Citation Nr: 1322496 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 08-00 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to March 25, 2009, and in excess of 70 percent thereafter. 2. Entitlement to an initial disability rating in excess of 10 percent for chronic right elbow strain. 3. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis. 4. Entitlement to an initial compensable disability rating for plantar fasciitis with mild pes planus of the right foot prior to April 13, 2013, and in excess of 20 percent thereafter. 5. Entitlement to an initial compensable disability rating for plantar fasciitis with mild pes planus of the left foot prior to April 13, 2013, and in excess of 20 percent thereafter. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to July 1984, August 1989 to July 1992, and from November 2004 to February 2006, with additional time served in the National Guard. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied service connection for a bilateral hearing loss disability and tinnitus, granted service connection for chronic right elbow strain at a 10 percent disability rating, granted service connection for right knee patellofemoral pain syndrome at a noncompensable disability rating, granted service connection for PTSD at a 10 percent disability rating, and granted service connection for bilateral plantar fasciitis with mild pes planus at a noncompensable disability rating. The claims folder was subsequently returned to the RO in Montgomery, Alabama. In an October 2011 decision, the Board denied service connection for bilateral hearing loss disability and granted service connection for tinnitus, thus removing those claims from appellate status. The Board also remanded the claims for increased ratings for PTSD, right elbow disability, right knee disability, and bilateral foot disabilities for additional development. In November 2009, September 2012, and October 2012 rating decisions, the RO and Appeals Management Center increased the disability ratings for PTSD, right knee disability, and bilateral foot disabilities. Inasmuch as higher ratings are available for these disabilities, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims for higher ratings remain viable on appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). On his January 2008 VA Form 9, the Veteran had requested a hearing before a Veterans Law Judge to be held at the RO (Travel Board hearing). However, he later withdrew this request in a February 2009 statement. The issue of entitlement to increased ratings for the Veterans right and left foot disabilities and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to March 25, 2009, PTSD was manifest by flattened affect, impairment of short-term memory, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Occupational and social impairment with deficiencies in most areas 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 ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships, has not been shown. 2. From March 25, 2009, PTSD is manifest by intermittent suicidal ideation, near-continuous depression, continued sleep disturbances, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Total occupational and social impairment, gross impairment in thought processes, persistent delusions or hallucinations, disorientation to time or place, and memory loss for own name have not been shown. 3. Throughout the period of appeal, the Veteran's right elbow strain has been manifested by pain and limitation of motion, without limitation of flexion to 90 degrees or less nor limitation of extension to 75 degrees or more short of full extension, including limitation due to pain. 4. Throughout the period pertinent to the appeal, the Veteran's right knee disability is manifest by subjective complaints of pain and weakness without incapacitating episodes, flexion to 120 degrees, and full extension, with consideration of pain, but without objective evidence of recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD prior to March 25, 2009, and in excess of 70 percent thereafter, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a disability rating higher than 10 percent for right elbow strain has not been met or approximated. 38 U.S.C.A. §§ 1155, 51075103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5206, 5207. 3. The criteria for a rating in excess of 10 percent for a right knee disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. The Veterans Claims Assistance Act (VCAA) With regard to the Veteran's claims VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). For initial rating claims, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's VA and private treatment records have been obtained to the extent possible and associated with the claims file. The Veteran has at no time referenced any further outstanding records that he wanted VA to obtain. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran was provided with VA examinations with regard to his service-connected PTSD, right elbow disability, right knee disability, and bilateral foot disabilities most recently in March 2012 and April 2012. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no objective evidence indicating that there has been a material change in the severity of these service-connected disabilities since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The report of these examinations reflects that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate testing, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The information obtained during these examinations is sufficient to rate the Veteran's disabilities under the appropriate diagnostic criteria. In light of the foregoing, the Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, based on the association of recent VA medical treatment center records with the Virtual VA file and the thoroughness of the aforementioned VA March and April 2012 examination reports, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Initial Ratings A. General Law and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. As these claims are on appeal from a decision that granted service connection and assigned an initial rating, "staged" ratings may be assigned, if warranted by the evidence. Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. B. PTSD The regulations establish a general rating formula for mental disabilities. 38 C.F.R. § 4.130 (2012). Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). PTSD is evaluated under Diagnostic Code 9411. The criteria for a 10 percent rating are as follows: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. The criteria for a 30 percent rating are as follows: 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, and mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent rating are as follows: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or coworkers). GAF scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasional failure to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. 38 C.F.R. § 4.130 (incorporating by reference VA's adoption of the DSM-IV for rating purposes). The Veteran's PTSD is currently assigned a disability rating of 50 percent under Diagnostic Code 9411 for the period prior to March 25, 2009, and a rating of 70 percent thereafter. The Veteran seeks higher initial ratings. On VA examination in May 2006, the Veteran reported that he avoided crowds, war movies, and situations that reminded him of his traumatic experiences while on active duty. He had been married twice and had a son. He was not taking any psychiatric medication. He experienced nightmares and flashbacks about two to three times a week. Frequent depression and nervousness was reported. He said he had irritability and trouble sleeping. The examiner found that the Veteran had an increased startle response. The Veteran's affect was constricted, and he displayed a nervous and depressed mood. No hallucinations, suicidal ideation, or homicidal ideation was observed. The Veteran's thought process was deemed intact, and orientation and memory were preserved. Insight and judgment were intact. The examiner opined that the Veteran had moderate PTSD and assigned a GAF score of 60. A VA outpatient record from October 2006 reflects that the Veteran experienced poor sleep habits, nightmares, intrusive thoughts, anxiety problems, and flashbacks. The note indicates that the Veteran had a neat appearance, good speech, good eye contact, appropriate behavior, and good rapport. His thought processes and memory were intact. No paranoia, hallucinations, homicidal ideation, or suicidal ideation were present. A February 2008 VA treatment record reflects that the Veteran experienced nightmares, intrusive thoughts, irritability, exaggerated startle response, insomnia, poor concentration, and hypervigilance. The examiner assigned a GAF score of 45. In April 2008, the Veteran underwent a psychosocial assessment by a private examiner. It was noted that the Veteran was married. The Veteran reported experiencing suicidal thoughts at times, although he had no plans. He experienced flashbacks, night terrors, and depression. The examiner felt that the Veteran was well groomed, nourished, oriented, and had fair insight and judgment. Short and long term problems with memory were noted. At times, the Veteran's thought flow was distorted. The examiner assigned a GAF score of 65. On VA compensation and pension examination in March 2009, the Veteran reported that he was in the process of obtaining a divorce. The examiner remarked that the Veteran was clean and casually attired with trim hair. His speech was within normal limits, and he maintained adequate eye contact. The examiner deemed the Veteran to be alert and lucid. He displayed a solemn affect. The Veteran reported that he obtained about four hours of sleep per night and experienced nightmares around three to four times a week. He said he was irritable and short tempered. The examiner stated that the Veteran's immediate, recent, and remote memory skills were grossly intact. No gross impairment in cognitive functioning or communication skills was found. The Veteran reported occasional hallucinations but no suicidal or homicidal ideation. He experienced anxiety but no panic attacks. Flashbacks occurred around seven to 10 times per month. The examiner gave a diagnosis of chronic PTSD and assigned a GAF score of 45. The examiner opined that the Veteran's PTSD symptoms had a moderate to severe negative impact on his occupational functioning and social relationships. On VA examination in October 2012, the examiner opined that the Veteran's symptoms were best described as "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood ." The examiner did not find total occupational and social impairment. It was noted that the Veteran was currently married to his second wife of 13 years. Their relationship was described as fair. It was further noted that the Veteran experienced anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and impaired impulse control. After carefully reviewing the evidence of record, the Board concludes that prior to March 25, 2009, the occupational and social impairment from the Veteran's PTSD more nearly approximated the impairment required for a 50 percent rating than that required for a 70 percent rating. The evidence of record shows that prior to March 25, 2009, the Veteran's PTSD caused moderate impairment of occupational and social functioning with reduced reliability and productivity, which is squarely within the criteria for the 50 percent rating. A schedular rating of 70 percent rating is awarded for occupational and social impairment with deficiencies in most areas, but prior to March 25, 2009; the evidence did not show the Veteran's PTSD impairment more nearly approximates such impairment. The Board notes that the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). To this point, specific symptoms associated with the 70 percent rating include suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Review of the evidence of record, shows that prior to March 2009, the Veteran's PTSD caused difficulty in adapting to stressful circumstances, impaired impulse control, and an instance of suicidal ideation, but the other symptoms were absent. The record for this period repeatedly showed speech of a normal rate and speed; no panic attacks; no difficulty in understanding complex commands; slight impairment of memory; and no impaired abstract thinking. Notably, the Veteran himself has not claimed that he experienced such symptoms as obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near continuous panic, spacial disorientation, or neglect of personal appearance and hygiene that are characteristic of the 70 percent rating prior to March 2009. The Board has also considered the GAF scores assigned during this period, and the definition of those scores. However, when considered in light of the actual symptoms demonstrated, none of the assigned GAF scores, alone, provide a basis for assignment of a disability rating higher than 50 percent for the Veteran's service-connected PTSD at any time prior to March 25, 2009. Although a March 2009 VA treatment record reflects a GAF score of 45, which could contemplate symptoms more severe than the 50 percent disability rating assigned for this period, the score does not appear to be supported by the actual symptoms recorded. Significantly, the May 2006 VA examiner assigned a GAF score of 60, and the April 2008 private examiner assigned a GAF score of 65. Neither of these scores represents the increased symptomatology necessary to support a rating in excess of 50 percent. As noted above, the Veteran is in receipt of a 70 percent disability rating effective March 25, 2009. The Board finds that the Veteran's PTSD has not met the criteria for the next higher, 100 percent, rating. The objective medical evidence does not reflect such symptoms as a gross impairment in thought processes or communication, grossly inappropriate behavior, a persistent danger of hurting self or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), a disorientation to time or place, or a memory loss for names of close relatives, own occupation, or own name, that are characteristic of the 100 percent rating pursuant to VA's rating schedule. Although a history of hallucinations has been noted, they have not been shown by the other evidence of record to be persistent. The evidence of record does not reflect a total occupational and social impairment, and without total occupational and social impairment, a 100 percent evaluation is not warranted. The Board notes that the March 2009 VA examiner assigned a GAF score of 45. This score is indicative of serious symptoms and serious impairment in social and occupational functioning, and thus are representative of the criteria for a 70 percent, and no higher, rating. C. Right Elbow The Veteran's right elbow strain is currently assigned a disability rating of 10 percent under Diagnostic Code 5099-5019, indicating that he has an unlisted disability rated on the basis of bursitis. The note following Diagnostic Code 5019 (bursitis) indicates that the disease will be rated on limitation of motion of affected parts, as arthritis, degenerative. Arthritis is rated based on limitation of motion of the affected joint. If the range of motion is noncompensable, a 10 percent rating is assigned for each major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion of the elbow is rated at higher than 10 percent if flexion is limited to 90 degrees or less, or if extension is limited to 75 degrees or more short of full extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5206, 5207. As noted above, when evaluation of a musculo-skeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's right elbow strain is currently assigned a disability rating of 10 percent under Diagnostic Code 5099-5019. The Veteran is right handed. On VA examination in May 2006, the Veteran reported experiencing daily achy pain in his right elbow. He treated his pain with Tramadol; he did not use a brace or splint. No incapacitating flare-ups were reported. The examiner found pinpoint tenderness at the bursa of the right elbow. Flexion was from 0 to 145 degrees with minimal limitation due to pain. Forearm supination was to 85 degrees with moderate limitation due to pain. Forearm pronation was to 80 degrees with minimal limitation due to pain. Repetitive motion resulted in no additional loss in range of motion. An X-ray yielded normal results. On VA examination in March 2009, the Veteran reported experiencing right elbow flare-ups at least once or twice a week. He treated his flare-ups with muscle relaxant and analgesic cream. Right elbow flexion was from 0 to 145 degrees with moderate limitation due to pain. Forearm pronation was from 0 to 80 degrees with moderate limitation due to pain. There was no increased weakness, incoordination, or additional loss in range of motion as a result of repetitive motion. On VA examination in April 2012, the Veteran reported experiencing right elbow flare-ups approximately two times per week. Flexion of the right elbow was to 130 degrees with no objective evidence of painful motion. Extension was to 0 degrees with no objective evidence of painful motion. No additional limitation of motion was found on repetitive testing. No flail joint, joint fracture, or impairment of supination or pronation was found. As reviewed above, throughout the period of appeal, medical treatment records and examination reports have contained measurements of ranges of motion of the Veteran's right elbow. Those records have never shown flexion limited to 90 degrees or less nor extension limited to 75 degrees or more short of full extension. Additionally, there has been no medical evidence that factors such as pain or weakness have reduced function of the elbow to such extents. As such, the effects of strain in the right elbow have not produced impairment that meets the criteria for a rating higher than 10 percent at any time throughout the period of appeal. D. Right Knee The Veteran's right knee disability is currently assigned a disability rating of 10 percent under Diagnostic Code 5260, for limitation of flexion of the leg. 38 C.F.R. § 4.71a. Under DC 5260, a noncompensable rating is assigned when flexion is limited to 60 degrees. A rating of 10 percent requires limitation of flexion to 45 degrees. A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. As noted above, when evaluation of a musculo-skeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). On VA examination in May 2006, the Veteran reported experiencing knee pain on prolonged walking or standing. He said he experienced occasional swelling, but he did not need to use crutches, braces, or canes. No incapacitating flare-ups were reported. The examiner observed no abnormalities of posture or gait. Right knee forward flexion was from 0 to 140 degrees with minimal limitation due to pain. Extension of the right knee was full with minimal limitation due to pain. The examiner found no knee instability. Repetitive motion resulted in no additional loss in range of motion. An X-ray yielded normal results. In July 2006, the Veteran told a VA treatment provider that his knees would give way while walking. It was noted that the Veteran worked at a correctional facility and was on his feet for most of his shift. A July 2007 VA treatment note reflects that the Veteran experienced right knee pain. An X-ray yielded negative results. The examiner diagnosed tendonitis. In February 2009, the Veteran reported to a VA treatment provider that his right knee gave out on him. He said that six months previously, he fell down a flight of stairs because of his knees. He said that his knee gave out on him at least once or twice a week. The examiner observed tenderness and some swelling of the knee. On VA examination in March 2009, the Veteran complained of swelling and aches. He said that prolonged standing, walking, or climbing stairs increased his pain and swelling. It was noted that the Veteran did not use a knee brace or support. No incapacitating flare-ups were reported. The examiner observed swelling and crepitus. Flexion of the right knee was from 0 to 120 degrees with moderate limitation due to pain. Extension was full with moderate limitation due to pain. No increased weakness, incoordination, instability, or loss of range of motion occurred on repetitive motion. An MRI taken in July 2009 revealed intact cruciate ligaments, extensor mechanism, and collateral ligaments. There were also patellofemoral joint degenerative changes and a Baker's cyst. On VA examination in April 2012, the Veteran complained of daily right knee pain flare-ups. Right knee flexion was to 130 degrees with pain at 130 degrees. Extension was to 0 degrees with no objective evidence of pain. No additional limitation of motion was found on repetitive testing. Anterior instability, posterior instability, and medial-lateral instability tests yielded normal results. The examiner found no evidence of recurrent patellar subluxation or dislocation. No meniscal conditions were found. The examiner opined that the Veteran's right knee disability was mild. Considering the pertinent facts in light of the above-noted criteria, the Board finds that there is no basis for assignment of a disability rating higher than 10 percent under DC 5260 or DC 5261. During the time period relevant to this appeal, the evidence reflects that right knee flexion was limited, at worst, to 120 degrees. The aforementioned flexion measurement is consistent with no more than a 0 percent (noncompensable) rating under DC 5260. The Board points out that during the time period relevant to this appeal, there has been no evidence of limitation of extension of the right knee. Hence, the extension measurements are also consistent with no more than a 0 percent (noncompensable) rating under DC 5261. The Board recognizes that VA examination has revealed subjective complaints of pain and weakness, but without incapacitating episodes. The Board observes that, given the Veteran's painful-albeit, noncompensable-right knee motion, and other symptoms, the initial 10 percent rating assigned appears to be consistent with DeLuca, 38 C.F.R. § 4.40, 4.45, and 4.59 (recognizing the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). However, the medical evidence reflects that no higher rating is assignable, even when functional loss due to pain, weakness and other factors is considered. The Board has alternatively considered whether a higher rating is assignable on the basis of recurrent subluxation or lateral instability. Under DC 5257 other impairment of the knee, such as recurrent subluxation or lateral instability 10, 20, and 30 percent ratings, are assignable for slight, moderate, and severe impairment, respectively. 38 C.F.R. § 4.71a. However, based on the objective findings, the Board concludes that there is no basis for assignment of a separate rating under DC 5257. Despite the Veteran's complaints of instability, there is no objective evidence which indicates instability in the right knee. In fact, VA examiners in May 2006, March 2009, and April 2012 all specifically found no instability present in the Veteran's right knee. The Board finds that the VA medical examination reports outweigh the Veteran's contentions as the VA examination reports were created by objective medical personnel impartially reporting the results of a medical examination. Concerning the Veteran's statements, the Board recognizes that that personal interest may affect the credibility of the evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds that there is no basis for a separate rating for instability as the VA medical reports outweigh the Veteran's contentions. The Board has also considered whether there is any basis for assignment of a higher rating for the right knee disability under any other potentially applicable diagnostic code. However, in the absence of any ankylosis, dislocated or removed cartilage, or other deformity, evaluation of the right knee under any other diagnostic code for evaluating pertaining to musculoskeletal disability of the lower extremities-DC 5256, 5258, 5259, 5262, or 5263-is not appropriate. See 38 C.F.R. 4.71a. Moreover, the disability is not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. E. Extraschedular Considerations The Board has considered whether the record warrants referral for consideration of extraschedular ratings for the Veteran's PTSD, right elbow disability, and right knee disability. The symptoms of and impairment due to those disabilities are adequately addressed by the schedular ratings that the RO and AMC have assigned. The rating schedule addresses the occupational impairment produced by those disabilities, and provides for higher ratings for disabilities more severe than the Veteran's. Because the criteria in the rating schedule are adequate, it is not necessary to refer those rating claims for consideration of extraschedular ratings. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an initial disability rating in excess of 30 percent for PTSD prior to March 25, 2009, and in excess of 70 percent thereafter, is denied. Entitlement to an initial disability rating in excess of 10 percent for chronic right elbow strain is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis is denied. REMAND A. Right and Left Foot Pes Planus In an informal hearing brief located in the Veteran's Virtual VA folder, the Veteran's accredited representative argues that remand is necessary to afford the Veteran a new examination in connection with his claim for higher ratings for his bilateral foot disabilities. The Board agrees. The Veteran was last afforded VA foot examinations on April 5, 2012, and again on April 14, 2012. Significant discrepancies exist between the reports of these two examinations. For example, the April 5 examiner remarked that there was no indication of foot swelling on use; the April 14 examiner found swelling on use. The April 5 examiner found no objective evidence of marked deformity of the feet; the April 14 examiner found evidence of marked deformity. Similarly, the April 5 examiner said there was not marked pronation; the April 14 examiner found marked pronation. As these two examination reports, created within days of each other, contained strikingly different observations, the actual symptomatology of the Veteran's bilateral pes planus disabilities remains unclear. Consequently, remand is required for another VA examination to reconcile the discrepancies between the April 5 and April 14 2012 VA examination reports. B. TDIU In this case, the report of the March 2012 psychiatric examination reflects that the Veteran's PTSD made it very difficult for him to work. The examiner noted that the Veteran's PTSD symptoms had led to poor performance and disciplinary action at his job. The examiner opined that it seemed very likely that continued work at the Veteran's employment in a correctional facility placed the Veteran at high risk for continued worsening of his PTSD symptoms. The examiner stated that it was unknown at that time if the Veteran would be able to function at a higher level in a less stressful work environment. Later, in September 2012, the Veteran received a medical discharge from the National Guard due to, in part, his PTSD. Given the statements from the March 2012 psychiatric examiner and the Veteran's subsequent medical discharge from the National Guard, the Board finds the claim for a TDIU is essentially a component of the claim for a higher rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that where a Veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU). The Board notes, however, that the RO has not considered the Veteran's entitlement to a TDIU. Thus, the Board finds that, after giving the Veteran an opportunity to file a formal claim for a TDIU, and completing the other actions noted below, the RO should adjudicate this matter in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU. 2. The AMC/RO should send to the Veteran and his representative a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claim for a TDIU. The RO's letter should specifically explain how to establish entitlement to a TDIU. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Thereafter, the RO should schedule the Veteran for a VA examination, by an appropriate specialist, to assess the current severity of his bilateral pes planus. The claims file must be made available for review of the Veteran's pertinent medical history, including, in particular, the records of his recent treatment. The examiner must indicate whether such review was accomplished. The examination should include any diagnostic testing or studies deemed necessary. Based on a comprehensive review of the claims folder, as well as a current physical examination of the Veteran, the examiner should discuss all symptoms and impairments associated with the bilateral plantar fasciitis with mild pes planus, including whether it is mild, moderate, severe, or pronounced; whether the weight-bearing line is over or medial to the great toe; whether there is inward bowing of the tendo achillis, pain on manipulation and use of the feet and whether such pain is accentuated upon manipulation and use, marked deformity (pronation, abduction, etc.), swelling on use, characteristic callosities, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation that is not improved by orthopedic shoes or appliances; and any other associated functional impairment. Finally, the examiner should indicate the effect the Veteran's bilateral feet disorder has on his ability to obtain and maintain gainful employment. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claims in light of all pertinent evidence and legal authority (to include 38 C.F.R. §§ 3.321(b), 4.16(b)). 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate S SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs