Citation Nr: 1323546	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  12-20 796A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for temporomandibular joint (TMJ) syndrome.

2.  Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

3.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease with patellofemoral syndrome, left knee.

4.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease with patellofemoral syndrome, right knee.

5.  Entitlement to a compensable initial disability rating for residuals, fracture, first right metacarpal.

6.  Entitlement to a compensable initial disability rating for sciatica, left lower extremity.

7.  Entitlement to a compensable initial disability rating for sciatica, right lower extremity.

8.  Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The Veteran had active duty service from December 1982 to December 1985 and from February 2003 to October 2003, with additional periods of inactive service.

With regard to the issue of entitlement to service connection for TMJ, this matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida.  With regard to each of the other issues on appeal, this case comes before the Board on appeal from a September 2011 RO rating decision.  

The issues of entitlement to increased ratings for degenerative joint disease with patellofemoral syndrome of the left and right knees, for residuals of a fracture of the first right metacarpal, and for sciatica of the left and right lower extremities 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.  TMJ dysfunction was not manifested during active service or for several years thereafter, nor is any TMJ dysfunction otherwise related to such service.

2.  The Veteran's PTSD has been productive of a disability picture generally characterized by occupational and social impairment, with reduced reliability and productivity due to such symptoms as: depressed mood; sleep impairment; circumstantial speech; some impairment of memory; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective relationships.  The Veteran's PTSD has not been productive of a disability picture more nearly approximating 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; and inability to establish and maintain effective relationships.

3.  The Veteran's service-connected degenerative joint disease of the lumbosacral spine has not been manifested by limitation of forward flexion of the thoracolumbar spine to 60 degrees or less; nor by limitation of the combined range of motion of the thoracolumbar spine to 120 degrees or less; nor by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; nor by ankylosis of the thoracolumbar spine.  The Veteran's service-connected back disability has not been productive of incapacitating episodes having a total duration of at least 2 weeks in a 12-month period associated with any intervertebral disc disease.


CONCLUSIONS OF LAW

1.  TMJ dysfunction was not incurred in or aggravated by the Veteran's active service, nor may in-service incurrence be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  The criteria for an initial rating in excess of 50 percent have not been met, nor have the criteria for a rating in excess of 50 percent been met at any point during the appeal period.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).

3.  The criteria for entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected degenerative joint disease of the lumbosacral spine have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Duty to Notify

Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).

The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the appellant pre-adjudication notice pertinent to establishing service connection for TMJ by a letter dated in November 2009.  The RO provided the appellant with pre-adjudication notice pertinent to establishing service connection for PTSD and pertinent to establishing an increased rating for back disability by a letter dated in April 2011.

Since the issue of entitlement to a higher initial rating for PTSD in this case is downstream issue from the Veteran's claim of entitlement to service connection for PTSD, the timely notice regarding service connection for PTSD in the April 2011 VCAA letter is adequate and another VCAA notice letter is not required for the PTSD issue.  VAOPGCPREC 8-2003 (Dec. 22, 2003).  It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the veteran was furnished proper VCAA notice with regard to the claim of service connection itself.  See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006).

The notifications in this case complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence.  The November 2009 and April 2011 letters provided notice concerning the assignment of disability ratings and effective dates in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The VCAA notices were timely, as the letters both preceded the corresponding RO rating decisions on appeal (the November 2009 letter regarding TMJ preceded the June 2010 RO rating decision denying service connection for TMJ, and the April 2011 letter preceded the September 2011 RO rating decision assigning the initial disability rating for PTSD and the disability rating for back disability).  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

The claims-file contains service treatment records as well as private and VA post-service treatment records.  VA has also afforded the Veteran VA examinations with pertinent reports of record dated in February 2010 (TMJ), March 2010 (TMJ addendum), June 2011 (PTSD), and May 2011 (back).  The Board finds that the VA examination reports have probatively addressed the critical medical questions at issue in the claims decided by the Board at this time; the VA examination reports and addenda present sufficient discussion of the pertinent history, current findings, and expert determinations informed by review of the claims file such that they present adequate and probative evidence in this case.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.

The Board notes that the Veteran's complete pertinent service treatment records from active duty service are included in the claims-file, including documentation of the specific event identified by the Veteran as the sole basis of the service connection claim on appeal.  The Board observes that March 2003 correspondence from the Florida Army National Guard confirmed that no additional records concerning the Veteran were available from its resources.  An August 2004 RO Formal Finding of Unavailability documents the RO's attempts to obtain any additional treatment records from the service department and the Veteran's National Guard/Reserve unit leading to the RO's formal determination that no further service treatment records were available.  In any event, the Board again emphasizes that the service treatment records from the Veteran's active duty service, including from the time of the pertinent period central to the Veteran's specific service connection contentions, his final period of active duty service, are of record.

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time.

Service Connection

The Veteran claims entitlement to service connection for TMJ syndrome.  Essentially, the Veteran contends that he currently suffers from TMJ as a result of an injury suffered for active duty military service.  Specifically, the Veteran contends that he was injured by a mortar explosion in July 2003 which caused his jaw problems.

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

The Board notes that certain dental conditions, including periodontal disease, are not considered disabling by VA and may be service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161, but not for purposes of compensation.  See 38 C.F.R. § 3.381(a).

Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in § 17.161 of this chapter, but not for purposes of compensation.  See 38 C.F.R. § 3.381(a).  Missing teeth may be compensable for rating purposes under Diagnostic Code 9913 ("loss of teeth, due to loss of substance of body of maxilla or mandible without loss of continuity").  However, the note immediately following this code states, "these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling."  38 C.F.R. § 4.150, Diagnostic Code 9913.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

A veteran is competent to describe symptoms that he experienced in service or at any time after service when he perceived, or experienced, these symptoms directly through the senses.  38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").

In determining credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).

The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Board may not make its own independent medical determinations; the Board must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source.

In this case, the Veteran's service treatment records are silent for any diagnoses or symptom complaints suggestive of jaw disability prior to July 2003.  The Veteran does not contend that any TMJ or jaw disability existed prior to July 2003.  The Veteran's October 2009 claim for service connection for TMJ syndrome clearly contends that his TMJ syndrome "could be occurring because of the previous blast injury sustained to R face including TMJ."  A January 2010 report filed by the Veteran further specified details of a July 2003 mortar blast injury in Iraq to which he attributes his jaw symptoms.  ("[T]he impact of the blast has caused ... pain in on the right side of my jaw.")  The Veteran's July 2010 notice of disagreement on this issue again contends that the TMJ syndrome is linked to the blast injury shown in his service treatment records ("the SMR evidence shows my injury in service") and the August 2012 substantive appeal on this issue reiterates that he contends his problems with his "TMJ was caused by fractured jaw on active duty during mortar attack."  The Veteran also contends that he was treated for TMJ problems at that time.

The incident the Veteran has clearly and repeatedly referred to as the onset of his TMJ disability on appeal is a July 2003 injury from a mortar attack that is documented in the Veteran's service treatment records.  (One of these reports indicates treatment associated with a mortar blast in June 2003, but in the context of the rest of the evidence this date appears to be an error; the mortar blast injury is established by the evidence to have taken place in July 2003, but the Board has considered the pertinent June 2003 treatment report as part of that incident.)  The pertinent service treatment records show that in July 2003 the Veteran "was on guard tower duty which time tower 12 received morta[r] attacks that landed a morta[r] round near the tower (100 meters).  The soldier advised that the impact of the blast has caused a constant ringing sound in his right ear."  Associated medical reports show that the Veteran complained of ringing and pain in his right ear and "feeling of fluid" in the ear in the days following the trauma.  Significantly, the Veteran complained of "constant discomfort" and "pain" that "starts in ear, goes down the jaw."  The medical assessment at that time was "barotrauma."  The Veteran's service treatment records from this time do not indicate that a direct injury to the jaw or a fracture of the jaw was suspected by either trained medical professionals or the Veteran.

The Board finds that the evidence corroborates the Veteran's contentions to the extent of his having been exposed to a proximate mortar blast in July 2003.  However, the contemporaneous medical evidence from that incident strongly suggests that the Veteran did not suffer a fractured jaw or direct injury to the jaw at that time.  The only reference to the jaw in the medical records associated with the injury indicates that the Veteran's right ear pain radiated into the jaw.  The Board finds it reasonable to presume that the documented medical attention the Veteran received at that time would have noted signs or diagnosis of a direct jaw injury such as a fractured jaw at that time.

In any event, the essential question in this case is whether any current chronic jaw or TMJ disability has an etiology that may be linked to the in-service injury consistent with medical principles.  This is a question that must be addressed by opinions from competent medical experts.  In this case, there are multiple medical opinions of record addressing this question.

An October 2009 statement from a private medical provider describes that the Veteran was seen for a consultation for right TMJ pain in August 2009.  The reported examination findings included "indication of pericoronitis of tooth #31 with class 2 mobility."  The statement describes the Veteran's history as involving "blast injury during his duty in 2003 and lost Right ear hearing.  Since that incident occurred [the Veteran] stated to have pain on his R. preauricular area, occasional locked jaw, and noise in his R. TMJ."  The medical statement goes on to summarize that the Veteran had surgical removal of tooth 31 in September 2009 but the Veteran "still complained of pain on his R. TMJ despite the medication...."  Further examination revealed findings "which suggested chronic active inflammation in his R. TMJ joint space."  The author stated: "This could be occurring because of the pervious blast injury [the Veteran] sustained to his R. FACE including TMJ."  The statement includes a medical diagnosis including right TMJ degenerative osteoarthritis, myofascial pain disorder, and right TMJ internal joint derangement type 1.

A March 2011 statement from a private medical provider, indicated to be a chiropractor, addresses the Veteran's right TMJ syndrome.  This statement presents an account of the Veteran's pertinent history as involving "a fracture of the right TMJ in a mortar attack" in July 2003.  The statement does not clearly identify the source of the information leading to a conclusion that the right TMJ was fractured.  The statement describes the Veteran's current symptoms of TMJ pain, headaches, and misalignment of bite.  The statement presents the medical opinion that "[i]t is more likely than not that the aforementioned is directly and causally related to injury sustained in a mortar attack as discussed above.  It is accordingly more likely than not that same is directly and causally related to [the Veteran's] military service."

The Veteran underwent a VA dental examination in connection with this issue in February 2010.  At the time of the examination the claims-file was not available to the VA examiner; the direct examination was completed and a medical opinion was deferred until the examiner could review the claims-file.  The examination findings included "some deviation of lower jaw to right side on opening," but there was "[n]o evidence of broken jaw."

After receiving and reviewing the Veteran's claims-file in March 2010, the examiner authored an addendum to the original basic examination report.  The examiner discussed the contemporaneous documentation of the July 2003 blast injury, noting that "no physical injuries to his right face were noted."  The examiner noted that the Veteran complained of ringing and pain in his right ear and a feeling of fluid in his right ear, and that the left and right tympanic membranes were shown to be clear at that time with no effusion or perforation or hemotympania noted at that time.  After review of the claims-file, the examiner noted that the Veteran "had no medical documentation of problems with his right TMJ until, nor has he complained of problems with his right TMJ until 05/21/2009 when he complained of a problem chewing on his right side, with his right temple area and jaw getting worse."  The examiner noted that the Veteran had tooth 31 removed in September 2009 due to "pericornitis."

The VA dental examiner explains that the dental X-rays taken in February 2010 "demonstrate the patient currently has generalized advanced periodontitis.  This is dental disease that is a loss of supporting bone surrounding the teeth usually associated with poor oral hygiene and the body's inflammatory response to a buildup of bacterial plaque and dental calculus."  The examiner explains that the Veteran "experiences loosening and migration of teeth, and dental abscesses commonly develop.  The patient can experience changes in his chewing patterns and result in problems with the temporomandibular joints (TMJ)."  The examiner further explains that "[t]here is no current literature to associate 'acoustic trauma' with either periodontal disease or TMJ problems," and that "[t]here is no radiographic evidence of breakage or damage to the R TMJ from the mortar blast...."  On the basis of the examiner's expertise, review of the pertinent contents of the claims-file, direct examination of the Veteran, and review of pertinent medical literature as presented in the rationale discussed above, the examiner concludes: "the [Veteran]'s complaint of TMJ problems is not caused by or a result of the previous blast injury sustained to the right face in 2003."

Another VA examination report from March 2010 discusses some of the Veteran's complaints associated with the TMJ and the blast injury, but presents no new information and presents no etiology opinion concerning the Veteran's current TMJ complaints.  This examination report focuses upon other matters.

The two private medical statements discussed above suggest some support for the Veteran's contention that he has a TMJ disorder related to the in-service blast injury, while the VA examination report presents a medical opinion indicating that such a link between the current disability and the blast injury is not medically supportable.  To the extent that the two private medical opinions may support the Veteran's claim, the Board finds that they are not significantly probative evidence.  Neither private opinion appears to be informed by review of the pertinent contents of the claims-file including the details of the contemporaneous documentation of the blast injury and the Veteran's symptom complaints thereafter.  Neither private opinion addresses the chronology following service in which no complaints or medical treatment for TMJ symptoms are shown until more than 5 years after the blast injury.  In Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008), the Court held that while claims file review is not required for a medical opinion to have probative value, it must be clear from the record that the opinion provider "was informed of the relevant facts" in rendering a medical opinion.

Significantly, the March 2011 private opinion cites a factual predicate for its conclusion involving "a fracture of the right TMJ in a mortar attack," but the author does not identify the basis for finding there had been a fracture of the TMJ nor is any alleged fracture otherwise shown in the Board's review of the evidence.  Nothing in the contemporaneous service treatment records indicates that the Veteran suffered a fracture of the TMJ joint.  The account of the pertinent history presented in the October 2009 private medical report, presumably informed by the Veteran's own statements to the dentist regarding his history, does not suggest that any fracture was involved.  No medical evidence of record presents objective indications of a history of fracture, and the February 2010 VA dental examiner remarked that there is "no evidence of broken jaw" and, in the March 2010 addendum, commented that the examination revealed "no radiographic evidence of breakage or damage to the R TMJ from the mortar blast...."  The Board finds that the most probative evidence indicates that the Veteran did not suffer a fracture of the right TMJ joint and, thus, the March 2011 private medical opinion cites an incorrect factual predicate in the presentation of its opinion.

It is also significant that the October 2009 private opinion does not actually express a probability that the current TMJ disorder is related to the blast injury or otherwise to military service; the October 2009 private opinion merely states that it "could be occurring because of the previous blast injury."  This opinion does not probatively support the Veteran's claim.  The discussion can be accorded no substantial probative value because the rationale is speculative in nature, expressly identifying a mere possibility rather than any probability.  See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative).  See also Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also 38 C.F.R. § 3.102 (describing the concept of reasonable doubt in adjudicating service connection claims as not being one arising from pure speculation or remote possibility).

The Board finds that the October 2009 and March 2011 private medical opinions are not significantly probative evidence in support of the Veteran's claim.  However, the February 2010 VA dental examination (as amended in March 2010) is highly probative evidence weighing against the Veteran's claim.  The VA dental examination report presents the opinion weighing against the Veteran's claim with a persuasive rationale citing direct examination, review of the claims-file, discussion of the correct details of the in-service injury and post-service medical history as shown in contemporaneous documentation, expert consideration of medical literature and principles, and expert medical interpretation of pertinent diagnostic imaging.  The Board finds that the February 2010 VA dental examination report (as amended in March 2010) is the most probative evidence on the essential medical etiology question at issue in this matter.  The VA examiner's opinion is not contradicted by any significantly probative evidence.

Thus, the Board finds that the most probative evidence of record indicates that the Veteran's current TMJ disorder is not etiologically linked to his military service, including specifically the in-service blast injury of July 2003.

The Board has considered that the February 2010/ March 2010 VA dental examination report suggests that the Veteran's TMJ disorder may be a consequence of his periodontal disease.  The VA dental examiner expressly concluded that the medical literature presents no basis for linking onset of periodontal disease to acoustic trauma.  There is otherwise no basis presented in the contentions or the evidence in this case for granting service connection for the current TMJ disorder on the basis of underlying periodontal disease.

The Board also notes that the earliest documentation of record following service showing any TMJ complaints is a May 2009 VA treatment report more than five years following service, and the Veteran's claims for service connected disability benefits prior to May 2009 made no reference to any TMJ disability (including in a claim form completed in December 2002 and formally filed in November 2003 after the Veteran's separation from service).  This significant gap is one factor that weighs heavily against the Veteran's claim.  See Maxson v. West, 12 Vet. App. 453, 459 (1999).

Service Connection Conclusion

The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for TMJ dysfunction.

In reaching this decision, the Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to the issue decided at this time.  The Board acknowledges that the claims-file contains a quantity of other documents making references to the Veteran's TMJ symptoms, but none of the information in these records substantially supports the Veteran's claim or otherwise contradicts the evidence deemed to be most probative in the discussion above.

Here, the evidence does not support finding that the Veteran's current TMJ disability is related to his military service.  The Veteran has now been afforded a VA examination with adequate medical report and opinion in connection with this claim (the February 2010 VA examination report, as amended in March 2010); the examiner has provided clear findings and opinions with persuasive discussion of the pertinent evidence and rationale supporting the conclusion weighing against the claim.  The VA examiner's pertinent findings and opinion are uncontradicted by the rest of the competent probative evidence of record; the only contrary medical opinions of record are of diminished probative value for the reasons explained above.

The Board acknowledges that service connection may be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  To the extent that the Veteran's contentions and testimony in this case suggest the occurrence of a continuity of symptomatology with respect to TMJ syndrome, TMJ dysfunction is not a "chronic disease" listed under 38 C.F.R. § 3.309(a).  Therefore, 38 C.F.R. § 3.303(b) does not apply.  See Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013).

The Board acknowledges the Veteran's belief that his TMJ disability is related to his military service.  However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of TMJ syndrome.  38 C.F.R. § 3.159(a)(1).  Consequently, the Veteran's own assertions as to diagnosis and etiology of a disability have no probative value.  Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology).  However, matters such as a diagnosis of TMJ syndrome or a determination of a causal relationship between military service and TMJ syndrome not shown to have manifested until many years after service require specialized training and involve complex, internal processes; such determinations may therefore not be established by lay opinions on etiology.

As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for TMJ syndrome, the benefit-of-the-doubt rule does not apply and this claim is denied.  See 38 U.S.C.A § 5107.

Increased Ratings

The Veteran claims entitlement to assignment of higher disability ratings for various service-connected disabilities.  He essentially contends that each disability has been more severely disabling than the assigned ratings reflect.

The Board notes that it has reviewed all of the evidence in the Veteran's claims file (including the Virtual VA electronic claims file), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  The Board notes that review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal aside from what is discussed in this decision.

Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where the appeal arises from the original assignment of a disability evaluation following an award of service connection (as is the case for all rating issues on appeal except for the lumbosacral spine disability issue), the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as 'staged' ratings.  Id. at 126.

Where an increase in the level of a service-connected disability is at issue (as in the spine issue on appeal), the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination.  However, merely having pain throughout the entire range of motion of a major joint, or groups of minor joints, does not warrant a maximum rating.  Rather, any such painful motion must be shown to produce actual functional limitation.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  The Court in Mitchell clarified that the Court's prior decisions in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); Hicks v. Brown, 8 Vet. App. 417 (1995); and Powell v. West, 13 Vet. App. 31 (1999) do not: (1) apply a broad principle-that painful motion is limited motion-to the DCs measuring limitation of motion, or (2) conclude that the appropriate remedy for painful motion is a maximum disability rating for limitation of motion.  Mitchell, supra.  Taken in context, these cases establish simply that a veteran is entitled to a minimum 10 percent rating under the second part of Diagnostic Code 5003 when there is painful motion and X-ray evidence of degenerative arthritis, but where range of motion is not actually limited to a compensable degree.  Id.  (In Mitchell, supra. at 42, the veteran had already had a minimum 10 percent rating but it was clarified that "the presence of pain was only one of several factors that led the Court to reverse the Board's decision" in Powell and that the veteran in Powell had, aside from pain, documented and severe limitation of motion of his spine.)  In sum, Mitchell held that pain on motion is not, itself, "functional loss," but "may result in functional loss ... only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance'."  Id. at 38 (quoting 38 C.F.R. § 4.40).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).


PTSD

Under the criteria for PTSD (set forth at 38 C.F.R. § 4.130, Diagnostic Code 9411), a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is assigned for occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned when there is 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.

A 100 percent schedular rating is warranted when there is 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 relative, own occupation or own name.

The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness.  See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995).  According to the DSM-IV, a GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning.  A GAF score between 51 and 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).  A GAF between 61 and 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  However, the Court further appears to have acknowledged that without those examples, differentiating between evaluations would be extremely ambiguous.  Id. at 442.

A March 2011 private psychological evaluation is of record and contains pertinent professional characterizations of the Veteran's PTSD symptoms around that time.  The report shows that the Veteran's wife described that the Veteran "tended to 'jump at everything, run to the window.  Guarded at all times.'"  The Veteran's wife described that the Veteran "tended to engage in angry verbal outbursts, often entirely without provocation," and he "tended to avoid phone calls from his friends and family members, as well."  The Veteran described experiencing intrusive thoughts related to service, flashbacks, being awakened by perceptions of loud explosions, sleeping with loaded guns, experiencing night sweats, and experiencing cognitive and physiological responses to trauma cue in reaction to television programs and newspaper articles.  The Veteran described a history of intensive effort geared toward the avoidance of thoughts, feelings, conversations, and activities associated with his traumatic experiences; he described a pattern of markedly diminished interest and participation in significant activities relative to his behavior prior to his military service.  The Veteran explained that he rarely went out after his return from Iraq, and described feelings of detachment and estrangement from others.  The report shows that the Veteran and his wife described an "excellent" marital relationship without excessive arguing or physical altercations, and the report shows that the Veteran described good relationships with his children and siblings.

The March 2011 private psychological report shows that the Veteran "demonstrated marked problems with insomnia, as evidenced by his difficulties with sleep onset and intermittent waking...."  Also, "[c]oncentration problems were markedly apparent during the interview."  The report notes "[h]ypervigilance ... was described," including perimeter checks and taking different routes to his workplace since military service.  The report describes exaggerated startle responses, including with episodes in which he "nearly placed his hands around" another person's throat.  The Veteran's wife "noted that his mood had declined markedly ....  [S]he perceived he husband to have variable mood" as well as anhedonia, insomnia, concentration difficulties; significant experience of fatigue and loss of energy were reported."  The psychological examiner noted that "psychomotor agitation was highly evident during the interview."

The mental status examination findings in the March 2011 private psychological report indicated impulse control within normal limits.  Suicidality, homicidality, and perceptual abnormalities were denied.  The Veteran described his mood as "fair."  The Veteran's affect was characterized as "stable, though intense, during the evaluation.  It was appropriate for the discussion at all times, however."  The report shows that the Veteran was oriented to person, place and time.  The Veteran's "memory for recent past events ... appeared to fall within normal limits" and "[r]emote memory ... appeared to be intact."  (Abnormalities in other aspects of memory function are discussed below.)  The report characterizes the Veteran's intelligence and fund of information to fall within the average range, and "judgment appeared to fall within normal limits...."

The findings included a note that "[f]orm of thought was remarkable for circumstantiality; though thought content fell within normal limits."  The Veteran's "attention capacities, as evidenced by his circumstantial speech during the interview, appeared to fall below normal limits."  The Veteran's "concentration abilities ... fell below normal limits."  Also, his "immediate memory abilities ...as a measure of auditory working memory, appeared to fall below normal limits."  Also, "memory for recent events ... appeared to fall below normal limits...."  The Veteran's "insight ... appeared to fall below normal limits."

The March 2011 private psychological report assigned a current GAF score of "*52," with the report explaining that Veteran "described moderate symptoms" and that "a pattern of social difficulties ... was reported."  The examiner confirmed the diagnosis of PTSD together with a depressive disorder; the report expresses that the Veteran's symptoms are related to service and not distinguished from the now-service-connected psychiatric pathology.  In a summary, the examiner emphasized the presence of "[s]ocial functional impairments," and "[s]ignificant cognitive difficulties, in the form of problems with attention, concentration, immediate memory, and recent memory."

The Veteran underwent a VA psychological evaluation in June 2011, and the report presents pertinent expert characterizations of the Veteran's symptomatology.  The report shows that the Veteran described a "[g]reat relationship" with his wife, with his children, and with his siblings.  He described having "three friends" that he sees two or three times per month.  The Veteran denied any history of violence or assaultiveness.  The examiner noted a "lack of eye contact" from the Veteran, but he was "unremarkable" with regard to psychomotor activity.  Speech was normal aside from answering "yes sir" and stuttering at times.  The Veteran's affect was "blunted" and his mood was "depressed."  The Veteran was oriented to person, time, and place.  Thought process and thought content were "unremarkable."  The report indicates that no evidence of delusions was found.  With regard to judgment, the examiner noted that the Veteran "understands outcome of behavior."  Intelligence was "average."  With regard to insight, the examiner noted that the Veteran "understands that [he] has a problem."  The report indicates that no evidence of hallucinations was found.  The report shows that there was "no" inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal thoughts, nor suicidal thoughts.  Impulse control was "fair," and episodes of violence were denied.  The report notes that the Veteran was able to maintain minimum personal hygiene and had "no" problem with activities of daily living.  The examiner found that remote memory, recent memory, and immediate memory were all "normal" upon testing.

June 2011 VA psychological examination findings did note an attention disturbance in that the Veteran was easily distracted and unable to do serial sevens.  Sleep impairment was also noted.

With regard to reported PTSD symptoms, the June 2011 VA examination report notes that the Veteran described recurrent and intrusive distressing recollection of the traumatic event, as well as recurrent and distressing dreams regarding the trauma (although he denied "flashbacks"), intense psychological distress, and physiological reactivity at exposure to internal or external cues concerning the trauma.  The Veteran described efforts to avoid reminders of the trauma, markedly diminished interest or participation in significant activities, and feelings of detachment or estrangement from others.  The Veteran described a restricted range of affect, characterized as "unable to have loving feelings," and the examiner later noted that the "Veteran appeared depressed."  The Veteran also described difficulty falling or staying asleep, as well as irritability, outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response.  The disturbance was noted to be chronic, without remissions, and to cause "clinically significant distress or impairment in social, occupational or other important areas of functioning."

The June 2011 VA examination report confirms the diagnoses of PTSD and assigned a current GAF score of 50.  In a summary, the examiner noted that the PTSD symptoms did not cause "total" occupational and social impairment, but that the symptoms cause deficiencies in judgment, thinking, family relations, work, and mood.  The summary provides examples, citing the Veteran's report that he needs a "stiff drink to go to sleep some nights," that he "is afraid to sleep due to his nightmares," that he reports concentration difficulties and was unable to complete serial 7 exercise, that yelling at his wife has caused a strain in that relationship, and that the Veteran reported having a "temper at the job with co-workers" (although he had not been disciplined), and that he experienced daily irritability and sad mood.

A May 2012 private psychological evaluation is of record and contains pertinent professional characterizations of the Veteran's PTSD symptoms around that time.  This report, from the same provider as authored the March 2011 private psychological report, updates the prior March 2011 psychological evaluation.  The report shows that the Veteran "reported that he and his wife were doing 'fine,'" that he "tended to 'peep out the window all the time,'" and to otherwise engage in hypervigilant behaviors, stating that he was "constantly on guard."  The Veteran reported that he had maintained employment, but had been "involved in numerous arguments with his supervisor...."  The Veteran's wife reported that the Veteran "had been involved in angry outbursts" and "tended to yell in response to anger or distress" including "in conjunction with road rage."

The mental status examination findings in the May 2012 private psychological report show that impulse control was within normal limits, thought content was consistent, and the Veteran denied suicidality and perceptual abnormalities.  The Veteran reported "good" mood.  The examiner found that the Veteran's affect was "stable, though intense" and was "appropriate for the discussion at all times...."  The Veteran was noted to be oriented to person, place, and time.  Memory for recent past events "appeared to fall within normal limits," and remote memory "appeared to be intact."  Intelligence and fund of information "appeared to fall within the average range."

However, form of thought was remarkable for circumstantiality, thought content involved "intermittent impulsive homicidal ideation," and the examiner noted that the Veteran acknowledged experiencing extreme anger in response to a recent argument and had "taken it a little too far" before ultimately leaving the scene.  The Veteran's wife described that despite the Veteran's report of "good" mood, she observed that he tended to remain "mad" for a period after "you piss him off."  The examiner noted that the Veteran's "attention capacities, as evidenced by his circumstantial speech during the interview, appeared to fall below normal limits."  Concentration abilities "also fell below normal limits."  Immediate memory abilities "appeared to fall below normal limits."  Memory for recent events "appeared to fall below normal limits."  Judgment and insight appeared to fall below normal limits.

The May 2012 private psychological report confirms a diagnosis of PTSD with depressive disorder, and the author expressed no change in her prior determination (in her March 2011 report) that the Veteran's pertinent symptoms are not distinguished from the service-connected psychiatric pathology.  The report assigns a current GAF of "*47," and cites that the Veteran "described moderate symptoms" with "a pattern of social difficulties," "intermittent impulsive homicidal ideation," and "difficulties with gesturing and yelling in the context of road rage."

The Board has reviewed the additional evidence of record, including the Veteran's VA treatment records.  The evidence of record indicates that the Veteran has declined mental health treatment with VA.  There are no detailed evaluations pertinent to the Veteran's PTSD symptoms aside from what is discussed above.  Although some of the Veteran's VA treatment records contain brief reference to psychological symptoms or PTSD screening inquiries, the evidence of record presents no pertinent information that contradicts or expands upon the findings of the above-discussed detailed reports.

Based on the evidence of record, the Board concludes that a higher rating is not warranted for PTSD at any time over the course of this appeal, as the Veteran's symptoms of PTSD do not result in 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 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.  See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).

The Board observes that the Veteran's private psychologist has diagnosed Axis I disorders of PTSD and "Depressive Disorder Not Otherwise Specified."  However, the private reports and the evidence broadly, including the June 2011 VA examination report, reflect that there is no significant differentiation of any pertinent symptoms from the Veteran's service-connected pathology.  Accordingly, the Board has considered the combined effects of both diagnosed disabilities in rating the Veteran's PTSD.  Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition versus a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor, thus attributing such signs and symptoms to the service-connected disability).

In this case, the preponderance of the evidence is against a finding of occupational and social impairment, with deficiencies in most areas due to symptoms of the nature and severity contemplated by a 70 percent disability rating for PTSD.  The overall medical evidence of record is not indicative of an evident impact on social and occupational functioning due to such symptoms.  The Board notes that the competent medical evidence, informed extensively by acceptance of the Veteran's own account of his symptoms experiences, reflects that the Veteran does not have symptoms of 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships.

The Board acknowledges that the Veteran has withdrawn from many social relationships, but the information concerning his relationships with his wife, his children, his siblings, and at least a small number of friends reflects that the Veteran does not have an "inability" to establish and maintain effective relationships.  The Board finds that the Veteran's difficulty with relationships associated with PTSD more nearly approximates the severity of disability contemplated by a 50 percent rating.  (The 50 percent rating criteria list as an example: "difficulty in establishing and maintaining effective work and social relationships.")

The Board acknowledges that the Veteran's difficulties with PTSD symptoms have included some degree of impaired impulse control involving unprovoked irritability.  However, the Board finds that the disability picture shown by the evidence does not include significant "periods of violence," as the accounts of irritability describe a pattern of behavior that does not feature significant acts of violence.  The Board notes that the 50 percent disability rating currently in effect contemplates occupational and social impairment involving disturbances of mood and difficulty with relationships; the Board finds that the Veteran's symptoms of irritability more nearly approximate the criteria for a 50 percent rating.

The Board also acknowledges that the Veteran's PTSD symptoms involve difficulty in adapting to stressful circumstances, including with descriptions of arguments with his supervisor at work and angry reactions in 'road rage' situations.  However, in the context of the broader complete disability symptom picture, the Board finds that this difficulty adapting to stressful situations does not cause the PTSD disability picture to more nearly approximate the severity of disability contemplated by a 70 percent rating; the Board finds that the severity of the complete PTSD symptom picture most nearly approximates, and is adequately contemplated by, the criteria for the 50 percent disability rating currently in effect.  The Board notes that the criteria for a 50 percent disability rating contemplate 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 Board finds that the broad picture of PTSD symptoms presented in all of the evidence of record, informed by the Veteran's own account of his symptoms, most nearly approximates the level of disability contemplated by the 50 percent rating; the Board notes that most of the example symptoms listed in the criteria for a 50 percent rating strongly match the symptoms found in the probative psychiatric evaluation reports of record.

The Board also observes that occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks due to depressed mood and chronic sleep impairment are contemplated by the criteria for a 30 percent rating; the Board finds that the Veteran's disability features depressed mood and sleep impairment associated with the level of occupational and social impairment that is contemplated by the currently assigned 50 percent disability rating.

Therefore, a schedular disability rating in excess of 50 percent for PTSD is not warranted.

The Board finds highly probative and persuasive the opinions of both the Veteran's private psychologist and the June 2011 VA examiner.  The Board has accepted the findings of both of these reports and resolved any subtle inconsistencies in favor of the Veteran's claim.  Even accepting the private psychologist's examination findings showing some deficits (such as in memory and concentration, and circumstantial speech) that are not as clearly shown in the June 2011 VA examination report, the disability picture featuring those symptoms continues to most nearly approximate the level of disability contemplated by the 50 percent rating currently in effect.

The Board finds that no competent medical evidence of record contradicts the findings that the Board accepts from the private and VA psychological reports discussed above.  These reports simply present a PTSD disability picture that most closely approximates symptoms such as those listed in the 50 percent rating criteria.  The Board finds the above-discussed medical reports to be highly probative as they accepted the Veteran's (and his wife's) own account of his symptoms and difficulties.  They provided clear explanations for their conclusions regarding symptoms and deficits.   The Board notes that in the recent case of Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) the Court held that "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file."  Monzingo at 7 (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)).  The Court instead has held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion."  Id.

The Board acknowledges that the Veteran's lowest GAF score of record is the relatively recent "47" assigned by the private psychologist in May 2012.  A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning.  The Board finds that this GAF is reasonably consistent with the other findings discussed above and corresponds to the Veteran's severity of disability as contemplated by the criteria for a 50 percent disability rating.  The private psychologist clearly discussed the findings pertinent to the GAF score assignment; the Board need not infer any additional findings on the basis of the score alone.  The Veteran's private psychologist cited that the Veteran "described moderate symptoms" with "a pattern of social difficulties," "intermittent impulsive homicidal ideation," and "difficulties with gesturing and yelling in the context of road rage."  The Board finds that these symptoms are contemplated by the 50 percent disability rating currently in effect.  Regardless, GAF scores are only one factor in the assessment of the severity of the Veteran's PTSD; as discussed above, a review of the record does not show that the Veteran's PTSD symptoms have been severe enough to warrant a rating in excess of 50 percent.

When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  In this case, the June 2011 VA examiner clearly indicates, as the other evidence in the record demonstrates, that the Veteran has been able to maintain full-time employment.

The Board has also considered the Veteran's statements, including in his May 2012 notice of disagreement, that his PTSD disability is worse than is contemplated by the rating he currently receives and that a higher rating is warranted.  The Veteran and his spouse are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses.  Layno, 6 Vet. App. at 470.  It is important to note that in this case the Board has accepted all of the descriptions of symptomatology presented by the Veteran and his spouse as documented in the evidence of record; the significant medical reports of record also reflect that the authoring psychologists accepted the lay account of the Veteran's symptom experiences.  However, the Veteran and his spouse have not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to the severity of the Veteran's PTSD according to the specific levels identified in the appropriate diagnostic code.  Nothing in the record demonstrates that the Veteran or his spouse have received any special training or acquired any medical expertise in evaluating psychiatric conditions.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Accordingly, this lay evidence lacks probative value.

On the other hand, highly probative and persuasive evidence concerning the nature and extent of the Veteran's PTSD disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which PTSD is evaluated.

In sum, the Board finds that the preponderance of the evidence is against finding that a disability rating in excess of 50 percent is warranted for the Veteran's PTSD disability.  The Board emphasizes that the evidence clearly reflects that the Veteran suffers from serious psychiatric symptoms associated with service-connected PTSD.  The currently assigned 50 percent disability rating contemplates very serious psychiatric symptoms, and the Board simply finds that the Veteran's shown PTSD symptomatology does not meet the criteria for a higher rating.

Lumbosacral Spine

The Veteran's appeal for an increased disability rating for lumbosacral spine disability arises from an April 2011 claim.  Initially, it should be noted that VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2).  In this case, VA must review the evidence of record from April 2010, to determine if there was an ascertainable increase in the Veteran's back disability.  In so doing, the Board must also consider all potentially applicable regulations pertaining to rating disabilities of the spine.

The Veteran's service-connected thoracolumbar spine disability with degenerative joint disease has been rated as 10 percent disabling by the RO under the provisions of Diagnostic Code 5237 for lumbosacral strain throughout the period on appeal.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  A 10 percent rating requires thoracolumbar spine forward flexion greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling.  38 C.F.R. § 4.71a.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 1.

Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 2.  Further, all measured ranges of motion should be rounded to the nearest five degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 4.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 5.

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent rating.  Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating.  Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating.  A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

Diagnostic Code 5003, for degenerative arthritis, provides that degenerative arthritis, established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, etc.).  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

The Veteran's VA medical records include references to "degeneration of intervertebral disc" in problem lists, although some of the evidence makes it unclear whether such a diagnosis has been objectively confirmed.

A May 2011 VA examination report associated with the development of this claim shows that the Veteran reported increasing lower back pain and stiffness, requiring increasing medication and pain management treatment.  The Veteran described being awakened by throbbing low back pain 2 to 3 nights per week, causing him to be tired during the day.  The Veteran described occasional sharp shooting pains down anterior thighs bilaterally.  He denied bladder or bowel dysfunction.  The Veteran denied any hospitalizations or symptom flare-ups.  The Veteran reported experiencing paresthesias.  The examiner commented that the bilateral lower extremity sensory radicular pain from back to thigh, ending just above the knee, was "unrelated to claimed disability."

The Veteran described symptoms of fatigue, decreased motion, stiffness, spasm, and "deep achy" constant daily spine pain that was described as moderate in severity.  The Veteran described that the pain radiates to his bilateral lower extremities as a sharp shooting shock pain.  The Veteran did not use assistive devices or aids, but reported he was not able to walk one mile (although was able to walk a quarter-mile).  The Veteran avoided flare-ups by strictly avoiding activities that would prompt a flare-up.

Significantly, the May 2011 VA examination report indicates that there are "No" incapacitating episodes associated with the Veteran's spine disease.  

Physical examination revealed a stooped posture, but normal head position and gait and symmetrical appearance.  Scoliosis was noted, but no other abnormality of spinal curvature was present.  Examination revealed right sided spasm as well as bilateral guarding, pain with motion, and tenderness.  There was no atrophy or weakness.  The examiner specifically found that there was not such muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour.  Active range of motion testing of the thoracolumbar spine revealed flexion to 75 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, left lateral rotation to 20 degrees, right lateral flexion to 15 degrees, and right lateral rotation to 25 degrees.  There was objective evidence of pain on active range of motion testing and following repetitive motion; however, the examiner found "No" additional limitations after three repetitions of range of motion.

Reflex examination findings were normal for all nerves bilaterally.  Sensory examination findings were normal in all respects for both lower extremities.  Detailed motor examination findings were normal, with full active motion against resistance, bilaterally in all testing; muscle tone was normal with no atrophy.

Diagnostic imaging revealed "Mild degenerative changes" but the "intervertebral disc spaces are intact."  The examiner diagnosed "sciatica" with degenerative joint disease of the lumbosacral spine.  The examiner noted that the disability caused increased tardiness and absenteeism (the Veteran reported missing 2 weeks from work in the prior year) as well as problems with lifting and carrying, problems with lack of stamina, problems with weakness or fatigue as well as pain, and an inability to climb ladders or stand or bend for prolonged periods.  The examiner noted that the Veteran remained independent with his activities of daily living.

A March 2011 private chiropractor report discusses the Veteran's back disability and presents examination findings.  The chiropractor reported that "his true lumbar flexion (hips immobile) is 25 degrees active, and 25 degrees passive."  Additionally, the report indicates "true extension is zero degrees active and zero degrees passive."  The chiropractor reported that "[t]here is substantial loss of mobility of motor segments L4 and L5 on motion evaluation which is concomitant with spasm of the deep musculature at those levels."  The report indicates that straight leg raise testing was positive at 20 degrees bilaterally.  The chiropractor diagnosed: "Post traumatic residual degenerative joint disease and bilateral chronic discopathy of the lumbar spine emphasis lumbosacral region."  The March 2011 private report also presents findings of "discogenic sciatic radicular pain" in both lower extremities without any additional significant detail.

The March 2011 private report and the May 2011 VA examination report present apparently conflicting findings with regard to the Veteran's back.  Significantly, the March 2011 private report indicates that the Veteran's spine was limited to 25 degrees of "true flexion," whereas the May 2011 VA examination report shows 75 degrees of thoracolumbar spinal flexion.  These reports of flexion are highly inconsistent with one another, with the VA examination report being consistent with the criteria for a 10 percent disability rating while the private report is consistent with a much higher 40 percent disability rating.  The Board must consider how these disparate findings may be reconciled with each other.

Although the March 2011 and May 2011 reports correspond to examinations conducted at different times, the Board finds that they are proximate enough in time such that the severe disparity in the findings suggests a contradiction rather than fluctuations in the Veteran's range of motion.  In the context of all the evidence of record, including the Veteran's VA medical records and his own statements, there is no explanation or description of circumstances in which the Veteran's forward flexion reduced to 25 degrees in March 2011 and then recovered to 75 degrees of flexion in May 2011.  The May 2011 VA examination report shows that the Veteran's own description of symptoms denied experiencing flare-ups and included no suggestion of such a substantial recent change in his range of motion.  The Board finds that if the Veteran had in fact experienced an improvement in his forward flexion from 25 degrees to 75 degrees in the course of two months, such would be accompanied by some notation of significant medical treatment and/or comment by the Veteran to medical professionals evaluating his back disability; the fact that the Veteran denied experiencing flare-ups and otherwise described no extreme variability in his range of motion during his May 2011 VA examination conducted for the purposes of evaluating his disability strongly suggests that the discrepancy in the March and May 2011 range of motion figures is not a reflection of an actual changes in the range of motion.  Thus, the Board considers the two reports to be conflicting evidence regarding the extent of the Veteran's actual pertinent range of motion.

Although the March 2011 private chiropractor's report presents findings more favorable to the Veteran's claim, the Board finds that this report is less probative than the May 2011 VA examination report with which it conflicts.  The Board may presume that the correct methods and procedures for measuring range of motion for VA compensation purposes were applied by the May 2011 VA examiner, and there has been no indication of any irregularity in the procedures raised by the evidence or the Veteran's contentions in this case.  The March 2011 private report, however, does not indicate that compatible procedures, such as the use of a goniometer, were applied in determining what the report refers to as "true flexion."  The private examiner's description of the finding as "true flexion" itself suggests that it is distinguished in some manner from other medical means of measuring flexion, and the report indicates that the Veteran's hips were kept immobile during the private examiner's flexion measurement.  Furthermore, the Board notes that the March 2011 private report is highly inconsistent with not only the May 2011 VA examination report, but also all other pertinent medical evidence of record.  A November 2012 VA medical record shows the Veteran with no limitation of motion of the spine at that time.  Although prior to the period on appeal, the Board observes that an August 2008 VA examination report provides detailed range of motion test results including flexion from 0 to 90 degrees.  All of the spinal range of motion testing of record is significantly more consistent with the May 2011 VA examination report's findings than with the March 2011 private report's findings.

As the Board finds that the March 2011 private report and the May 2011 VA examination report are in conflict, particularly with regard to measurement of spinal forward flexion, and as the Board finds that the May 2011 VA examination report is more probative and consistent with the broader set of evidence of record, the Board concludes that the May 2011 VA examination report is a more probative and persuasive accounting of the Veteran's spinal range of motion during this period than is the March 2011 private report.

In light of this, the Board concludes that the most probative evidence in this case is against finding that the Veteran has thoracolumbar spine forward flexion of 60 degrees or less.  The only evidence indicating forward flexion of 60 degrees or less is the March 2011 private report which the Board finds is contradicted by more probative evidence.  The probative May 2011 VA examination report makes clear that although the Veteran had pain and functional limitations associated with his limitation of flexion, these factors were considered in detail and there was no corresponding additional limitation of functional motion even after repetitive testing.  The May 2011 VA examination report also shows a combined range of motion of greater than 120 degrees (it shows a 165 degree combined range of motion).  No evidence shows a combined range of motion that is not greater than 120 degrees; the March 2011 private report does not present all of the components necessary for a combined range of spinal motion.  The May 2011 VA examination report clearly and specifically indicates that the Veteran does not have muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; there is no evidence to the contrary on this point, including in the March 2011 private report.

The Board has considered that there are some conflicting indications of record as to whether or not the Veteran has intervertebral disc disease associated with his service-connected spinal disability.  However, it is unnecessary at this time discuss or resolve this question.  Most significantly, regardless of whether the Veteran has intervertebral disc disease, the evidence of record clearly weighs against finding that any such pathology manifests in symptoms meeting the criteria for a disability rating in excess of 10 percent.  A higher rating on the basis of any disc disease would require a showing of associated incapacitating episodes (requiring bed rest prescribed by a physician and treatment by a physician) of a duration of at least 2 weeks during a one year period.  No evidence of record suggests that his has taken place.  Indeed, the May 2011 VA examination report specifically indicates that the Veteran had not had any such incapacitating episodes.  The Veteran's medical records do not otherwise document any periods of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician.  

Thus, the Board finds that the most probative evidence of record shows that the Veteran's service connected spinal disability does not meet the criteria for a disability rating in excess of 10 percent.

Increased Rating Conclusion and Extraschedular Consideration

In this decision, the Board has found that the evidence discussed above is highly probative with regard to evaluating the severity of the Veteran's PTSD and spinal disability symptoms on appeal in this case.  The evidence features the Veteran's statements, private medical reports, and VA examination reports presenting professional medical impressions and the Veteran's own account of symptom details.  The reports specifically document and address the Veteran's symptom complaints, document the pertinent specialized clinical findings, and present competent medical examiners' assessments of the disabilities informed by direct interview and inspection of the Veteran together with consideration of the pertinent history.  The evidence in this case does not show that the Veteran's PTSD and back disability have manifested in symptomatology most nearly approximating the criteria for assignment of any higher ratings for any portion of the period on appeal.

The Board has reviewed the entirety of the evidence of record, including the Veteran's testimony and additional medical records with references to the Veteran's PTSD and back disability.  The Board finds that none of the evidence of record probatively contradicts the findings discussed above, nor does any of the evidence of record otherwise probatively show that the criteria for any further increased rating are met in this case.

The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal have been more severely disabling than the assigned disability ratings reflect.  The Board has carefully considered the Veteran's contentions and testimony.  Lay testimony is competent to describe such complaints as the frequency and nature of symptoms such as pain, and perceivable interference with activities.  The Board has considered the Veteran's testimony in such respects.  However, VA examination reports show that the Veteran's own account of his symptom details to medical professionals considered together with findings from objective medical evaluations reflect that the PTSD and back disability most nearly approximate the criteria for the disability ratings currently assigned; the evidence does not support finding that the pertinent symptoms of these disabilities have more nearly approximated the criteria for assignment of higher disability ratings for any portion of the period on appeal.  Staged ratings are not for application because the Veteran's PTSD and back disability are adequately contemplated by the assigned ratings during the entire time period in question for each issue.

Finally, in making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence with regard to any adverse determination in this decision.  The preponderance of the evidence is against finding entitlement to any increased rating in this appeal.  As the preponderance of the evidence is against assignment of any further increased ratings, the benefit-of-the-doubt doctrine does not apply and the claims must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).

The Board also recognizes that the Veteran and the record indicate that the claimed service-connected disability symptoms have had an impact upon the Veteran's functioning, including work functioning.  In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The application of such schedular criteria was discussed in great detail above.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  Id.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

In this case, the pertinent symptoms fit squarely within the criteria found in the relevant Diagnostic Codes for the disabilities at issue.  In short, the rating criteria contemplate not only his symptoms but the severity of his disabilities.  The Veteran's symptoms and deficits associated with PTSD have been identified in detail in the psychiatric/medical evidence discussed above; the disability features occupational and social impairment featuring symptoms contemplated by the broad rating criteria and the examples presented in Diagnostic Code 9411; the contentions and evidence do not identify symptoms beyond the occupational and social impairment discussed in the rating criteria applied above.  The Veteran's symptoms and deficits associated with his back disability are likewise presented in detail in the medical evidence discussed above; the disability features limitation of motion of the spine involving pain and fatigability as is contemplated by the rating criteria of Diagnostic Code 5237 with consideration of 38 C.F.R. § 4.45.  For these reasons, referral for extraschedular consideration is not warranted.

Additionally, the Court recently held that a request for a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Id.

Although the Veteran has submitted evidence of medical disabilities, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, nor has he claimed to be unemployable due to his PTSD or back disability.  In fact, the Veteran is currently employed and has worked on a full-time basis during the appeal period.  A May 2011 VA examination report concerning the Veteran's back and knees notes that the Veteran had maintained his current employment for "10 to 20 years."  Other evidence, including a March 2011 private psychiatric report and a June 2011 VA psychiatric examination report, also shows that the Veteran has maintained long-term full-time employment.  Employment was most recently reconfirmed in a November 2012 VA medical record.  Therefore, the question of entitlement to a total disability rating based on individual unemployability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

Service connection for TMJ syndrome is not warranted.  An initial disability rating in excess of 50 percent for PTSD is not warranted.  A disability rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine is not warranted.  To these extents, the appeal is denied.


REMAND

First Right Metacarpal (Right Thumb)

A September 2011 RO rating decision granted service connection for residuals of fracture of the first right metacarpal (claimed as right thumb condition) and assigned a noncompensable disability rating effective from April 13, 2011.  The Veteran appeals for a higher disability rating, essentially contending that the right thumb disability is more severe than the current rating reflects.

The RO has rated the right thumb disability under Diagnostic Code 5228 for limitation of motion of the thumb.  Diagnostic Code 5228 provides for a noncompensable rating when there is limitation of motion of the thumb with a gap of less than one inch between the thumb pad and the fingers, when the thumb is attempting to oppose the fingers.  For a 10 percent rating, there must be a gap of one to two inches between the thumb pad and the fingers when the thumb is attempting to oppose the fingers.  38 C.F.R. § 4.71a, Diagnostic Code 5228.  A compensable (10 percent) rating is also assignable for favorable ankylosis of the major or minor thumb.  38 C.F.R. § 4.71a, Diagnostic Code 5224.

In this case, the Veteran has not clearly contended or testified that his right thumb is ankylosed or that there is a gap of one inch or greater when the Veteran attempts to oppose his fingers with his right thumb.  Significantly, the Veteran's contentions, including as he expressed to the May 2011 VA examiner, concern his difficulties with diminished grip strength and fatigability of the right thumb.  The May 2011 VA examination report clearly acknowledges that the Veteran has objective evidence of pain during motion and during repetitive testing.  The May 2011 VA examination report also indicates that the right thumb disability may represent arthritis; the examiner requested X-ray study of the disability, describing the problem as involving "persistent arthritis and decreased thumb [range of motion]" in the X-ray study request.

It is important to note that the provisions of Diagnostic Code 5010, for traumatic arthritis, and Diagnostic Code 5003, for degenerative arthritis, may apply in this case in which the Veteran has a service-connected joint disability associated with an in-service injury.  Pursuant to Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

In other words, if the Veteran is diagnosed with arthritis of the right thumb established by X-ray findings, then a 10 percent rating may be warranted even in the absence of compensable limitation of motion when there is some limitation of motion objective confirmed findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

In this case, the diagnosis of the right thumb disability remains unclear even after the May 2011 VA examination conducted to address this appeal; the examiner merely diagnosed "healed wrist fracture 1st metacarpal (tbd [to be determined] by xray)."  However, the May 2011 VA examiner refers to a belief that the Veteran may have arthritis of the right thumb joint in the examiner's request for X-ray study of the right thumb; the request refers to a history of right wrist and thumb "persistent arthritis" requiring "[p]lain films of wrist and thumb for dx/ status per protocol."  The examiner also clearly noted objective evidence of pain during motion and during repetitive testing and noted some limitation of motion (the right thumb was noted to have active range of motion less than that necessary to close the entire gap between thumb and fingers, although the gap was less than one inch).  Thus, a compensable rating may be warranted under Diagnostic Code 5003 if X-ray imaging confirms a diagnosis of arthritis.  Unfortunately, the claims-file does not contain the results of the X-ray study ordered by the May 2011 VA examiner.

The VA examiner's June 2011 addendum to the report is focused upon addressing the etiology of the right thumb disability; it is ambiguous with regard to specific current diagnosis and it does not discuss X-ray findings pertinent to the right thumb.  The Board is unable to otherwise locate any documentation of the right thumb X-ray findings associated with the May 2011 VA examination report; the Board has searched the physical claims-file as well as Virtual VA.

The Board is unable to complete appropriately informed appellate review without any indication of record as to whether X-ray study of the right thumb ordered by the May 2011 VA examiner confirmed a diagnosis of arthritis.  The Board must remand this issue so that the outcome of that X-ray study may obtained and made available for review and/or that a medical determination be made regarding whether the Veteran's right thumb disability involves arthritis confirmed by X-ray imaging.  The RO/AMC should also attempt to obtain clarification from the May 2011 VA examiner as to the specific diagnosis of the Veteran's current right thumb disability; this information will indicate whether consideration of other Diagnostic Codes may be warranted in light of the Veteran's symptom complaints featuring weakness and fatigability of his grip strength in the right hand associated with right thumb disability.  (The Board also observes that the May 2011 VA examination report indicates that the Veteran's right thumb disability causes a variety of impairments upon daily activities, ranging in severity from mild to moderate to severe.)

Sciatica (Right and Left Lower Extremities)

The RO has assigned separate noncompensable disability ratings for the Veteran's sciatica in each lower extremity, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, dealing with the sciatic nerve.  Under Diagnostic Code 8520, pertaining to paralysis of the sciatic nerve, mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating.  An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  See "note" at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a.

The RO's September 2011 rating decision granted service connection for sciatica of each lower extremity on the basis of diagnosis presented in a March 2011 private medical report and a May 2011 VA examination report focused upon the purpose of rating the Veteran's back disability.  The September 2011 rating decision assigned a noncompensable rating for sciatica in both lower extremities on the basis of there being no "objective findings of sensory or motor impairment."  However, the Board notes that the May 2011 VA examination report was not clearly purposed or focused upon a neurological evaluation of the Veteran's sciatic nerve function with sufficient detail to make clear whether the Veteran may have at least mild incomplete paralysis involving at least some sensory deficit.  The Board notes that the May 2011 VA examination report indicates that the Veteran has some sensory problems associated with the disability ("Paresthesias? Yes") including bilateral "sensory radicular pain from back to thigh, ending just above knee."  The May 2011 VA examination report does include broad reflex, sensory, and motor examination findings in connection with evaluating the spine; however, in light of the fact that service connection was subsequently established for sciatica and in light of the fact that the May 2011 VA examination indicates the presence paresthesias (without further detail) and sensory radicular pain in the lower extremities, the Board finds that a focused neurological examination specifically addressing the extent of any sciatic nerve deficit in each lower extremity would be tremendously helpful to informed review of this issue.

As appellate review of this issue requires the Board to make an informed determination of the appropriate characterization of the extent of incomplete paralysis of the Veteran's sciatic nerve of each lower extremity (less than "mild," "mild," "moderate," and so on), in light of the medical evidence of record the Board finds that it is most reasonable at this time to afford the Veteran a VA neurological examination to make specific findings pertinent to characterizing sciatic nerve deficits in each lower extremity.  The Board finds that the existing evidence of record is not adequate for fully informed appellate review at this time.


Knees (Right and Left)

The Veteran's service-connected degenerative joint disease with patellofemoral syndrome of each knee has been rated 10 percent disabling in each knee (two separate 10 percent ratings) under Diagnostic Code 5260 for limitation of flexion.  In addition to Diagnostic Code 5260, a number of Diagnostic Codes are pertinent to consideration of assigning a rating for the Veteran's knee disabilities in this case.  Among the other Diagnostic Codes which may be applicable, Diagnostic Code 5258 provides that dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5258.

In this case, the Board notes that the May 2011 VA examination report evaluating the Veteran's knees shows that the Veteran did not experience any locking episodes of the knees as of that time ("Locking episodes: None").  However, more recently, a January 2012 VA treatment record (reviewed in Virtual VA) shows that the Veteran sought new knee braces to treat described symptoms that suggest a worsening in the severity of his knee disabilities; among the symptoms the Veteran described was "knee sometimes ... locks up."  This assertion may speak to a specific element of the rating criteria for a higher disability rating (a 20 percent rating for either knee with dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint).  At the least, the symptom report indicates that the Veteran is now experiencing knee symptomatology that he was not experiencing at the time of the May 2011 VA examination.  VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995).  Under the circumstances of this case, the Board finds that another VA examination is appropriate.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should attempt to obtain the results of the X-ray study of the Veteran's right thumb and right wrist requested by the VA examiner in connection with the May 2011 VA examination in connection with the right thumb / first right metacarpal issue on appeal (the May 2011 VA examination report includes the request for "Plain films of wrist and thumb for dx/ status per protocol," but not the results).  The results of the X-ray study should be associated with the claims-file.  If the RO/AMC determines that the X-ray study results are unobtainable or do not exist, such determination should be clearly documented in the claims-file along with documentation of the reasons for the determination.

2.  Once the right thumb / right wrist X-ray study results (discussed above) are obtained (or are determined to be unavailable), the RO/AMC should take appropriate action to obtain a clear specific medical diagnosis of the Veteran's service-connected right thumb disability, to specifically include making a clear determination as to whether the disability involves objectively confirmed arthritis.  All joints in the thumb with arthritis should be identified.  Appropriate development should be accomplished to clearly determine (a) whether the disability involves objectively confirmed arthritis, (b) whether the Veteran's complaints of diminished right grip strength and endurance involve a muscle injury component, and (c) whether the Veteran's complaints of diminished right grip strength and endurance involve a neurological injury component.  The claims-file should be forwarded to the author of the May 2011 VA examination report concerning the right thumb disability for clarification of this matter, if necessary, to determine the specific diagnosis.  A new VA examination should be scheduled for the Veteran, if necessary to determine the specific diagnosis.

3.  The RO/AMC should schedule the Veteran for a VA neurological examination to ascertain the severity of the service-connected sciatica of both the right and left lower extremities.  The Veteran's claims folder must be available to the examiner in conjunction with the examination.  All medically indicated special tests or studies should be conducted.

The examiner should expressly offer an opinion for each lower extremity as to whether the sciatica is most accurately described reflecting a disability picture consistent with incomplete paralysis which is mild, moderate, moderately severe, or severe.

4.  The RO/AMC should schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected right and left knee disabilities.  It is imperative that the claims folder be reviewed in conjunction with the examination.  All special tests and clinical findings should be clearly reported to allow for application of VA rating criteria.

Range of motion testing should be accomplished.  The examiner should also report the point (in degrees) that any range of motion is limited by pain.  Any additional functional loss due to weakness, fatigue, and/or incoordination should be reported, to include an estimate of any additional limitation of motion during flare-ups.

The examiner should also clearly report whether there is recurrent subluxation or lateral instability and, if so, whether it is slight, moderate, or severe in degree.

With reference to the Veteran's complaint of locking in his knees (documented in a January 2012 VA medical report), the examiner should clearly report whether either knee has dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint.

5.  After completion of the above and any further development deemed necessary by the RO/AMC, the issues on appeal should be readjudicated.  The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate review.

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).




______________________________________________
M. C. Graham
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs