Citation Nr: 1322880 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-31 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), rated as 10 percent disabling for the period beginning November 28, 2003, 30 percent disabling for the period between July 6, 2010 and July 25, 2012, and 50 percent disabling thereafter. 2. Entitlement to an increased initial rating for mechanical low back pain, rated as 10 percent disabling for the period prior to July 26, 2012 and 20 percent disabling thereafter. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from May 1997 to September 1997 and from February 2003 to November 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and December 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. On his October 2008 and April 2010 substantive appeals, the Veteran requested a hearing before the Board at a local VA office. In May 2010, he withdrew his request for a hearing in accordance with 38 C.F.R. § 20.704(e) (2012). The Board will therefore proceed with a decision in this case. There is some question in the record as to whether the claim for entitlement to service connection for sleep apnea is properly before the Board. The Veteran disagreed with the denial of the claim in the December 2008 rating decision on appeal and a statement of the case (SOC) was issued in April 2010. A substantive appeal was received from the Veteran later that month. In November 2010, the Veteran sent VA a letter including another notice of disagreement (NOD) for the denial of service connection for sleep apnea and a "2nd request" for an appeal. The RO responded with a January 2011 letter notifying the Veteran that her November 2010 NOD could not be accepted as the prior appeal was considered closed as a timely substantive appeal was not received. Despite the characterization of the appeal as closed, the issue of entitlement to service connection for sleep apnea was included on an October 2012 supplemental statement of the case (SSOC) and the claim was certified to the Board in May 2013. The Board notes that a timely substantive appeal was received from the Veteran in April 2010, and the appeal was perfected. See 38 C.F.R. § 20.202. Thus, the claim for entitlement to service connection for sleep apnea is properly before the Board. In November 2006, the Veteran was provided a SOC addressing an appeal for entitlement to service connection for tension headaches. She submitted a substantive appeal, but it was not received by VA until June 2007, more than six months after the issuance of the SOC and more than a year after the September 2005 rating decision denying the claim. In July 2007, VA notified the Veteran that her substantive appeal was not timely and informed him that the June 2007 substantive appeal would be treated as a claim to reopen. Therefore, the claim for whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for tension headaches has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to September 26, 2007, the Veteran's PTSD manifested moderate symptoms that most nearly approximated occupational and social impairment with reduced reliability and productivity. 2. For the period beginning September 26, 2007, the Veteran's PTSD manifested deficiencies in most areas of work, school, family relationships, thinking, judgment and mood without total occupational and social impairment. 3. For the period prior to September 26, 2007, the Veteran's mechanical low back pain manifested forward flexion that most nearly approximated 90 degrees with a combined range of motion to 240 degrees without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 4. For the period beginning September 26, 2007, the Veteran's mechanical low back pain manifests orthopedic impairment with forward flexion that most nearly approximates 50 degrees without ankylosis. 5. For the period beginning July 26, 2012, the Veteran's mechanical low back pain manifests neurological impairment of the left lower extremity that most nearly approximates moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but not higher, for PTSD for the period prior to September 26, 2007 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a rating of 70 percent, but not higher, for PTSD for the period beginning September 26, 2007 have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an initial rating in excess of 10 percent for mechanical low back pain for the period prior to September 26, 2007 have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5235-5243. 4. The criteria for a rating of 20 percent, but not higher, for orthopedic impairment from mechanical low back pain for the period beginning September 26, 2007 have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5235-5243. 5. The criteria for a separate rating of 20 percent, but not higher, for neurological impairment of the left lower extremity for the period beginning July 26, 2012 have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). PTSD Service connection for PTSD was granted in the November 2006 rating decision on appeal. An initial 10 percent evaluation was assigned effective November 28, 2003. In a November 2010 rating decision, an increased 30 percent evaluation was assigned effective July 6, 2010. Two years later, in an October 2012 rating decision, an increased 50 percent evaluation was assigned effective July 26, 2012. Thus, the Veteran's PTSD is rated as 10 percent disabling for the period beginning November 28, 2003, 30 percent disabling for the period between July 6, 2010, and July 25, 2012, and 50 percent disabling thereafter. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's PTSD is currently assigned staged disability ratings ranging from 10 to 50 percent under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The Veteran maintains that increased evaluations are warranted throughout the claims period as her psychiatric symptoms are more severe than suggested by the currently assigned ratings. Under the general rating formula, a 10 percent rating is warranted for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted when the mental disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). Id. 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. Id. A maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. For the period prior to September 26, 2007, the Veteran's PTSD most nearly approximated the criteria associated with an initial 50 percent evaluation. With respect to the schedular criteria, the Veteran manifested several symptoms specifically associated with a 50 percent rating, including disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships. Treatment records from the El Paso VA Medical Center (VAMC) and a September 2004 VA examination report also document symptoms such as nightmares, depression, hyperarousal, and intrusive thoughts of traumatic experiences during service. The Veteran's Global Assessment of Functioning (GAF) scores have also established the presence of moderate PTSD symptoms during this period. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2009)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." For the period prior to September 26, 2007, the Veteran's GAF scores ranged from 58 to 60, consistent with moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning). Id. The Board finds that the moderate symptoms and impairment endorsed by the Veteran most nearly approximate an increased 50 percent rating during this period. The Veteran's occupational and social impairment during the period prior to September 26, 2007 is also moderate and is contemplated by an increased 50 percent evaluation. During this time, the Veteran endorsed symptoms such as social isolation and difficulty getting along with others at work and her overall impairment to social and occupational functioning is best characterized as reduced reliability and productivity. While receiving treatment at the El Paso VAMC in August 2004, she reported that she occasionally went out with some close friends and had recently begun attending church. At the time of the September 2004 VA examination she had recently divorced, but continued to date throughout the claims period. The Veteran also maintained a close relationship with her mother during this period, though she stated in April 2007 at the VAMC that they had some problems. Regarding occupational functioning, the September 2004 VA examiner found that the Veteran had no occupational impairment due to PTSD. While the Veteran stated in a June 2004 letter that she was forced to leave her job at a credit collection agency due to symptoms associated with PTSD, VA treatment records document that she was attending school full-time during this period, and obtained an associate degree in psychology by December 2004. She continued to attend school to obtain a medical technologist certification and a bachelor's degree. Thus, the Veteran clearly had difficulty establishing and maintaining effective work and social relationships during this period, but remained close to her friends and family and was able to pursue her educational goals. The Board has considered whether a rating in excess of 50 percent is warranted during the period prior to September 26, 2007. The criteria for a 70 percent rating for a psychiatric disability are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Although the Veteran clearly experienced some disturbances to mood and family relations during this period, there was no impairment to work, school, judgment, or thinking. Regarding the specific symptoms associated with a 70 percent evaluation, the Veteran reported to her VAMC health care provider having some thoughts of suicide in August and December 2004, but did not endorse any of the other symptoms contemplated by an increased rating. She never manifested obsessional rituals, abnormal speech, depression that resulted in an inability to function independently, or neglect of her personal appearance. The Veteran also clearly did not manifest an inability to establish and maintain effective relationships. The weight of the evidence therefore demonstrates that the Veteran's PTSD most nearly approximated the criteria associated with an initial 50 percent rating, but not higher, during the period prior to September 26, 2007. For the period beginning September 26, 2007, the Board finds that the Veteran's PTSD most nearly approximates a 70 percent evaluation under the general rating formula. The severity and number of the Veteran's psychiatric symptoms clearly increased during this period, and she manifested greater occupational and social impairment. As noted above, the criteria pertaining to a 70 percent evaluation are met with a showing of deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling, supra. During this period, the Veteran experienced increasing difficulties at work, the disintegration of her relationship with her mother, and deficiencies in judgment. She also endorsed several of the specific symptoms associated with a 70 percent rating, including increased suicidal ideation, near-continuous depression, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. A VA examiner who interviewed the Veteran and reviewed the claims file in July 2010 also specifically found that the Veteran met the criteria for an increased 70 percent rating. The Veteran's social functioning clearly declined during the period beginning September 26, 2007. During a September 2007 VA examination, she reported having recently gotten married, but was experiencing a worsening relationship with her mother and no longer went out with her friends. She also experienced a low sex drive due to depression which negatively impacted her new marriage. The September 2007 VA examiner also concluded that the Veteran manifested significant avoidance symptoms. Similar findings were made by the July 2010 VA examiner, who noted that the Veteran had no close friends, manifested more difficulty managing interpersonal relationships, and continued to have a contentious relationship with her mother. The July 2010 VA examiner specifically found that the Veteran's quality of life had slowly declined over the last three years. Most recently, during the July 2012 VA examination, the Veteran reported that she no longer had any contact with her mother and experienced increasing distance from her husband. With respect to occupational impairment, the Veteran also manifested a decline in functioning during the period beginning September 26, 2007. At the time of the September 2007 VA examination, the Veteran was working as a hospital clerk and reported having difficulties at work due to her social isolation. During a January 2009 visit to the VAMC, she reported being placed on probation at work due to medical records access issues involving her ex-husband. By the time of the July 2010 VA examination, she was experiencing more problems at work due to anger management issues, poor memory and concentration, and social isolation. Most recently, upon VA examination in July 2012, the Veteran reported having difficulty with patients at work due to impaired judgment and impulse control. The record therefore shows that the Veteran's manifested decline in occupational functioning throughout the period beginning September 26, 2007 due to PTSD symptoms. A rating in excess of 70 percent is not warranted during this period as the evidence does not establish the presence of total occupational and social impairment resulting from the Veteran's PTSD. As noted above, the evidence of record indicates the presence of serious impairment to the Veteran's functioning, but does not establish total occupational and social impairment. The Veteran remained married throughout the period beginning September 26, 2007 and described her husband as supportive during a December 2009 traumatic brain injury (TBI) psychology evaluation at the VAMC. Similarly, while she experienced impairment to work functioning and was placed on probation in January 2009, the Veteran remained employed at the El Paso VAMC as a medical assistant clerk throughout the claims period. Although the September 2007 VA examiner opined that the Veteran manifested total impairment due to PTSD, the Board finds that this conclusion is at odds with the specific findings made by the examiner. During the September 2007 VA examination, the Veteran reported that she was employed and had recently married. The examiner also assigned a GAF score of 68, consistent with only mild symptoms or some difficulty in social, occupational, or school functioning. DSM-IV at 46-47 (1994). The September 2007 VA examination report therefore contains inconsistencies regarding the true severity of the Veteran's PTSD symptoms and impairment. After review of the record as a whole, the Board finds that the Veteran has clearly not manifested occupational and social impairment that most nearly approximates total during the period beginning September 26, 2007. The preponderance of the evidence is against a finding that the severity of the Veteran's symptoms are contemplated by a 100 percent rating. 38 C.F.R. §§ 4.7, 4.21. In sum, the Veteran's PTSD manifests impairment that most nearly approximates a 50 percent evaluation for the period prior to September 26, 2007 and a 70 percent evaluation thereafter. The Board has considered whether there is any other schedular basis for granting a higher rating other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for additional increased ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Low Back Disability Service connection for mechanical low back pain was awarded in the November 2006 rating decision on appeal. An initial 10 percent evaluation was assigned from November 28, 2003. The Veteran contends that an increased rating is warranted for her low back disability as it manifests pain that interferes with her job as it limits her ability to sit for prolonged periods. The Veteran's current 10 percent rating was assigned under Diagnostic Code 5237 for lumbosacral strain and the general rating formula for diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. The Board notes that X-rays performed throughout the claims period have been consistently negative for disc involvement and the Veteran has never been diagnosed with intervertebral disc syndrome. Therefore, the criteria pertaining to intervertebral disc syndrome are not for application in this case. 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation is assigned 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 evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. For the period prior to September 26, 2007, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran's mechanical low back pain. With respect to limitation of motion of the thoracolumbar spine, the Veteran's range of motion was most limited at the September 2004 VA examination. At that time, forward flexion was limited to 90 degrees and the combined range of motion of the low back was limited to 240 degrees. The Veteran had no pain during motion testing and there was no additional loss of motion during repetitive testing. The Veteran also did not manifest any gait abnormality or muscle tenderness or spasms. These findings are clearly contemplated by the currently assigned 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Treatment records from the El Paso VAMC during the period prior to September 26, 2007 also do not support the assignment of an increased initial rating. The Veteran manifested some limited motion of the lumbar spine during physical therapy sessions at the VAMC, but her therapist characterized her back as maintaining good functional range of motion in April 2005. The Veteran was also involved in a motor vehicle accident in August 2005 which caused temporarily worsening low back pain and stiffness, but no additional loss of motion was documented. In short, VA treatment records do not indicate that the Veteran's disability most nearly approximated forward flexion limited to between 30 and 60 degrees, or a combined range of motion not greater than 120 degrees at any time during this period. There are also no findings of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Thus, an initial rating in excess of 10 percent is not warranted for the service-connected mechanical low back pain during the period prior to September 26, 2007. For the period beginning September 26, 2007, the Board finds that an increased 20 percent disability evaluation is warranted for orthopedic impairment associated with the service-connected low back disability. Range of motion of the thoracolumbar spine was most limited at the September 2007 VA examination when forward flexion was to 50 degrees with a combined range of motion to 155 degrees with pain at the endpoint. Flexion to 50 degrees is contemplated by a 20 percent disability evaluation under the general rating criteria as it is greater than 30 degrees but not greater than 60 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A rating in excess of 20 percent is not warranted as there is no evidence of ankylosis or forward flexion that most nearly approximates 30 degrees at any time during the period beginning September 26, 2006. As noted above, the Veteran's most limited spinal motion is properly contemplated by a 20 percent evaluation. The Board has considered whether an increased rating is appropriate based on functional factors, but notes that the range of motion values reported by the VA examiners who physically examined the Veteran in September 2007, July 2010, and July 2012 considered the Veteran's complaints of pain during testing. Furthermore, there was never any additional loss of motion with repetitive testing or weakness, fatigue, or incoordination. The Veteran has also consistently denied experiencing flare-ups of low back pain or functional impairment greater than limitations to her ability to exercise or sit and stand for prolonged periods. Thus, even with consideration of functional factors it is clear that the service-connected low back disability does not most nearly approximate forward flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine during the period beginning September 26, 2007. In sum, the Veteran's orthopedic impairment of the lumbar spine is appropriately rated as 10 percent disabling during the period prior to September 26, 2007 and 20 percent disabling thereafter. The Board must now consider whether separate ratings are warranted for any neurological impairment associated with the service-connected back disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note 1. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. The Board finds that a separate rating of 20 percent is warranted for moderate incomplete paralysis of the left sciatic nerve under Diagnostic Code 8520 for the period beginning July 26, 2012. Under this diagnostic code, incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neurological examination of the bilateral lower extremities was consistently normal until the July 2012 VA examination, when moderate intermittent pain, paresthesias, and numbness were observed by the examiner. These symptoms were identified by the examiner as signs and symptoms of radiculopathy. Although the examiner failed to specify the nerve affected and later indicated that the Veteran was not affected by radiculopathy, the Board will resolve all doubt in favor of the Veteran and conclude that her service-connected disability manifests neurological impairment of the left lower extremity that most nearly approximates moderate. There is no indication that the Veteran's left leg neurological deficit more nearly approximates severe, and the July 2012 VA examiner specifically found that the Veteran's symptoms were moderate in severity. Hence, a rating in excess of 20 percent is not appropriate under Diagnostic Code 8520. A separate rating is also not warranted for the right lower extremity as the July 2012 VA examiner did not find any neurological impairment of the right leg, to include complaints of pain, loss of sensation, or paresthesias. There is also no earlier evidence of neurological impairment. VA treatment records are entirely negative for evidence of radiculopathy; in fact, orthopedists at the El Paso VAMC who examined the Veteran in November 2004 and March 2008 specifically found that she had no neurological deficit associated with her low back disability. Neurological examination of both lower extremities was also normal upon VA examinations performed in September 2004, September 2007, and July 2010. The Board notes that the Veteran has not reported experiencing any neurological symptoms associated with her service-connected disability, to include radiating pain, numbness, or weakness of the extremities. Therefore, a separate rating for neurological impairment of the right lower extremity is not warranted at any time during the claims period, nor is a separate rating for the left lower extremity appropriate for the period prior to July 26, 2012. The Veteran's service-connected low back disability therefore warrants a 10 percent initial evaluation for the period prior to September 26, 2007 and a 20 percent rating thereafter. Regarding neurological impairment, a separate 20 percent rating is appropriate for incomplete paralysis of the left lower extremity for the period beginning July 26, 2012. The Board has considered whether there is any other schedular basis for granting a higher rating other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against any other increased ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Other Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's PTSD and low back conditions are manifested by symptoms such as occupational and social impairment and pain with limited motion. These manifestations are specifically contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular ratings is not warranted. Entitlement to a TDIU is also an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable. She is not in receipt of Social Security disability benefits, and has continued to work throughout the claims period as a medical assistant at the El Paso VAMC. There is no medical evidence that the Veteran's disabilities have rendered her unable to perform her duties. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected PTSD or low back disability. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran has initiated an appeal regarding the initial disability ratings assigned following awards of service connection. The claims for service connection for the disabilities on appeal are now substantiated and the filing of a notice of disagreement (NOD) as to the initial rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the initial disability rating assignments triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The August 2008 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disabilities at issue. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a 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 a 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). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided proper VA examinations to determine the severity of her service-connected PTSD and mechanical low back pain, most recently in July 2012. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an initial rating of 50 percent, but not higher, for PTSD for the period prior to September 26, 2007 is granted. Entitlement to a rating of 70 percent, but not higher, for PTSD for the period beginning September 26, 2007 is granted. Entitlement to an initial rating in excess of 10 percent for mechanical low back pain for the period prior to September 26, 2007 is denied. Entitlement to a rating of 20 percent, but not higher, for mechanical low back pain for the period prior to September 26, 2006 is granted. Entitlement to a separate rating of 20 percent, but not higher, for neurological impairment of the left lower extremity for the period beginning July 26, 2012 is granted. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the claim for entitlement to service connection for sleep apnea. Specifically, a VA examination and medical opinion are required by the duty to assist. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Although the Veteran's complete service treatment records are not available for procurement, a copy of an October 2003 post-deployment examination is included in the claims file. During the examination, the Veteran complained of feeling tired after sleeping. She has also consistently complained of having trouble sleeping since beginning treatment for PTSD at the El Paso VAMC in July 2004. A private sleep study performed in January 2008 also documented a diagnosis of obstructive sleep apnea and the Veteran was provided a CPAP machine at the VAMC in February 2008. She also provided lay statements in support of her claim in February and November 2010, dating the onset of her sleep troubles to her active duty service in Southwest Asia. The Veteran's statements are competent evidence of events that occurred during service and when combined with the October 2003 report of sleeping trouble, indicate the claimed sleep apnea may be associated with active service. A VA examination is therefore necessary to determine the nature and etiology of the Veteran's sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the nature and etiology of the claimed sleep apnea. The Veteran's claims file must be made available to the examiner for review in connection with the examination. Based on an examination and review of the complete claims file, to include the October 2003 post-deployment examination and the Veteran's statements regarding the onset of her sleep problems during service, the examiner should offer an opinion addressing whether the Veteran's sleep apnea is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), etiologically related to any incident of active duty service or otherwise related to active service. A full rationale for all opinions should also be provided. 2. Readjudicate the claim for service connection for sleep apnea. If the benefit sought on appeal is not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs