Citation Nr: 1324098 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 02-19 253 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for the service-connected residuals of a shell fragment wound (SFW) of the left knee with involvement of Muscle Group (MG) XII. 2. Entitlement to an evaluation in excess of 30 percent for the service-connected residuals of SFWs of the right thigh and knee area with involvement of MGs XIV and XV. 3. Entitlement to an evaluation in excess of 20 percent for the service-connected residuals of SFW of the right leg below the knee area with involvement of MG XI. 4. Entitlement to a rating in excess of 30 percent for the service-connected post-traumatic stress disorder (PTSD), prior to January 7, 2013. 5. Entitlement to a rating in excess of 50 percent for the service-connected PTSD, beginning on January 7, 2013. REPRESENTATION Appellant represented by: Peter Sebekos, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2002 decision of the RO that, in pertinent part, denied higher evaluations for the service-connected residuals of a SFW of the left knee and residuals of SFWs of the right thigh and knee area and assigned an increased rating of 30 percent for the service-connected PTSD. In a March 2005 rating decision, the RO granted service connection for degenerative arthritis of both knees and assigned separate 10 percent ratings for each knee. The Veteran offered testimony before the undersigned Veterans Law Judge at a personal hearing held at the RO in January 2006. A transcript of these proceedings has been associated with the Veteran's claims file. At his hearing, the Veteran raised the issue of service connection for a left ear hearing impairment. He also raised the issues of increased ratings for a service-connected right forearm disability and prostate cancer residuals, as well as that of entitlement to total compensation rating based on individual unemployability. These matters were referred back to the RO for the appropriate action. In an April 2006 decision, the Board denied higher evaluations for the service-connected residuals of SFWs of the left knee and the right thigh and knee and PTSD, and remanded the issue of a compensable evaluation for the service-connected right ear hearing loss for additional development of the record. The Veteran appealed the April 2006 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2008 Order, the Court granted the parties' Joint Motion for remand, vacating that part of the decision which denied the claims for increase and remanding the case for compliance with the terms of the Joint Motion. In a January 2010 decision, the RO assigned a 30 percent rating for the service-connected residuals of SFWs of the right thigh and knee based on damage to muscle group XIV, effective on January 24, 1969. The RO also granted service connection for the residuals of a SFW to the right hip based on injury to muscle group XV and for the residuals of a SFW below the right knee based on injury to muscle group XII and assigned a noncompensable rating for each, effective on January 24, 1969. In December 2006, the RO granted service connection for a left ear hearing loss and assigned a noncompensable rating for the now service-connected bilateral hearing loss, effective on January 29, 2001. In an August 2010 decision, the Board denied the claims for higher evaluations for the service-connected residuals of SFWs of the left knee, the right thigh and knee and for PTSD, denied a compensable rating for the service-connected bilateral hearing loss, and assigned an increased rating of 20 percent for the service-connected residuals of SFW of the right leg below the knee with damage to MGs XI and XII. In an October 2010 rating decision, the RO implemented the decision of the Board by assigning an increased rating of 20 percent for the service-connected residuals of SFW of the right leg below the knee with damage to MGs XI and XII, effective on January 24, 1969. Most recently, the Veteran appealed the August 2010 decision to the Court, and in a July 2011 Order, the Court granted the parties' Joint Motion for Partial Vacatur and Remand, vacating and remanding the matters for further action by the Board. Of preliminary importance, the Board notes that the Veteran was found to have abandoned his appeal of the denial of his claim for a compensable rating for his service-connected bilateral hearing loss. As such, this is not before the Board. However, the parties agreed that, on remand, the Board should address whether the medical evidence of record, specifically the September 2006 VA examiner's recommendation that the Veteran receive an ears, nose, and throat (ENT) medical consultation due to the noted asymmetry accompanied by his complaint of both ears feeling "plugged up," the January 2005 VA examiner's documentation of a "transient Eustachian tube dysfunction in the left ear" and a "TM [tympanic membrane] hypermobility noted for the left ear," as well as a recommendation that the Veteran be referred to an ENT specialist; and the January 26, 2004 audiology consultation document that noted complaints of "fluctuating hearing loss associated with aural fullness," that reasonably raised a claim for an increased disability rating for the service-connected perforation of the tympanic membrane, to include entitlement to an extraschedular rating and a claim of service connection for another ear disability. Based on the medical evidence identified by the parties showing bilateral "plugged up" ears and aural fullness, and left ear Eustachian tube dysfunction and tympanic membrane hypermobility, the Board finds that a claim for an increased rating for the service-connected perforation of the tympanic membrane, to include entitlement to an extraschedular rating, has been reasonably raised by the record. The Board notes that these findings may also constitute an informal claim of service connection for another related ear disability. See 38 C.F.R. § 3.157 (2012); Schroeder v. West, 212 F.3d 1265, 1269-71 (Fed. Cir. 2000) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This matter is hereby referred to the RO for development. A review of the Veteran's virtual VA claims file shows that it contains evidence not also associated with his paper claims file. This evidence was reviewed by the RO prior to the March 2013 Supplemental Statement of the Case and by the Board prior to issuing this decision. In a March 2013 rating decision, the RO awarded a 50 percent rating for PTSD, beginning on January 7, 2013. This partial, staged increase is, thus, reflected in the recharacterized issues listed hereinabove. Because the Veteran is presumed to be seeking the highest evaluation available, his claims remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues of an increased rating in excess of 20 percent for the service-connected residuals of a SFW of the left knee with involvement of MG XII, an increased evaluation in excess of 30 percent for the service-connected residuals of SFWs of the right thigh and knee area with involvement of MGs XIV and XV, and an increased evaluation in excess of 20 percent for the service-connected residuals of SFW of the right leg below the knee with involvement of MG XI are being remanded to the RO. FINDINGS OF FACT 1. Prior to January 7, 2013, the service-connected PTSD is shown to have been manifested by symptoms of intrusive recollections or thoughts, distressing dreams, nightmares, sleep impairment, and exaggerated startle response, but not productive of a disability picture manifested by more than mild to moderate impairment of social and industrial adaptability. 2. Prior to January 7, 2013, the service-connected PTSD is not shown to have been productive of social and occupational impairment manifested by 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood or difficulty in establishing effective work and social relationships. 3. Beginning on January 7, 2013, the service-connected PTSD is shown to be manifested by symptoms of intrusive recollections or thoughts, distressing dreams, nightmares, sleep impairment, depressed mood, anxiety, mild memory loss, occasional suicidal ideation with no plan, and exaggerated startle response, but is not productive of a disability picture manifested by more than mild to moderate impairment of social and industrial adaptability. 4. Beginning January 7, 2013, the service-connected PTSD is not shown to be productive of 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 worklife setting) and an inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability evaluation in excess of 30 percent evaluation, prior to January 7, 2013, for the service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2012). 2. The criteria for the assignment of a disability evaluation in excess of 50 percent evaluation, beginning on January 7, 2013, for the service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided a VCAA notice letter to the Veteran in May 2001, prior to the initial adjudication of the claims. VCAA letters were also provided in October 2003, March 2005, April 2006, August 2006, May 2008, and May 2009. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have and to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The May 2008 and May 2009 letters provided the Veteran with notice of the laws regarding degrees of disability or effective dates. The claims were readjudicated in April 2010. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. The VA treatment records dated from 2001 to March 2010 are associated with the claims folder. The Veteran's Social Security Administration (SSA) records are associated with the file. Also of record are private medical opinions, evaluation reports and treatment records. There is no identified relevant evidence that has not been obtained. The Veteran underwent VA examinations in 2001, 2005, 2006, 2009, 2013 to obtain medical evidence as to the nature and severity of the service-connected disabilities. When taken together, these examinations are adequate to evaluate the level of severity of the Veteran's PTSD. In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing, the Veteran's representative spent a considerable amount of time identifying the relevant evidence and interviewing the Veteran regarding his current symptomatology. Towards the end of the hearing, the undersigned spent time clarifying whether any additional relevant evidence was available which could be capable of substantiating these claims. As such, the Board finds that it has fully complied with the Bryant requirements. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above, a staged rating has already been assigned to the Veteran's PTSD disability. Rating mental disorders The rating criteria for rating mental disorders reads as follows: A 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The Court has held that Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32). GAF scores ranging between 61 to 70 reflect some 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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 co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Id. The Board is mindful that the symptoms listed in the General Rating Formula for Mental Disorders are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, evaluation under § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. The Diagnostic Code requires "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation ... requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). As such, the Board will consider both the specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether increased ratings are warranted. Standard of Review Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Entitlement to a higher rating for PTSD The Board finds that the service-connected PTSD is not shown to meet the schedular criteria for the assignment of disability rating in excess of 30 percent prior to January 7, 2013 or a disability rating in excess of 50 percent thereafter. The medical evidence of record shows that the service-connected PTSD increased in severity during the appeal period, which is reflected in the ratings currently assigned. The medical evidence shows that the service-connected PTSD is manifested by symptoms of intrusive thoughts, distressing dreams or nightmares, sleep impairment, irritability, and exaggerated startle response. See the VA examination reports dated in October 2001, January 2005, and August 2009. Beginning in January 2013, the Veteran demonstrated symptoms of withdrawal, isolation, anhedonia, depressed mood, low energy, poor sleep, poor attention and concentration, and feeling helpless, hopeless, and worthless. The medical evidence of record shows that the Veteran's PTSD, prior to January 7, 2013, caused mild to moderate impairment. The GAF assigned range from 59 to 67, which is indicative of moderate to mild impairment. The August 2009 VA examination report notes that the GAF score assigned for all psychiatric disabilities was a 67 which is indicative of mild impairment. The examiner stated that he was unable to assign a GAF score due to the PTSD alone. While such a GAF score attributable to PTSD alone could not be assigned, the Board will, thus, consider all GAF scores and symptomatology as a manifestation of the Veteran's PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examiner also stated that the severity of the PTSD was mild to moderate. The 2005 and 2009 VA examinations reports indicate that the Veteran's symptoms were stable throughout that period. The January 2005 VA examination report indicated that the symptoms had not worsened over the past five years and his symptoms have been stable since the last VA examination. The August 2009 VA examination report similarly indicated that there had been no changes in the functional status and quality of life since the last VA examination. The severity of the PTSD was noted to be mild to moderate. The August 2009 VA examination report indicates that the Veteran was administered the Mississippi Scale for Combat-related PTSD and the MMPI-2. The examiner noted that the results were unusual and might represent a "cry for help" but likely there was some intentional exaggeration of the current symptom picture. The examiner indicated that, based on this, a clinical interpretation of the results was not done. The medical evidence of record shows no recommendation for hospitalization due to the PTSD. As discussed, the VA examiners found the PTSD to be mild to moderate in severity and to be stable for the period in question. The Veteran was found to be competent. See the VA examination reports dated in 2001, 2005, and 2009 and the VA treatment records associated with the file. Thus, on this record, the Board finds that the criteria for a rating higher than 30 have not been met at any time prior to January 7, 2013. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. The evidence dated prior to January 7, 2013 shows that the service-connected PTSD did not cause impaired speech, difficulty understanding commands or impairment of memory. The VA examination reports indicated that speech was organized, relevant, and logical. The 2005 and 2009 VA examination reports indicated that the memory and cognition were intact or normal. His thought processes were goal-directed, logical and unremarkable. He did not have panic attacks, episodes of violence, or suicidal or homicidal ideation. There is no evidence of impaired judgment. See the 2005 and 2009 VA examination reports. The October 2001 VA examination report indicated that the Veteran was unable to work due to physical disability. The January 2005 VA examination report confirmed that he had not been employed for the least five years due to physical disability. Finally, the August 2009 VA examiner opined that the PTSD symptoms were not severe enough to interfere with occupational functioning. The records from Social Security Administration show that the Veteran was found to be disabled due to physical disabilities, not the service-connected PTSD. The evidence of record shows that the Veteran also has had symptoms of anxiety and depression, along with the manifestations specially attributable to PTSD. The August 2009 VA examiner attributed the symptoms of depression to the Veteran's medical problems and assigned a GAF score of 67 due to the PTSD and depression. While the examiner was unable to assign a GAF score due to the service-connected PTSD alone, the overall GAF score of 67 would not be reflective of more than mild overall impairment but generally with ability to function pretty well and to have some meaningful interpersonal relationships. See the DSM IV. The VA treatment records show that the Veteran experienced anxiety that had worsened to some degree due to his developing prostate cancer. However, the overall severity ranged from mild to moderate impairment for the period of the appeal. The Board finds that, prior to January 7, 2013, the service-connected PTSD caused mild to moderate impairment in social functioning, but did not result in difficulty establishing effective social relationships. The Veteran had been married for 40 years and described his relationship with his wife and children as good and with his grandchildren as great. He also reported having a friend with whom he fished. Accordingly, on his record, the Board finds that the service-connected PTSD, prior to January 7, 2013, was not shown to be productive of 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 or difficulty in establishing effective work and social relationships. Beginning on January 7, 2013, a 50 percent rating was assigned for the service-conneccted PTSD. The only relevant evidence of record since that date is the report of the January 2013 VA examination upon which the increase was based. The Axis I diagnoses were those of PTSD, depression not otherwise specified, and alcohol abuse. The GAF score was noted to be 65. The PTSD symptoms included those of intrusive memories, distressing dreams, hypervigilance, irritability, anger, and startle response. Symptoms associated with depression were noted to be withdrawal, isolation, anhedonia, depressed mood, low energy, poor sleep, poor attention and concentration, feeling helpless, hopeless, and worthless. Alcohol abuse was noted to intensify the above symptoms. With regard to the impact on the Veteran's work, the examiner indicated that hyperarousal and intrusive memories increased anxiety and depression as well as irritability and major mood swings interfere with social and occupational functioning. This has increased anxiety and depression and reduced the Veteran's ability to cope with daily stressors and lowered the Veteran's self-confidence and self-esteem. Symptoms were best described as occupational and social impairment with reduced reliability and productivity. The preponderance of this was noted to be related to PTSD and related depressive symptoms. Alcohol abuse disrupted his adjustment to a lesser extent. The Veteran had been prescribed anti-anxiety medication on an ongoing basis for many years, most likely to treat the agitation, irritability, and sleep disturbance associated with his PTSD. The notation in July 31, 2002 of "anxiety disorder with worsened symptoms" in an ambulatory care entry was recognition of his ongoing anxiety symptoms (essentially PTSD), which were being treated with medication at that time. The Veteran is shown to have maintained some social contacts through his fishing hobby and had a sustained relationship with his wife, children and grandchildren that affords him considerable emotional support. He looks forward to spending summers in Michigan with his wife and her family. The Veteran described his relationship with his wife and children as good. He had a great relationship with his great grandchildren, though he did not get to see them often. He described his relationship with his surviving siblings as good. He got along with his wife's family. He had a few friends, but preferred to be a loner. He did fish with friends and got along with most people. Currently, the Veteran was noted to occupy his time by watching television and occasionally goes fishing. He had not been employed since 1998 and consumed 4 to 10 alcoholic drinks per day. There was no history of violence or trauma. He had no history of psychiatric hospitalizations, and his only treatment consisted of being prescribed anti-anxiety medication. The Veteran was diagnosed as having PTSD in accordance with the criteria of the DSM. It was noted that the initial impact of the disability was moderate and there has been slight improvement since then, which results in a current impact of mild to moderate. The symptoms attributable to the service-connected disability were noted to include depressed mood, anxiety, chronic sleep impairment, mild memory loss, occasional and suicidal ideation. The Veteran also reported having poor attention and concentration, forgetfulness, change in appetite, crying spells and guilt. His symptoms occurred daily, were moderate, and lasted for a period of hours. The Veteran also endorsed feelings of restlessness, easy fatigue, difficulty concentrating, irritability, muscle tension and sleep disturbance. He worried excessively and had difficulty making decisions. He was unsure of himself. These symptoms were daily, moderate, and lasted for a period of hours. The Veteran denied mania and psychosis. On examination, the Veteran was noted to be clean, neatly groomed and casually dressed. He was fully oriented. His mood was reserved but engaging; his affect was appropriate, and attitude was cooperative. Speech was unremarkable, and language was good. Thought content and progression were unimpaired, and there was no tangentiality, circumstantiality, loss association, flight of ideas, delusion, or difficulty understanding complex commands. There was no gross impairment in thought processes or communication. There were no hallucinations, delusions, or grossly inappropriate behavior. There was mild memory loss, but attention and concentration were within normal limits. The Veteran's fund of knowledge was good; his intelligence was average; his insight and judgment were fair, and his abstract reasoning was within normal limits. The Veteran had chronic sleep difficulties. He reported having current suicidal ideation with no plan and denied homicidal ideation or being a persistent danger of hurting himself or others. The Veteran's relationships were limited but unremarkable. He had a fair ability to cope and had a difficulty in adapting to stressful circumstances, but it was due to his medical issues. Based on the evidence of record since January 7, 2013, the Board finds that a disability rating in excess of 50 percent is not warranted. While the Veteran demonstrates occupational and social impairment with reduced reliability and productivity due to the enumerated symptoms during that time, he is not shown to have experienced impairment or symptomatology associated with a 70 or 100 percent rating. Specifically, the only enumerated symptom associated with a 70 percent rating for PTSD that was demonstrated by the Veteran was suicidal ideation, for which the Veteran had no stated plan. With regard to deficiencies, the only one manifested by the Veteran was a deficiency in work. He demonstrated no deficiency in family relations, judgment, thinking or mood, as all were noted to be normal on examination in January 2013. There is no evidence of obsessional rituals, abnormal speech of any kind, near-continuous panic or depression that affected his ability to function independently, impaired impulse control, disorientation, neglect of personal appearance or hygiene, or difficulty adapting to stressful circumstances due to his PTSD. The examiner indicated that such difficulty was due to his physical disabilities. The Veteran is shown to have good and supportive relationships with his wife, children, grandchildren, and living siblings. While he described himself as a "loner," he reported a few friendships. The Veteran denied having delusions and hallucinations. He was not a danger to himself or others, and there is no evidence that he had an inability to perform any activities of daily living. He reported only mild memory loss. In short, the Veteran does not manifest either the symptomatology or the impairment required for a 70 percent or 100 percent rating for the service-connected PTSD at any time during the period of the appeal. Thus, the service-connected PTSD does not warrant a rating higher than 30 percent prior to January 7, 2013 or a 50 percent rating after that date under the established criteria for rating mental disorders. 38 C.F.R. § 4.7. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased rating higher than 30 percent prior to January 7, 2013 and a 50 percent rating beginning on that date for the service-connected PTSD. As such, a staged rating under Hart is for application in this case, as the disability worsened during the course of the appeal. The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. With respect to the initial inquiry posed by Thun, the Board finds that the Veteran's disability level and symptomatology are adequately described by the established rating criteria. The Veteran did not endorse any symptoms associated with the PTSD that were outside the purview of the criteria used to rate his disability. The Veteran has endorsed no symptoms associated with PTSD that are not contemplated by the rating assigned under the General Rating Formula for Mental Disorders. Therefore, these criteria are adequate to rate this disability. Without evidence reflecting that the service-connected PTSD is so "exceptional or unusual," such that the available criteria for his disabilities are rendered inadequate, further action for referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. Thun, supra. ORDER An increased rating in excess of 30 percent, prior to January 7, 2013, for the service-connected PTSD is denied. An increased rating in excess of 50 percent, beginning on January 7, 2013, for the service-connected PTSD is denied. REMAND In its prior remand, the Board directed that an examination to evaluate the service-connected disabilities that remain on appeal be conducted by an orthopedist. This was not accomplished, as the examiner that conducted the January 2013 examination is an emergency room physician. As the remand instructions were not complied with, another examination needs to be conducted. Stegall v. West, 11 Vet. App. 268 (1998). In addition, in the June 2011 Joint Motion, the parties agreed that the December 2009 VA addendum violated the holding in Jones v. Shinseki, 23 Vet. App. 382 (2010), because, as instructed, the examiner commented on a previous record showing a "20% loss of ROM of knees bilaterally" by stating that he could not comment without resorting to speculation but did not explain the reason why. This should be accomplished on remand. Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should have the Veteran scheduled for a VA muscle examination, by an orthopedist. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include x-rays) should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. After examining the Veteran and reviewing the Veteran's medical records and history, the examiner should: a. Identify the muscle group or groups affected and indicate whether there is any intermuscular or other scarring, including their dimensions, depth, and a description of any scar tenderness, ulceration, and adhesion. b. Conduct range of motion testing, expressed in degrees, of the left knee and right thigh and knee. In providing the requested findings the physician should indicate whether, on examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, after having considered the Veteran's medical history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion, if applicable. c. Indicate whether the effect on the functioning of each affected muscle group(s), if any, is slight, moderate, moderately severe, or severe. d. Indicate the effect of each disability on the Veteran's daily life and employment. e. Indicate whether the Veteran's disabilities are productive of recurrent subluxation or lateral instability in the knees and if so, whether this is slight, moderate, or severe. f. Comment on (i) the inconsistencies of the August 2009 examination and December 2009 addendum, which show findings that the Veteran reported that on more than occasion his knees have given out on him, notations of demonstrated instability, weakness, and giving way on "Summary of Joint Symptoms," and an observation that "[b]oth knees have adequate supporting structures and neither knee is unstable;" and (ii) the Veteran's reports that on more than one occasion his knees have given out on him. g. Comment on the October 2001 VA examination report, in which the examiner stated that the Veteran suffered "20% loss of ROM of knees bilaterally." If no comment on this may be offered without resorting to speculation, the examiner should so state and give the reason for this conclusion. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should indicate that. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 2. To help avoid future remand, VA must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, then appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing all indicated development, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his attorney with a fully responsive Supplemental Statement of the Case (SSOC) and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs