Citation Nr: 1320178 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 04-21 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for major depressive disorder and dysthymia (MDD) prior to September 2, 2003, and over 70 percent thereafter. 2. Entitlement to an initial rating higher than 10 percent for low back disability. prior to August 29, 2011. 3. Entitlement to an initial rating higher than 10 percent for left knee disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran served on active duty from November 1976 to June 1977 and from February 1979 to April 1979. These matters initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction over this case was subsequently transferred to the VARO in Chicago, Illinois, and that office forwarded the appeal to the Board. In its rating decision, the RO granted entitlement to service connection for MDD and low back and left knee disabilities. The RO assigned initial ratings of 50 percent for MDD and 10 percent each for the low back and left knee disabilities. All of the ratings were made effective the date of claim, May 17, 2001 for MDD and January 18, 2001 for the low back and left knee disabilities. The Veteran timely disagreed with the assigned ratings. After receiving additional evidence, the RO assigned a 70 percent rating for MDD, effective September 2, 2003, creating a staged rating as indicated below. The Veteran has continued to seek a higher rating for MDD and the other disabilities. In December 2007, the Board remanded the claims for further development. In August 2011, the Board denied higher ratings for MDD and remanded the other claims for additional development. In a June 2012 Order, the United States Court of Appeals for Veterans Claims (the Court) granted a Joint Motion by counsel for the Veteran and VA to vacate the Board decision and remand the MDD claim to the Board. In September 2012, the Board remanded all of the claims listed on the title page to the RO, via the Appeals Management Center (AMC) for additional development. For the reasons stated below, with regard to the claims being denied, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The overall level of impairment caused by the symptoms of the Veteran's MDD has throughout the appeal period most nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Prior to August 29, 2011, symptoms of the Veteran's low back disability did not more nearly approximate vertebra fracture residuals, ankylosis, moderate limitation of motion, muscle spasm on extreme forward bending, loss of lateral spine motion, forward flexion between 30 and 60 degrees, or combined range of motion not greater than 120 degrees, and there were no incapacitating episodes as defined in the applicable regulation. 3. From August 29, 2011, symptoms of the Veteran's low back disability more nearly approximated muscle spasm on extreme forward bending, but no symptoms approximating severe lumbosacral strain or vertebra fracture residuals, ankylosis, moderate or severe limitation of motion, or forward flexion of the cervical spine to 30 degrees or less. 4. Symptoms of the Veteran's left knee disability did not more nearly approximate compensable limitation of flexion or extension, recurrent subluxation or lateral instability, ankylosis, dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 5. The Veteran's service-connected MDD and low back and left knee disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial rating of 70 percent, but no higher, for MDD have been met prior to September 2, 2003. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DCs) 9433-9434 (2012). 2. The criteria for a rating higher than 70 percent for MDD have not been met from September 2, 2003. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, DCs 9433-9434. 3. The criteria for an initial rating higher than 10 percent for low back disability prior to August 29, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.71a, DC 5237 (2012); 38 C.F.R. § 4.71a, DC 5295 (2001). 4. With resolution of reasonable doubt in the appellant's favor, the criteria for a rating of 20 percent, but no higher, for low back disability from August 29, 2011 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.71a, DC 5237 (2012); 38 C.F.R. § 4.71a, DC 5295 (2001). 5. With resolution of reasonable doubt in the appellant's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As to the claim for a TDIU, as the Board is granting this claim, further discussion of the VCAA with regard to it is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). With regard to the rating claims, as noted above, they arise from the Veteran's disagreement with initial ratings assigned in connection with the grant of service connection for these disabilities. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating or effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to this claim/these claims is unnecessary. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. Pursuant to the Board's September 2012 remand instructions, the RO/AMC obtained copies of the Veteran's VA vocational rehabilitation file, including the August 28, 2003 psychiatric consult report identified by the Board. Also pursuant to the Board's remand instructions, the RO/AMC sent an October 2012 letter asking the Veteran to identify all treatment records, the names of all medical professionals who had indicated he could not work due to his MDD and whether or not he had applied for or was receiving Social Security Administration's (SSA) disability. The Veteran did not respond to this letter, and the RO/AMC was therefore not required to take additional action, complied with its duty to assist, and substantially complied with the Board's remand instructions in this regard. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring claimant to cooperate fully with VA's efforts to obtain federal and non-federal records, including providing identifying information); Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). It has otherwise been indicated that appellant did not have sufficient quarters to qualify for Social Security benefits. As such a further search for records is not indicated. The Board also instructed that the Veteran be afforded additional VA examinations as to the severity of his disabilities and such examinations were scheduled for March 15, 2013. Documents in the claims file reflect that the Veteran failed to appear for the scheduled examinations and did not show good cause for doing so, despite transportation to the VA Medical Center having been provided. The RO/AMC thus substantially complied with the Board's remand instructions in this regard and, given that the claims on appeal are claims for higher initial ratings, the Board will decide the case based on the evidence of record. See 38 C.F.R. § 3.655(a),(b) (where entitlement cannot be established without reexamination, an original compensation claim will be decided based on the evidence of record; Turk v. Peake, 21 Vet. App. 565, 570 (2008) (a claim for a higher initial rating is an "original compensation claim" and not a "claim for increase" for purposes of 38 C.F.R. § 3.655(b)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for higher initial ratings and for a TDIU are thus ready to be considered on the merits. Analysis General Legal Principles Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, however, as shown below, the evidence warrants uniform percent ratings for each disability for which higher ratings are being claimed on appeal. MDD The Veteran's MDD is rated under 38 C.F.R. § 4.130, Diagnostic Codes 9433-9434. All psychiatric disabilities, however, are evaluated under the General Rating Formula for Mental Disorders (general rating formula). Pursuant to the general rating formula, 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 when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, __ F.3d __, __, No. 2012-7114, slip op. at 10-11 (Fed. Cir. Apr. 8, 2013); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, __ F.3d at __, slip op. at 7, 9. The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). A score in between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A score in between 51 and 60 indicates 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 peer or coworkers). The evidence prior to September 2, 2003, which includes recently obtained VA vocational rehabilitation records, reflects that the the overall level of impairment from the MDD symptoms has most nearly approximated the criteria for a 70 percent rating. On VA psychiatric examination in October 2002, the Veteran reported frequent crying episodes, difficulties with concentration and chronic sleep disturbance. He claimed there were times he was unable to get out of bed due to the symptoms of depression. He added he had decreased motivation and sometimes did not show up for work. A mental status evaluation revealed the Veteran was somewhat disheveled, and his hygiene was moderate. There was some psychomotor slowing. His mood was sad and his affect congruent. He was very tearful when describing his in-service stressor. The examiner noted he looked very depressed and sad. He added the Veteran's symptoms of depression had impacted him substantially with interpersonal relationships and the ability to form relationships. The diagnoses were major depressive disorder and dysthymia and the GAF score was 50. The Veteran was seen in a VA outpatient treatment clinic in April 2003. He related he was feeling anxious and agitated lately. His mood was up and down, but generally low. He stated he had a depressed mood about two to three days a week. He described avoidance and mistrust of people. He also said he had occasional nightmares. An examination showed his mood and affect were depressed. The examiner commented the Veteran definitely seemed worse at that visit. He reported more agitation, increased pain and some panic symptoms recently. The examiner indicated that the precipitant was unclear, but the Veteran had lost his job a few months earlier. Similar findings were recorded in August 2003. A GAF score of 40 was assigned following the April and August 2003 visits. As noted further below, the vocational rehabilitation records further now support this increase. The above evidence shows that the MDD caused some symptoms listed in, or equivalent to those in, the criteria for both a 50 percent and 70 percent rating. There were disturbances of motivation and mood and panic (50 percent) as well as some neglect of personal appearance and difficulty in adapting to stressful circumstances (70 percent). The ability to establish and maintain relationships was significantly impacted, to a degree somewhere between difficulty in establishing and maintaining effective work and social relationships and an inability to establish and maintain effective relationships. The GAF scores were similarly on the border of the 41-50 reflecting serious symptoms or impairment and 51-60 reflecting more moderate symptoms or difficulties. As the evidence is approximately evenly balanced as to whether the Veteran's symptoms and level of impairment more nearly approximated the criteria for a 70 percent rating prior to September 2, 2003, the Board will resolve the doubt created by this approximate balance of evidence in favor of the Veteran by granting a 70 percent rating for this time period. 38 C.F.R. §§ 4.3, 4.7. A higher, 100 percent rating is not, however, warranted, either prior to or from September 2, 3003, because the symptoms and impairment did not more nearly approximate the total occupational and social impairment required for such a rating. There is evidence of occupational impairment. As noted by the parties to the Joint Motion, a September 2003 memorandum on determining the infeasibility to achieve a vocational goal indicated that the Veteran was unemployed and his psychiatrist did not feel that his emotional state was sufficiently stable to attend school. Moreover, August 2003 vocational evaluation report and medical report indicated that the Veteran was struggling and it would be better if his symptoms improved before going back to school. In addition, the Board will grant a TDIU below based on the impact on employment of the Veteran's MDD along with his other service-connected disabilities, which reflects that the MDD has had a negative impact on his employability. The evidence does not reflect, however, that neither the symptoms of the Veteran's MDD, including those listed and those not listed in the rating criteria, nor the overall impairment caused by these symptoms, more nearly approximate the total occupational and social impairment required for a 100 percent rating. As noted, the September 2003 memorandum determined that achieving a vocational goal was infeasible, indicating that the Veteran presented with significant anxiety, that he had a nervous demeanor and that he was emotionally fragile. It was stated the Veteran's therapist did not think his emotional condition was sufficiently stable for him to attend school. A February 2004 VA treatment note indicates that the Veteran denied suicidal ideation and hopelessness. He was neatly groomed and there was no indication he was unable to maintain personal hygiene. He had no audio and visual hallucinations or delusions. He had depression and anxiety, mild insomnia, low appetite and energy, mild anhedonia, no hopelessness. He had a mistrust of people, and was not getting out socially. The GAF score was 40, as it was in May 2004. On the September 2004 VA examination, the Veteran indicated that he lived by himself, denied consuming alcohol since 1994, indicated that he spent some time with friends, especially close neighbors, but could not find a steady job because of his depression. On the September 2004 VA psychiatric examination, the examiner reviewed the Veteran's mental health record. He noted that the November 2002 VA examiner had stated that the Veteran's symptoms had a substantial impact, including interfering with his interpersonal relationships, ability to form relationships, and most likely contributed to his vagabond status and homelessness until 1997 when a friend was able to rescue him from that lifestyle and help him find consistent work and find housing. Since that time, the Veteran had worked as a manager of a store and maintained his home and sobriety. The Veteran reported daily symptoms of depression with a severity rating of 10/10. He said the symptoms could go on for some time. He added he sometimes could not function for a whole week. He denied any remissions from his symptoms. He related he had not been able to find work since his friend, who had trained him in the floor covering business, had closed the store in which he had been working. The Veteran complained that he was nervous around people and that he did not like to leave the house. He said he had recurring dreams of the in-service stressor. On examination, there was no impairment of thought process or communication, or hallucinations or delusions. Behavior was appropriate and the Veteran denied current or recent suicidal or homicidal thoughts, ideation, plan, or intent. The Veteran was oriented to person, place, and time, and denied any significant memory loss or other impairment, other than "forgetting things." He denied significant history of obsessive or ritualistic behaviors. He denied a history of panic attacks. The Veteran described having considerable difficulty keeping up with minimal personal hygiene and other basic activities of daily living. He indicated that he had gone up to a week without bathing or eating much. The rate and flow of speech were notably slow. In addition to depression, the Veteran described experiencing anxiety secondary to his concern that his gas and phone would be shut off due to his inability to pay bills. He slept four to five hours with many awakenings during the night and spent a lot of time just lying on the couch and doing nothing. His energy level was rather poor sometimes. The examiner commented it made sense that the Veteran's status of being unemployed had taken quite a toll on him, especially financially, resulting in increased stress and increased depression. The diagnosis was major depressive disorder, moderate severity. The GAF score was 45. The examiner indicated that the Veteran was continuing to seek a job and that, because his unemployment was contributing to the severity of his psychiatric symptoms, finding a job would have a positive impact on his symptoms. As noted by the parties to the Joint Motion, a question as to the adequacy of the September 2004 VA examination has arisen because the examiner felt he could not confirm the Veteran's report that his doctors had felt he could not handle a job at the present time. The parties noted the presence of the August 2003 memorandum indicating that the Veteran was currently unemployed and did not feel that his emotional state was sufficiently stable to attend school. The Board notes that the September 2004 VA examiner's comments reflect that he reviewed the claims file and his statement did not conflict with the August 2003 memorandum, which indicated that indicated that the Veteran's emotional state prevented him from attending school, not that it prevented him from working. The Veteran is, however, competent to report a contemporaneous diagnosis and therefore competent to report that his doctors felt he was unemployable at that time. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the examiner required confirmation of the Veteran's statement in a medical record, the September 2004 VA examination was inadequate for complete rating purposes, especially in view of findings on subsequently received records. The Board instructed that the Veteran be scheduled for a new VA examination and the RO/AMC complied with this instruction and scheduled the examination. The Veteran's failure to appear for the examination without good cause resulted in a lack of a more contemporaneous examination that could have remedied the deficiency in the September 2004 VA examination. The Board notes, however, that it does not rely on the improper statement of the September 2004 examiner in this decision; rather, it accepts that the Veteran was told by qualified physicians that he could not work at that time due to his MDD. A 100 percent rating, however, requires symptoms and impairment that more nearly approximate total occupational and social impairment, and the evidence throughout the appeal period, including the September 2004 examination results (as opposed to the opinion of the examiner) reflect that social impairment was not total and symptoms did not more nearly approximate total impairment. The evidence throughout the appeal period reflects that there was no impairment of thought process, no hallucinations or delusions or suicidal or homicidal ideation, appropriate behavior, and that the Veteran was oriented to person, place and time. In addition, the Veteran denied any significant history of obsessive or ritualistic behaviors and there were no significant panic attacks. Most significantly, the Veteran indicated on the September 2004 VA examination that he spent some time with friends, especially close neighbors. The Board notes that the Veteran indicated on the September 2004 VA examination that he had considerable difficulty keeping up with minimal personal hygiene and other basic activities of daily living. However, even if this constituted an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), the existence of one of the symptoms listed in the criteria for a 100 percent rating does not outweigh the other evidence cited above showing a lack of other symptoms listed in the criteria for a 100 percent rating or others of similar severity, frequency, and duration, and a lack of evidence of the overall level of impairment required for such a rating. As the evidence thus reflects that neither the Veteran's symptoms nor his overall level of impairment more nearly approximated the total social and occupational impairment, he is not entitled to a 100 percent rating at any time during the appeal period. The preponderance of the evidence is therefore against an initial rating higher than 70 percent at any time during the appeal period. Low Back The Veteran's low back disability is rated under 38 C.F.R. § 4.71a, DC 5295. During the pendency of this appeal the criteria for rating disabilities of the spine were amended. In VAOPGCPREC 7-2003, VA's General Counsel held that when a new regulation is issued while a claim is pending, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely "retroactive effects." If applying the new provision would produce such "retroactive effects," VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce "retroactive effects," VA ordinarily must apply the new provision. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). Under DC 5295, a 10 percent rating was warranted for lumbosacral strain with characteristic pain on motion. A 20 percent rating was warranted where there was muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The maximum 40 percent rating was warranted for severe lumbosacral strain, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. In addition, DC 5292 provided for a 20 percent rating for moderate limitation of motion of the lumbar spine and a 40 percent rating for severe limitation of motion. DC 5293 provided a 20 percent rating for moderate recurring attacks of IVDS. A 40 percent rating was warranted for severe, recurring attacks of IVDS with intermittent relief. A 60 percent rating was warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and little intermittent relief. DC 5285 provided for 60 and 100 percent ratings for residuals of vertebral fracture; however, as shown below, there has been no vertebral fracture in this case. Ankylosis of the lumbar and entire spine also warranted higher ratings under DCs 5286 and 5289; however, as shown below, there has been no ankylosis of the spine in this case. As of September 26, 2003, all diseases and injuries of the spine other than intervertebral disc syndrome are to be evaluated under the general rating formula. IVDS is to be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the amended criteria, IVDS is rated either on the total duration of incapacitating episodes over the past 12 months under the Formula for Rating IVDS or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. As shown below, there is no evidence of incapacitating episodes in this case as defined in Note 1 to Formula for Rating IVDS (a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). Note 1 to the General Rating Formula provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code. Under the general rating formula, a 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 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where 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 evaluation is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is provided for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Normal ranges of motion of the thoracolumbar spine include: Flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Finally in this regard, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. On the October 2002 VA examination, all findings were essentially normal. There was no tenderness or muscle spasm, range of motion was flexion approximately 90 degrees, extension 25 to 30 degrees, and lateral flexion and rotation were each to 20 degrees bilaterally, with none causing pain. Muscle and sensory testing were normal, deep tendon reflexes were 2+, and straight leg raising was negative bilaterally. On the September 2004 VA examination, the Veteran described flare-ups several times per year, 7 the previous year, lasting several days during which he was incapacitated and unable to function at all. The Veteran indicated hat his back was about 50 percent of normal endurance and range of motion. Examination showed normal gait and alignment, with tenderness over the paraspinal musculature and sacroiliac joint. Range of motion was flexion to 80 degrees with pain throughout, extension to 20 degrees with pain, lateral flexion and rotation were to 30 degrees bilaterally with pain. The examiner specifically noted that range of motion was not affected by repetition, weakness, or incoordination. Sensory examination showed decreased light touch below the left knee, with normal pinprick on both sides. Muscle testing was a normal 5/5 and reflexes were 3+. On the August 2011 VA examination, the Veteran reported sharp pain multiple times per week, with no radiation. There was weakness and numbness. The Veteran indicated that flare-ups occurred once or twice per month, triggered by movement and alleviated by rest, which limited his range of motion and functional ability. Range of motion was flexion 70 degrees with painful motion at 70 degrees, extension 10 degrees with painful motion at 10 degrees, right lateral flexion to 5 degrees with painful motion at 5 degrees, left lateral flexion to 15 degrees with painful motion at 15 degrees, and rotation to 30 degrees bilaterally with painful motion at 30 degrees. The examiner checked the box indicating that the Veteran was not able to perform repetitive use testing because it was too painful, but he also indicated that range of motion was the same after retentive use testing, that there was no additional limitation following repetitive use testing, that there was no functional loss or impairment, and did not check any of the boxes indicating symptoms on repetitive use. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine and there was guarding and/or muscle spasm, but such did not result in abnormal gait or spinal contour. Muscle strength testing was normal, reflexes and sensory testing were normal, and straight leg raising was negative. There was no radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic symptoms and no IVDS of the thoracolumbar spine. The Veteran occasionally used a wheelchair and constantly used a cane. Additional findings noted were multiple Waddell signs and histrionic behavior on examination. There was no arthritis but there was degenerative disc disease. The above evidence reflects that a rating of 20 percent, but no higher, is warranted from August 29, 2011. Prior to that, a rating higher than 10 percent was not warranted. The primary evidence prior to the amendments, the October 2002 VA examination was essentially normal, with near normal range of motion no tenderness, spasm, or loss of lateral spine motion in the standing position, reflecting that there were no symptoms warranting a higher rating under DC 5295, moderate limitation of lumbar motion warranting a higher rating under DC 5292, ankylosis of the lumbar spine warranting a higher rating under DC 5289, or vertebra fracture residuals warranting a higher rating under DC 5285. On the September 2004 VA examination, range of motion was slightly reduced, but still far more than the flexion between 30 and 60 degrees or combined range of motion less than 120 degrees required for a 20 percent rating under the general rating formula. Moreover, while the Veteran indicated that there were incapacitating flare-ups lasting several days with substantial reduction of range of motion, the examiner specifically found that range of motion was not affected by repetition. The Board finds the examination findings of the trained health care professional who conducted the September 2004 VA examination to be of greater probative weight than the Veteran's lay assertions in this regard. There was no indication of muscle spasm on extreme forward bending or loss of lateral spine motion in the standing position, or reduction in range of motion, ankylosis, or vertebra fracture warranting higher ratings under DCs 5285, 5289, 5292, or 5295. On the August 2011 VA examination, however, the examiner indicated that there was guarding and/or muscle spam that did not result in abnormal gait or spinal contour. This symptomatology warrants a rating of 20 percent, but no higher, under DC 5295, as there were no symptoms approximating severe lumbosacral strain such as Goldthwaite's sign, marked limitation of forward bending, or narrowing or irregularity of joint space. A higher rating is not, however warranted under either the former or amended criteria, because range of motion was still beyond that required for a higher rating under the general rating formula or indicating moderate or severe limitation of motion under DC 5292. While the Veteran again indicated that he experienced flare-ups, there was no indication of additional limitation on repetitive motion testing warranting a higher rating under the former or amended criteria. There was also no evidence of vertebral fracture or ankylosis warranting higher ratings under DCs 5285 and 5289. The above evidence also reflects that there were no objective associated neurologic abnormalities warranting a separate rating under the general rating formula or neurological symptoms warranting a higher rating under DC 5293. Neurological findings were almost wholly normal on all examinations, with only decreased light touch below the left knee, which is not significant enough to constitute mild incomplete paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520. In addition, there were no incapacitating episodes as defined in Note 1 to the general rating formula. For the foregoing reasons, the preponderance of the evidence reflects that a rating of 20 percent, but no higher, is warranted for the Veteran's low back disability from the August 29, 2011 date of the VA examination showing an increase in symptomatology. Left Knee The Veteran's left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5024-5260. DC 5024 is applicable to tenosynovitis and is rated as degenerative arthritis. Under DC 5010, degenerative or traumatic arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. The appropriate diagnostic codes for the knee joint are DCs 5260 and 5261, applicable to limitation of flexion and extension of the leg, respectively. Under DC 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under DC 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider additional functional impairment above and beyond the limitation of motion demonstrated on a particular range of motion test, such as when symptoms are most prevalent ('flare-ups') due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination - assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. On the October 2002 VA examination, range of motion was 0 to 135 degrees, which was smooth without crepitus. There was pain with grinding and tenderness to palpation. On the September 2004 VA examination, the Veteran complained of constant pain, with flare-ups once per month, lasting 2 to 3 days at a time, limiting his function a lot and prohibiting him from doing most of his daily activities. He believed that his knee was weak, 50 percent normal in strength and endurance, as well as stiff with half of normal range of motion. Range of motion was 10 to 110 degrees, with passive-active full extension and 135 degrees of flexion "quite easily." There was pain around the knee throughout range of motion and at the extremes but range of motion was not affected by repetition or weakness. On the August 2011 VA examination, the Veteran indicated that he experienced flare-ups and his pain increased when his left knee locked. Range of motion was flexion to 140 degrees or greater with pain at 95 degrees, and extension 0 degrees with no objective evidence of painful motion. Range of motion was the same after repetitive use testing and there was no additional limitation of motion of the knee following repetitive motion testing or functional loss and/or functional impairment of the knee and lower leg. There was tenderness or pain to palpation for the joint line or soft tissue of the left knee. In this case, neither an evaluation higher than 10 percent for lost motion nor a separate rating is warranted for limitation of flexion and extension because symptoms of the left knee disability have not more nearly approximated limitation of flexion to 45 degrees or limitation of extension to 10 degrees required for 10 percent ratings under DCs 5260 and 5261, even considering pain and the other DeLuca factors. While the Veteran described flare-ups causing general limitation, there was no reduction in range of motion on repetitive motion testing resulting in flexion limited to 45 degrees or extension limited to 10 degrees. To the extent that the Veteran's statements conflict with the examination findings, the Board finds the examination findings of a trained health care professional to be of greater probative weight than the Veteran's general lay statement. There was also no basis for any separate or higher rating under any other potentially applicable diagnostic code. On the October 2002 VA examination, anterior drawer and Lachman's test were negative and the knee was stable to varus and valgus stresses at 30 and 90 degrees. Although there was some apprehension and pain with lateral translation of the patella, the examiner noted there was "absolutely no medial or lateral joint line tenderness and again there is no ligamentous instability." On the September 2004 VA examination, other than pain and hypersensitivity, the knee examination was "otherwise completely unremarkable." The knee was stable with negative varus and valgus test, negative Lachman's test, and negative anterior and posterior drawer test. Similarly, on the August 2011 VA examination, all stability testing was normal and the examiner indicated that there was no evidence or history of recurrent patellar subluxation/dislocation. As the evidence throughout the appeal period reflects a lack of instability, there is no basis for a separate rating DC 5257, applicable to recurrent subluxation or lateral instability. See VAOPGCPREC 23-97; VAOPGCPREC 9-98 (allowing for separate ratings where there is compensable limitation of motion due to arthritis and instability of the knee). In addition, the examination findings including negative Lachman's and McMurray testing indicated that there was no dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. A higher or separate rating is therefore not warranted under DCs 5256, 5257, 5258, 5261, 5262, or 5263. For the foregoing reasons, the preponderance of the evidence reflects that an initial rating higher than 10 percent is not warranted for the Veteran's left knee disability at any time during the appeal period. TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is in receipt of service connection for MDD, now rated 70 percent, and low back and left knee disabilities, each rated 10 percent (with the low back rated 20 percent from August 29, 2011), with a combined rating of 80 percent. He is thus eligible for consideration for a TDIU on a schedular basis. VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). As noted above, some physicians have indicated that the Veteran's MDD by itself has rendered the Veteran unable to obtain or maintain substantially gainful employment, at least at various points during the appeal period. In the September 2004 VA examination report, the VA examiner wrote, "The Veteran is unemployed, and has been for quite some time due to his depression." In an examination report of the same date, there was a functional assessment section for both the left knee and low back. With regard to the left knee, the examiner indicated that the Veteran could walk five blocks and stand for an hour. With regard to the back, the Veteran indicated that he was limited to sitting for about a half an hour, was unable to lift more than 20 pounds, was unable to squat or kneel, and had difficulty sleeping at night. As to whether the Veteran was unemployable due to his left knee and low back disabilities, the examiner wrote that the Veteran stated that he could not do manual labor jobs and, based on his pain and weakness, the examiner concluded that the Veteran was correct and he "probably cannot." Noting that the Veteran could life about 20 pounds, but could walk 5 blocks, stand for an hour, and sit half an hour, the examiner wrote, "so I think he actually could, based on only his back and knee, have a sedentary job." As indicated in the vocational rehabilitation materials, the Veteran has an 11th grade education, and his most significant employment was as a store manager. Given the Veteran's relatively limited educational and occupational experience, the examiner's tentative conclusion that the Veteran could have a sedentary job even though his ability to lift, stand, and walk was significantly limited actually reflects significant limitation of the Veteran's employment opportunities from his service-connected physical disabilities alone. Based on this evidence, the Board finds that when the limitation caused by his physical disabilities are combined with the significant impact that the Veteran's MDD has had on his employment as shown above, the combined effect of these service-connected disabilities is to preclude him from realistically obtaining and maintaining any form of gainful employment. Entitlement to a TDIU is therefore warranted. Extraschedular As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's MDD, low back, and left knee disabilities are fully contemplated by the applicable rating criteria. With regard to MDD, the symptoms are fully contemplated by the applicable rating criteria. As shown above, the criteria include both the symptoms listed and the overall level of impairment. Moreover, as noted, the courts have indicated that the general rating formula requires an analysis of whether the symptoms or others of similar severity, frequency, and duration cause the level of impairment required for the appropriate rating. The Board has thus considered all psychiatric symptoms indicated in lay and medical evidence and not only those listed in the general rating formula, as well as the overall level of impairment, in arriving at the 70 percent rating, and consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Similarly, the criteria in the general rating formula for disabilities of the spine indicate that they are to be considered with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals. Moreover, the symptoms of the left knee disability were considered in the discussion of all potentially applicable diagnostic codes. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for consideration of an extraschedular rating for MDD or low back or left knee disability is not warranted. 38 C.F.R. § 3.321(b)(1). Conclusion For the foregoing reasons, application of the benefit of the doubt doctrine warrants the granting of an initial 70 percent rating for MDD prior to September 2, 2003 and the remaining conclusions are supported by the preponderance of the evidence, rendering the benefit of the doubt doctrine inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). An initial rating of 70 percent, but no higher, for MDD prior to September 2, 2003, a rating of 20 percent, but no higher, for low back disability from August 29, 2011, and a TDIU are warranted, and the remaining claims must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating of 70 percent, but no higher, for MDD prior to September 2, 2003 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating higher than 70 percent for MDD from September 2, 2003 is denied. Entitlement to an initial rating higher than 10 percent for low back disability prior to August 29, 2011 is denied. Entitlement to a rating of 20 percent, but no higher, for low back disability from August 29, 2011 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating higher than 10 percent for left knee disability is denied. Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs