Citation Nr: 1318161 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-07 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a left knee disability, claimed as secondary to service-connected right knee osteoarthritis with painful motion (right knee arthritis) and status post right unicompartmental knee replacement (right knee replacement). 2. Entitlement to an increased disability rating for right knee arthritis, rated as 20 percent disabling prior to April 1, 2009. 3. Entitlement to an increased disability rating for right knee arthritis, rated as 20 percent disabling as of April 1, 2009. 4. Entitlement to an increased disability rating for right patellofemoral syndrome status post arthroscopy (right knee instability), rated as 20 percent disabling prior to April 1, 2009. 5. Entitlement to an increased disability rating for status post right knee replacement (right knee instability), rated as 30 percent disabling as of April 1, 2009. 6. Entitlement to an increased disability rating for low back pain, currently rated as 10 percent disabling. 7. Entitlement to an increased disability rating for major depressive disorder, rated as 30 percent disabling prior to June 20, 2011. 8. Entitlement to an increased disability rating for major depressive disorder, rated as 70 percent disabling as of June 20, 2011. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 20, 2011. ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from November 1985 to April 1986, September 1989 to December 1989, and September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June and November 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which confirmed and continued the previous denial of entitlement to service connection for a left knee condition as secondary to right knee osteoarthritis with painful motion, continued the ratings assigned for right knee osteoarthritis with painful motion (20 percent); patellofemoral syndrome, right knee, status post arthroscopy (20 percent); low back pain (10 percent); and major depressive disorder (30 percent), and denied the claim for entitlement to a TDIU. The Veteran filed his application for benefits in July 2004. In a June 2008 rating decision, the Veteran's service-connected patellofemoral syndrome, right knee, status post arthroscopy, was recharacterized as status post unicompartmental knee replacement and a 30 percent rating was assigned effective April 1, 2009. The Board remanded the claim in April 2011 for further development. The Veteran's right knee claim and entitlement to TDIU prior to June 11, 2011, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for a left knee condition was denied on the merits by an unappealed rating decision in January 2003; the Veteran was notified of the determination and of his appellate rights but did not appeal. 2. The evidence received since the January 2003 decision is new, but not material as it does not relate to unestablished facts necessary to substantiate the claim or trigger the duty to assist by providing a medical opinion; and does not raise a possibility of substantiating the claim. 3. The evidence shows that the Veteran's low back pain is manifested by painful motion and decreased flexion with X-ray evidence of degenerative joint disease; however, the preponderance of the evidence does not demonstrate a combined range of motion greater than 120 degrees, flexion limited to 60 degrees or less or evidence of spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; and no incapacitating episodes requiring bed rest have been shown. 4. The Veteran's low back disability is not productive of neurological impairment. 5. Prior to June 20, 2011, the Veteran major depressive disorder is productive of by symptoms including depressed mood, anxiety, sleep impairment, anger/irritability, occasional suicidal thoughts, and paranoid thoughts, as well as some degree of occupational and social impairment; the preponderance of the evidence shows that the Veteran's major depressive disorder is not productive of flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term 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; or difficulty in establishing and maintaining effective work and social relationships. 6. As of June 20, 2011, the preponderance of the evidence shows that the impairment from the Veteran's major depressive disorder more nearly approximates deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due; but not total occupational and social impairment. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for an evaluation of 10 percent for low back pain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5237, 5243 (2012). 3. The criteria for an evaluation in excess of 30 percent for major depressive disorder prior to June 20, 2011, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9434 (2012). 4. The criteria for an evaluation in excess of 70 percent for major depressive disorder from June 20, 2011, are not met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). New and Material Evidence Claim In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that when considering petitions to reopen claims that, as here, have been previously considered, denied, and not appealed, VA must both notify the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought. To satisfy this requirement, VA adjudicators are required to look at the bases of the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement that were found insufficient in the previous denial. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). This was impossible in this case, as Kent was decided after the initial notice was sent. If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran was provided adequate motive in an April 2011 letter, and the case was subsequently re-decided in a November 2012 SSOC. The VCAA does not require VA to obtain a medical examination or opinion unless the claim is reopened. See 38 U.S.C.A. § 5103A(f). De Novo Claims The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in August 2004. A March 2006 letter advised the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection were denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. 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. The Board remanded this claim. Ongoing treatment records were obtained. The Veteran was also afforded examinations. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis A. Reopened Claim The Veteran seeks to reopen a previously denied claim of service connection for a left knee disability. Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The Federal Circuit has found that § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim. Id. at 1368. The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. In a January 2003 rating decision, the RO denied a claim for service connection for a left knee condition on the basis there was no evidence to show that the Veteran's current left knee complaints were related to service. The RO also noted that service treatment records (STRs) were negative for any complaints of or findings of a left knee condition. The Veteran was notified of that decision and of his appellate rights. He did not appeal that rating decision and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Although 38 C.F.R. § 3.156(b) (2012) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim, in this case, no pertinent evidence was received within a year of the unappealed January 2003 RO rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). In July 2004, the Veteran essentially requested secondary service connection for a left knee condition due to his right knee disability. In a November 2004 rating decision, the RO declined to reopen the claim on the basis that new and material evidence had not been received. The Board observes that some of the evidence received since the January 2003 rating decision is new, as it was not previously considered the RO; however, it is not material. Since the lack of evidence demonstrating a causal nexus was the basis for the denial of the claim in the prior RO decisions, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist by providing a medical opinion. See 38 C.F.R. § 3.303 (2012); see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, none of the newly submitted evidence establishes that the Veteran's left knee disability was either caused or aggravated by service or by his service-connected right knee disability. In fact, there is a medical opinion regarding this issue. The examiner who conducted the June 2004 VA joints examination stated that he did not believe that the very mild arthritis in the Veteran's left knee is due to the presence of osteoarthritis in the service-connected right knee. He noted that amount of additional stress placed on the left knee getting up and down is well within the range of normal and would not cause additional disease. Accordingly, new and material evidence to reopen the claim for service connection for a left knee condition has not been received. The claim is therefore not reopened. B. Increased Rating Claims Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability there from are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. All disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Low Back Disability The Veteran's low back pain is rated under Diagnostic Code 5237 for lumbosacral strain. Orthopedic manifestations offer another means of evaluating the Veteran's back disability, although a separate rating for such manifestations is not permitted. In this regard, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Note 2 provides that the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In this regard, the evidence reflects that there is a low back disability with pain. On VA examination in August 2004, the range of motion of the lumbar spine was 70 degrees flexion, with repetitive motion it was to 70 degrees; 25 degrees extension; 30 degrees left lateral bending with pain starting at 28 degrees; 42 degrees left lateral bending with pain starting at 39 degrees; and 40 degrees rotation bilaterally. On VA examination in December 2008, the range of motion of the lumbar spine was 75 degrees flexion, 30 degrees extension, 25 degrees lateral bending, and 30 degrees lateral rotation, bilaterally. On VA examination in May 2011, the range of motion of the lumbar spine was 80 degrees flexion, 20 degrees extension, 30 degrees lateral bending bilaterally, and 35 degrees rotation bilaterally. There were no muscle spasms or radicular pain found. Even considering the DeLuca factors, a higher rating would not be warranted as the additional functional loss to approximate the criteria for the 20 percent rating have not been shown. The Veteran's disability can also be rated as intervertebral disc syndrome, (IVDS) under 38 C.F.R. § 4.71a, Diagnostic Code 5243. This code evaluates the impairment based on the number of incapacitating episodes a person has in the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. A 10 percent rating is assigned for incapacitating episodes with a total duration of at least one week but less than two weeks in the past 12 month period; while a 20 percent rating is assigned for incapacitating episodes with a total duration of between two and four weeks in a 12 month period. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. However, no incapacitating episodes have been shown Consideration must also be given to any associated objective neurologic abnormalities (in addition to orthopedic manifestations), including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Additional evaluations are not necessary as no other neurological deficiency, including bowel or bladder problems have not been noted. At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated. In reaching this determination, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet. App. at 205-06. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. Here, in light of the range of motion findings discussed above, the evidence shows that even considering the Veteran's pain and corresponding functional impairment, in light of the objective evidence shown by the range of motion findings, the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent. Major Depressive Disorder The Veteran seeks initial higher ratings for major depressive disorder, rated at the 30 percent disability level prior to June 20, 2011; and at the 70 percent disability level from February 1, 2012. He avers that the current ratings do not accurately reflect the severity of his psychiatric disorder during the appeal period. Major depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434. The rating criteria provide that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment 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 effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. 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). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 51-60 is assigned where there are 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, conflict with peers or co-workers). Id. The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; 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). Prior to June 20, 2011 After a review of this evidence, the Board finds an increased rating is not warranted. 38 C.F.R. 4.130, Diagnostic Code 9411. A VA examination was conducted in August 2004. The Veteran complained of anger, depression, trouble sleeping, decreased libido, and decreased energy. He did not endorse any suicidal plans. He was not receiving any mental health treatment. Mental status examination noted his affect was anxious and somewhat guarded. He was neatly dressed. There was no evidence of illogical or delusional thought processes. However, the examiner noted that he may be experiencing some distortion in his perception of how he is treated. GAF scores of 58, current, and 60, highest in past year, were assigned. The examiner stated that the GAF score of 58 implied moderate limitation in both industrial and social areas. The Veteran's anger and depression limited his employment options but he could work in low-stress positions and with limited contact with co-workers and the public. A VA examination was conducted in July 2007. The examiner noted that the Veteran exhibited symptomatology similar to his August 2004 examination. He was not receiving any mental health treatment. Mental status examination noted he was oriented times 4. His affect, thought processes, and speech were normal. He denied suicidal/homicidal ideation. There was no evidence of psychosis or hallucinations. Memory was grossly intact. Abstraction, insight, and judgment were fair. A GAF score of 60 was assigned. The examiner stated that the GAF score reflects moderate impairment in industrial and social functioning. A VA examination was conducted in December 2008. The Veteran was frustrated and has daily depression because he could not work due to his service-connected right knee disabilities. He has occasional periodic paranoid thoughts and thoughts of suicide. The Veteran preferred to be alone but enjoyed his children. Mental status examination noted the Veteran's dress appropriately groomed. He was oriented times 4. Speech was normal. The Veteran's insight was limited. His judgment was fairly good and there were no apparent cognitive defects. The examiner stated that the Veteran remained significantly depressed. The examiner assigned a GAF of 60. The examiner indicated that this score reflected mild to moderate impairment in industrial and social functioning. The Board acknowledges that the Veteran's PTSD has resulted in some occupational and social impairment. However, all compensable evaluations under the schedular criteria include such impairment. Therefore, the issue is whether the level of the Veteran's occupational and social impairment is of such severity as to warrant a rating in excess of 30 percent. VA examinations and treatment records indicated that the Veteran's level of occupational and social impairment was best summarized as 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). As noted above, this level of impairment is associated with the current 30 percent evaluation under Diagnostic Code 9411. The record does not indicate the level of occupational and social impairment associated with a higher rating to include reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. While the Veteran prefers to be alone, he nevertheless visits with his children establishing his ability to maintain a relationship. Additionally, the Veteran's treatment records describe that a depression screen was negative in June 2009, and that the Veteran's depression was stable on medication in August 2009. The preponderance of the competent and credible evidence reflects that the Veteran's symptoms have not resulted in the level of impairment associated with a higher rating, to include near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. No such impairment was noted on the VA examinations in this case, and it is inconsistent with the findings associated with his level of occupational and social functioning to include the GAF scores assigned therein. The Board acknowledges that the Veteran has indicated symptoms of anger, irritability, occasional suicidal ideation and paranoid thoughts. However, the record does not show it has resulted in the type of impaired impulse control, to include periods of violence, associated with the criteria for a higher rating. The evidence of record shows that the Veteran was appropriately dressed; his speech was normal; his orientation was intact; his intelligence was average; his thought process and content were both found to be unremarkable; there were no hallucinations, inappropriate behavior, or obsessive/ritualistic behavior; and was able to maintain minimum personal hygiene. At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. From June 20, 2011 A VA examination was conducted on June 20, 2011. The Veteran complained of periodic suicidal thoughts, tearfulness, irritability, and anger. He is agitated most days. He complained of poor focus and concentration most days. He no longer socializes with friends. He does not like crowds and avoids being with people. Mental status examination showed the Veteran's appearance was normal. He was oriented times 3. Speech was normal. His thought processes were intact. Concentration, attention, and recall were intact. He was considered competent to handle his funds. The VA examiner noted that the Veteran had significant difficulty with his major depressive disorder, and had moderate impairment in social and occupational functioning. The examiner also noted that the Veteran would have significant impairment in industrial functioning. He assigned a GAF of 60. While the evidence has shown that the Veteran's major depressive disorder has resulted in moderate occupational and social impairment, the evidence does not demonstrate that he has symptoms such as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; or 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 9434. A GAF score of 51-60 is assigned where there are moderate symptoms. Thus, the criteria for a 100 percent disability rating have not been met. At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has undergone several surgeries for which he was assigned 100 percent total ratings. The Board finds that the rating criteria contemplate the symptoms related to the Veteran's low back and psychiatric disabilities. They are productive of manifestations that are contemplated in the respective rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. He is in receipt of service connection for TDIU as of June 20, 2011, and remand for entitlement to TDIU from June 20, 2011, is also warranted. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for a left knee condition; the claim is not reopened. An increased disability rating for low back disability is denied. A rating in excess of 30 percent for major depressive disorder prior to June 20, 2011, is denied. A rating in excess of 70 percent for major depressive disorder as of June 20, 2011, is denied. REMAND As to the Veteran's right knee claim, the evidence reflects that on February 6, 2008, he underwent right knee replacement. The Veteran's right knee disability is currently rated as 20 percent disabling under Diagnostic Code 5257 prior to February 6, 2008, 100 percent disabling under that code effective February 6, 2008, and 30 percent disabling under that code, effective April 1, 2009. He is also separately receiving VA compensation benefits under Diagnostic Code 5010; under that code, he is rated as 20 percent disabling since April 29, 2004. Under Diagnostic Code 5055, (prosthetic replacement of the knee joint), a 100 percent rating is warranted for one year following knee replacement surgery. Under that code, subsequent to the 100 percent rating granted for one year following implantation of the prosthesis, a 30 percent evaluation is the minimum evaluation available. Chronic residuals consisting of severe painful motion or weakness in the affected extremity are rated as 60 percent disabling. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262, which respectively pertain to ankylosis, limitation of extension, and impairment of the tibia and fibula. In light of the foregoing, the Board finds that this issue must be readjudicated by the RO to determine whether a 60 percent rating is warranted under Diagnostic Code 5055, because the current 20 percent rating under Diagnostic Code 5010 is inconsistent with the Ratings Schedule. It was possible to rate the subject disability (impairment of the knee) under the diagnostic code previously used and under the code subsequently selected. As such, the Veteran's right knee issues must be remanded. A remand is also necessary for purposes of further development with respect to the Veteran's claim of entitlement to TDIU. The Veteran meets the combined schedular rating for TDIU under 38 C.F.R. § 4.16(a) (2012). VA must assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Pursuant to VA's duty to assist VA must obtain a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities separately or in combination render him unable to secure or follow a substantially gainful occupation. Soliciting such an opinion is necessary to adjudicate this claim. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In light of the record, the Board finds that a retrospective medical opinion addressing the level of occupational impairment from the Veteran's service-connected disabilities, since September 26, 2003, would be most helpful in determining the appropriate effective date for the grant of the TDIU. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). None of the VA examination reports on file adequately address the question of whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either alone or in the aggregate, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Further, unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). On remand, the RO should conduct all appropriate notification and development, to include providing the Veteran with proper notice under VCAA, obtaining any pertinent outstanding treatment records, and obtaining a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. After all appropriate development has been completed the Veteran's TDIU claim should be adjudicated based on all evidence of record. Finally, 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 in the claims files. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Since the claims file is being returned to the RO, the file should be updated to include VA treatment records not on file. See 38 C.F.R. § 3.159(c)(2) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Any private treatment records not on file and pertaining to the TDIU claim should also be obtained prior to any examination. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU and VA's and the Veteran's responsibilities to provide evidence and information in support these claims. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims folder. 2. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected disabilities. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment not already in the claims file, to specifically include such records from the VA including records stored on Virtual VA but not in the claims file, and associate all obtained records (paper copies) with the claims folders. 3. Notify the Veteran that he may submit statements from himself and others who have observed the Veteran describing their impressions regarding the impact of his right knee disability as well as the impact of his service-connected disabilities on his ability to work. 4. After completion of the above development, schedule the Veteran for a VA examination, to be conducted, if possible, by a vocational specialist, to determine entitlement to TDIU. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, have rendered him unable to secure or follow a substantially gainful occupation at all times prior to June 20, 2011. In offering this impression, the examiner must take into consideration the Veteran's level of education, training and previous work experience. For this purpose, notify the examiner that the Veteran's service-connected disabilities currently consist of (1) bilateral knee instability; (2) bilateral knee arthritis; (3) (4) lumbar spine disability; (5) major depressive disorder; (6) gastritis; and (7) healed fracture of the right fifth metatarsal. The claims folder, and any newly associated evidence, must be made available to and reviewed by the examiner in conjunction with the examination report. The examiner should conduct any appropriate tests and studies required. All findings and conclusions, and the rationale for all opinions expressed by the examiner should be provided in a legible report. 5. Then readjudicate the Veteran's right knee claim as well as his entitlement to a TDIU prior to June 20, 2011. With respect to his right knee claim, the RO must specifically consider Diagnostic Code 5055. If the benefits sought on appeal are not granted in full, the RO should issue a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs