait were noted. The Veteran was oriented in three spheres and immediate recall was 3/3 of stimulus objects. Delayed recall was two objects spontaneously and one given a categorical somatic cue. His memory retention was slightly below expectations for his age cohort. He was able to do four digits and three backward and was able to execute five serial seven calculations correctly and spell a five letter word backwards and forwards. Evidence suggested some general impoverishment of thinking, but there seemed to be no specific anomalies of attention, concentration, or executive function. Ability to abstract was fair to good. Judgment suggested reasonable attention to social demand and the ability to reasonably generate problem-solving alternatives of a socialized nature. The Veteran appeared able to attend to activities of daily living and to manage VA benefits. The examiner reported that the Veteran continued to report symptoms congruent with the diagnosis of PTSD, although the origins of his foreshortening are questionable at this point. The examiner would not expect a PTSD case of greater than average intensity and this was congruent with the results of his 2009 VA examination. On the whole, his lifestyle did not seem extraordinarily uncomfortable for him, although it was generally simplified and somewhat avoidant, bordering on impoverished. An Axis I diagnosis of PTSD was made and a GAF score of 57 was assigned. The preponderance of the evidence of record does not support the assignment of a rating in excess of 40 percent for the service-connected through and through bullet wound of the right thigh with femur fracture and muscle damage (Muscle Group XIV). As an initial matter, the 40 percent rating is the maximum rating under Diagnostic Code 5314. As such, the assignment of a rating in excess of 40 percent is impossible under these diagnostic criteria. The Board has considered whether the service-connected through and through bullet wound of the right thigh with femur fracture and muscle damage may be rated under other diagnostic codes related to muscle injuries. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The remaining diagnostic code, however, is simply not applicable to the right thigh disability as it is neither contended nor shown that it involves Muscle Group XVII. The Board acknowledges the Veteran's representative's assertion that the Board should consider functional impairment under 38 C.F.R. § 4.10 in evaluating the right thigh disability. See August 2010 In Lieu of VA Form 646. It notes that functional impairment is specifically considered by the criteria used to evaluate muscle injuries. In addition, the evidence in this case does not suggest that the Veteran's right thigh disability impacts his ordinary activities, and while the Board acknowledges the Veteran's report of losing time from work due to right leg pain, there is no other indication that the Veteran's employment is impacted in that he has worked as a janitor throughout the appellate period. The Board notes that the scars associated with the Veteran's service-connected right thigh muscle injury have been evaluated as part of the criteria for determining the level of disability under 38 C.F.R. § 4.56(d). Nevertheless, the Board has considered whether a separate rating is warranted for the scars noted on the Veteran's right thigh, while being mindful of the rule against pyramiding, since separate and distinct manifestations arising from the same injury may be assigned separate disability ratings where none of the symptomatology of the conditions overlaps. See 38 C.F.R. § 4.14; see also Estaban v. Brown, 6 Vet. App. 259 (1994). The evidence does not support the assignment of a separate rating for any of the scars located on the Veteran's right thigh. While the Board acknowledges that the January 2006 VA examiner reported "significantly disfiguring" marked scarring of the right thigh, and that the June 2012 VA examiner reported that the right thigh scars were depressed with some loss of tissue, the scars are not deep and do not cause limited motion in an area that exceeds six square inches (39 square centimeters); are not deep and nonlinear in an area of at least six square inches (39 square centimeters) but less than 12 square inches (77 square centimeters); are not superficial without causing limited motion or superficial and nonlinear in an area of 144 square inches (929 square centimeters) or greater; are not superficial and unstable or painful on examination; and none of the scars limits the Veteran's right thigh, right knee or right hip function. See 38 C.F.R. § 4.119, Diagnostic Codes 7801-7805 (2007); 73 F.R. 54708 (Sep. 23, 2008). The Veteran's symptoms due to the bullet wound are adequately rated under the diagnostic codes for muscle group injuries. The preponderance of the evidence of record does not support the assignment of a rating in excess of 30 percent for PTSD prior to November 29, 2012. As an initial matter, the Board notes that varying GAF scores of 40, 56 and 62 were assigned prior to this date. The Board notes that a score of 40 is defined as some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, that scores between 51 and 60 are defined as moderate symptoms or moderate difficulty in social, occupational, or school functioning, and that scores between 61 and 70 are defined as some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships. See DSM-IV. As noted above, however, the GAF scores assigned are considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2012). In this case, the subjective and objective symptoms of the Veteran's PTSD prior to November 29, 2012, do not support the assignment of the next higher (50 percent rating). The Board acknowledges the subjective symptoms reported by the Veteran prior to November 29, 2012, to include complaints of suicidal ideation, depression, to include crying spells; hopelessness; poor sleep; low energy; isolation, to include from family; nightmares; irritability; outbursts of anger; decreased concentration; and excessive startle response and feelings of panic. The Board also acknowledges that the Veteran had objective evidence of disturbances in mood, impaired speech, restricted affect, and impaired concentration. Importantly, however, the Veteran was employed full-time throughout the period of time prior to November 29, 2012, such that it cannot be said he had occupational impairment with reduced reliability and productivity. Moreover, he was living with his mother, reported attempting to reconnect with his children, and spent weekends socializing with his long-time neighbor. Therefore, it cannot be said he had disturbances of motivation or difficulty maintaining effective social relationships. In addition, there was objective evidence of logical and relevant thought processes; normal/adequate memory; fair to good judgment that was within normal limits; and normal/fair insight. There was no evidence of panic attacks more than once a week; difficulty understanding complex commands; and/or impaired abstract thinking. In light of the evidence discussed in the preceding two paragraphs, the Board finds that the severity of the Veteran's overall disability, even factoring in his subjective reports of suicidal ideation and outbursts of anger, more nearly approximates the already-assigned 30 percent rating prior to November 29, 2012. The preponderance of the evidence of record also does not support the assignment of a rating in excess of 50 percent for PTSD as of November 29, 2012. The Veteran's subjective symptoms during this time frame consist primarily of nightmares, isolation, crying spells, social estrangements, hypervigilance, and excessive startle response. There was also objective evidence of impaired speech (clipped and episodic in character with considerable emphasis); fluctuating eye contact; impaired memory (slightly below expectations for his age cohort); and general impoverishment of thinking. The evidence of record during this time frame does not reveal that the Veteran had 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; or an inability to establish and maintain effective relationships. Importantly, the Veteran's grooming and hygiene appeared adequate and casual and he appeared able to attend to activities of daily living, he was oriented in three spheres, ability to recall was only slightly impaired, abstract thinking, attention, concentration and executive function were normal, and judgment suggested reasonable attention to social demand and the ability to generate problem-solving alternatives. Moreover, he remained employed full-time and living with his mother. The Board acknowledges that the Veteran reported suicidal ideation during the November 2012 DBQ. However, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). In that vein, the severity of the Veteran's overall disability, as represented in the preceding paragraphs, does not more nearly approximate the assignment of a 70 percent rating during this period in question. In addition, the Veteran was assigned a GAF score of 57, which 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), and the VA examiner specifically noted that the Veteran's PTSD was of average intensity. In sum, the preponderance of the evidence supports the 30 and 50 percent disability ratings assigned for PTSD. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Extraschedular Consideration Generally, 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). However, 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. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); 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 the 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 Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected disability picture is not so unusual or exceptional in nature as to render the ratings assigned for these disorders inadequate at any time period on appeal. The Veteran's service-connected right thigh disability is evaluated under the schedule for rating muscle injuries, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology, to include consideration of pain. 38 C.F.R. § 4.73. His service-connected psychiatric disability is evaluated under the schedule for rating mental disorders, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology. 38 C.F.R. § 4.130. The Veteran's right thigh disorder was manifested by subjective evidence of pain, weakness and muscle spasm and objective evidence of a limp, muscle tissue deficit, atrophy, residual scars, loss of power, weakness, fatigue, and pain. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 40 percent disability rating assigned. Only one rating in excess of 40 percent is provided, and the manifestations required, namely involvement of a specific muscle group that is not affected by the Veteran's service-connected disability, are not demonstrated by the medical evidence of record. The criteria for the 40 percent rating more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the schedular evaluation currently assigned for the right thigh disability is adequate and no referral is required. The Veteran's PTSD is manifested by occupational and social impairment. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 30 and 50 percent disability ratings assigned. The criteria for ratings in excess of those assigned are not demonstrated by the medical evidence of record. The criteria for the 30 and 50 percent ratings more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the schedular evaluation currently assigned for PTSD is adequate and no referral is required. Inferred claim for a TDIU The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. While the Board acknowledges some time lost from work due to both the Veteran's PTSD and his right thigh disability, the Veteran has consistently reported working throughout the appeal period. Given the foregoing, and in the absence of any evidence suggestive of unemployability due to any of the Veteran's service-connected disabilities, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating in excess of 40 percent for through and through bullet wound of the right thigh with femur fracture and muscle damage is denied. A rating in excess of 30 percent for PTSD is denied prior to November 29, 2012. A rating in excess of 50 percent for PTSD is denied as of November 29, 2012. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs