Citation Nr: 1324148	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  09-21 1541	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent prior to July 30, 2009, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD) with depressive disorder.

2.  Entitlement to an initial evaluation for right knee patellofemoral syndrome, status post arthroscopy with medial partial menisectomy and partial synovectomy (right knee disability), in excess of 10 percent for the period from March 14, 2007 to February 24, 2009, and in excess of 20 percent beginning April 1, 2009.

3.  Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral syndrome (left knee disability).  

4.  Entitlement to an initial rating in excess of 10 percent for chronic right ankle sprain.

5.  Entitlement to an initial compensable rating for residuals of right spontaneous pneumothorax.
6.  Entitlement to a compensable rating for residuals of an old healed fracture of the fifth metacarpal neck of the right hand (right hand disability).

7.  Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

R. Casadei, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from July November 1995 to November 2002, from February 2003 to January 2004 and from September 2005 to March 2007.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico, (RO), which granted service connection and assigned initial ratings for the claims currently on appeal, effective March 14, 2007.  

In a subsequent September 2012 rating decision, the RO granted a 70 percent evaluation for PTSD with depressive disorder, effective July 30, 2009, the date of the most recent VA PTSD examination.  Although the RO granted a higher 70 percent disability rating for PTSD with depressive disorder effective July 30, 2009, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable.  See A.B. v. Brown, 6 Vet. App. 35 (1993).
As for the Veteran's right knee disability, the RO assigned a temporary 100 percent disability rating from February 24, 2009 to April 1, 2009 based on surgical treatment of the right knee.  Subsequently, in a November 2010 rating decision, the RO granted an evaluation of 20 percent, effective April 1, 2009.

In a statement dated June 2009, the Veteran indicated that he wanted a hearing before the Board to be heard at the RO (Travel Board).  In a September 2009 written statement signed by his representative, the Veteran withdrew his request for a hearing.  Therefore, the request for a hearing has been withdrawn.

Further, the United States Court of Appeals for Veterans Claims (Court) held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on TDIU as a result of that disability is warranted.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In a May 2011 rating decision, the RO denied a TDIU that was not appealed; however, in a subsequent September 2012 rating decision, the RO granted a 70 percent evaluation for PTSD with depressive disorder.  The Board finds that the evidence again raises the issue of entitlement to a TDIU. 

The issue of a TDIU due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  For the initial rating period prior to July 30, 2009, the Veteran's PTSD with depressive disorder has more nearly been approximated by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, and mood, due to such symptoms as: anxiety, irritability, periods of violence, impaired impulse control, avoidance of crowds, sleep impairment, nightmares, and difficulty in establishing and maintaining effective work and social relationships.

2.  For the entire initial rating period on appeal, the Veteran's PTSD with depressive disorder has not more nearly approximated total occupational and social impairment.

3.  For the initial rating period prior to February 24, 2009, the Veteran's right knee disability was manifested by pain and stiffness with limitation of flexion from 0 to 130 degrees with pain starting at 130 degrees and extension at zero degrees.

4.  For the rating period beginning April 1, 2009, the Veteran's right knee disability was manifested by pain, locking, stiffness, with no instability or subluxation, and with limitation of flexion, at worst, from 0 to 120 degrees with pain starting at 120 degrees and extension limited to 15 degrees.

5.  For the entire initial rating period on appeal, the Veteran's left knee disability has been manifested by painful and weakened motion with extension to 0 degrees, with flexion that exceeded 45 degrees, with no lateral instability or recurrent subluxation, and without dislocation or removal of the semilunar cartilage.

6.  For the entire initial rating period on appeal, the Veteran's residuals of chronic right ankle sprain have been manifested by pain, with dorisflexion, at worst, to 15 degrees, and plantar flexion, at worst, to 35 degrees.

7.  The Veteran's residuals of spontaneous pneumothorax are manifested by mild symptoms of chest pain, wheezing, and coughing; and pulmonary function testing results of FEV-1 of 90 percent predicted and FEV1/FVC of 100 percent predicted.

8.  For the entire initial rating period on appeal, the Veteran's right (major) fifth metacarpal fracture residuals have been manifested by decreased dexterity.   





CONCLUSIONS OF LAW

1.  The criteria for an increased 70 percent rating, but no higher, for PTSD with depressive disorder have been met for the initial rating period prior to July 30, 2009.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).

2.  For the entire initial rating period on appeal, the criteria for a 100 percent disability rating for PTSD with depressive disorder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).

3.  For the initial rating period prior to February 24, 2009, the criteria for an initial disability rating in excess of 10 percent for a right knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5261 (2012).

4.  For the rating period beginning April 1, 2009, the criteria for an evaluation in excess of 20 percent for a right knee disability have not been met.  38 U.S.C.A.          §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5261 (2012).

5.  For the entire initial rating period on appeal, the criteria for an evaluation in excess of 10 percent for a left knee disability have not been met.  38 U.S.C.A.          §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5261 (2012).

6.  For the entire initial rating period on appeal, the criteria for a disability rating in excess of 10 percent for chronic right ankle sprain have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271 (2012).

7.  For the entire initial rating period on appeal, the criteria for a compensable rating for the residuals of right spontaneous pneumothorax have not been met.  38 C.F.R. §  1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.97, Diagnostic Code 6843 (2012).

8.  For the entire initial rating period on appeal, the criteria for an initial compensable disability rating for the right (major) fifth metacarpal fracture residuals have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5215 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004).  

The claims on appeal arise from the Veteran's disagreement with the initial evaluations assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The Veteran's service treatment and personnel records, VA treatment records, Social Security Administration disability records, post-service medical records and statements (translated from Spanish to English), and the Veteran's statements have been associated with the claims file.  Further, the Board notes that the Veteran was afforded VA examinations in February 2008, July 2009, and March 2011, to address the severity of his disabilities.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; fully addresses the relevant rating criteria; and contain a discussion of the effects of the Veteran's disabilities on his occupational and daily activities.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Further, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Disability Rating Criteria
	
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21 (2012).  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. §§ 3.102, 4.3 (2012).

The Veteran is contesting the disability evaluations that were assigned following the grant of service connection for his disabilities.  This matter is therefore to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection.  The Court has observed that in the latter instance, evidence of the present level of the disability is of primary concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date).  See Fenderson, 12 Vet. App. at 126-27.  Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," evaluations of the disability based on the facts shown to exist during the separate periods of time.  See Fenderson, at 126-27.  Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

In rendering a decision on appeal the Board must also 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.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  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").

PTSD Rating 

As discussed above, the Veteran is in receipt of a 50 percent disability rating for PTSD with depressive disorder prior to July 30, 2009 under Diagnostic Code 9411.  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; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).

The Veteran is also in receipt of a 70 percent disability rating for PTSD with depressive disorder for the period after July 30, 2009.  A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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); and inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name.  Id.

In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability.  See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so).

In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV).  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned.  Id.  

Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).  

GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work).  Id.

GAF scores from 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, with some meaningful interpersonal relationships.  Id.

GAF scores ranging from 51 to 60 reflect 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).  Id.

Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job).  DSM-IV at 46-47.  

GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work).  Id.

The Veteran asserts that his PTSD with depressive disorder is worse than the current evaluation contemplates and contends a higher rating in excess of 50 percent is warranted.  See Veteran's statement dated January 2008.  Although the RO granted a 70 percent disability rating for PTSD with depressive disorder effective July 30, 2009, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable.  See A.B., 6 Vet. App. 35.

After reviewing all the lay and medical evidence of record, the Board finds that the criteria for a higher evaluation of 70 percent, but no higher, have been met for the rating period prior to July 30, 2009.  In this regard, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD with depressive disorder more nearly approximated occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood, due to such symptoms as: anger and irritability, impaired impulse control with violence, sleep impairment, nightmares, and inability to establish and maintain effective relationships.  The Board further finds that an evaluation in excess of 70 percent for PTSD with depressive disorder is not warranted for any period on appeal.  

The Veteran was afforded a psychiatric VA examination in February 2008 for evaluation of mental disorders, except PTSD.  During the interview process, the Veteran stated that he had been arrested for disorderly conduct on New Year's Eve, and had been involved in several street fights, the last one having occurred four days prior to the February 2008 VA examination.  He also reported that he was married twice and was currently divorced.  The Veteran stated that he had three children all of which he did not have a relationship with at the time.  He reported the following symptoms:  moderate anxiety, severe intolerance of crowds, severe irritability, severe physical aggressiveness, and sleep impairment with nightmares.  

Upon mental status examination in February 2008, the Veteran's speech was spontaneous, attitude was cooperative, affect was constricted, and mood was anxious.  The VA examiner noted that the Veteran had poor impulse control as evidenced by his past episodes of violence.  The examiner also noted that the Veteran was currently unemployed after being dismissed from his job for being involved in a physical altercation with another employee.  The VA examiner diagnosed the Veteran with depressive disorder and assigned a GAF score of 65, indicative of mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships.  See DSM-IV at 46-47.  Moreover, the VA examiner noted that the Veteran's mental disorder had no effect on his occupational and social functioning.  

The Board finds the February 2008 VA examination to be of little probative value as to the severity of the Veteran's PTSD and depressive disorder disability.  The VA examiner did not diagnose or evaluate the Veteran's PTSD, his primary mental health disability, as evidenced by service treatment records and post-service VA treatment records.  Further, despite numerous admissions by the Veteran regarding episodes of violence and irritability, both in social and in work settings, the VA examiner noted that there were no effects of the Veteran's mental health disorders on his occupational and social functioning.  The Board finds this conclusion contradictory to the medical evidence of record and contradictory to the Veteran's lay statements during the February 2008 VA examination.  

In a February 2008 VA psychiatric progress note, the VA psychiatrist noted that the Veteran had significant issues due to increased irritability and impulsivity.  According to the VA psychiatrist, the Veteran had three serious incidents since his last visit, one of which included losing his job due to his violent behavior, and also nightmares related to the war in Iraq.  Upon mental status examination, the VA psychiatrist noted that the Veteran's mood was anxious, affect was blunted, and the Veteran had poor judgment.  The Veteran was assigned a GAF score of 55, reflecting moderate symptoms or moderate difficulty in social, occupational, or school functioning.  See DSM-IV at 46-47.  

The Veteran was afforded a VA PTSD examination in July 2009.  The Veteran described severe daily restlessness, severe daily irritability, moderate sleep impairment, and moderate nightmares associated with traumatic in-service events.  The Veteran also reported being arrested after being involved in a fight in his neighborhood.  He reported that he moved to the countryside in order to avoid people.  The VA examiner noted that the Veteran did not participate in any activities and presented social isolation qualities.  

Upon mental status examination, the July 2009 VA examiner noted that the Veteran was restless, his mood was anxious, and affect was normal.  The Veteran did not report homicidal or suicidal ideation, panic attacks, or hallucinations.  The VA examiner noted that the Veteran avoided thoughts, feelings, and conversations associated with the in-service trauma.  The Veteran was noted as also avoiding activities, places, or people that arouse recollections of the trauma and had markedly diminished interest in activities and experienced feelings of detachment and estrangement from others.  The VA psychiatrist noted marked social limitation and noted that the Veteran lost his job due to his aggressive behavior.  The VA psychiatrist diagnosed the Veteran with PTSD and assigned a GAF score of 58, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning.  As for effects of the Veteran's PTSD on social and occupational functioning, the VA psychiatrist opined that the Veteran's PTSD symptoms resulted in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  

In the September 2012 rating decision, which granted a 70 percent PTSD rating, effective July 30, 2009, (the date of the last VA PTSD examination), the RO based the increased 70 percent rating, in large part, on the findings of the June 2009 VA examination.  Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD symptoms more nearly approximated a 70 percent disability rating for the period prior to the July 30, 2009 VA examination.  In this regard, the Board finds that symptoms and manifestations associated with the Veteran's PTSD with depressive disorder, as reported in the June 2009 VA examination, were also present prior to July 30, 2009 and remained consistent in severity throughout the entire initial rating period on appeal.  

Specifically, during the February 2008 VA examination, the Veteran reported having been arrested for disorderly conduct, and had been involved in several street fights.  The Board finds that this evidence reflects serious deficiencies in judgment and thinking prior to July 30, 2009.  During the February 2008 VA examination and in the February 2008 VA treatment note, the Veteran reported losing his job due to violence against an employee while at work.  The Board finds that this supports a finding that the Veteran's lack of impulse control and irritability causes serious deficiencies at work and with colleagues prior to July 30, 2009.  Moreover, throughout the entire rating period, the Veteran has consistently reported estrangement from his children and difficulty being around people.  In fact, all of the Veteran's PTSD symptoms have remained relatively consistent throughout the initial rating period, including his sleep impairment, severity and frequency of nightmares, reduced participation in social and leisure activities, and anxiety.  For these reasons, the Board finds that throughout the entire initial rating period, the Veteran has reported PTSD symptoms resulting in deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.  

Also, with respect to the Veteran's GAF scores, the evidence of record reflects scores ranging from of 55 to 65, which contemplate mild to moderate PTSD symptoms or mild to moderate difficulty in social, occupational, or school functioning.  See DSM-IV at 46-47.  According to the DSM-IV, a GAF score is a scale indicating psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability.  Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown 8 Vet. App. 240 (1995).  The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder, which provide the primary basis for the rating assigned.  38 C.F.R.                  § 4.126(a) (2012).  

In this case, for the period prior to July 30, 2009, the Veteran's lowest GAF score was 55 in a February 2008 VA psychiatric treatment note.  That notwithstanding, the VA psychiatrist noted significant issues due to "increased irritability and impulsivity."  In February 2008 the Veteran had a violent altercation at work and had been arrested for disorderedly conduct.  Upon mental status examination, the VA psychiatrist noted that the Veteran's mood was anxious, affect was blunted, and the Veteran had poor judgment.  The Board finds that the evidence of record demonstrate moderate to serious symtomatology consistent with a 70 percent PTSD rating for the period prior to July 30, 2009.

For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the lay and medical evidence demonstrates that the Veteran's PTSD symptoms more nearly approximate a 70 percent PTSD disability evaluation.  The Board finds that a 70 percent disability rating is warranted for the initial rating period prior to July 30, 2009.  See 38 C.F.R. § 4.3.
The Board next finds that a higher evaluation in excess of 70 percent for PTSD with depressive disorder is not warranted for any rating period on appeal.  The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous.  Mauerhan at 442.

With this in mind, the evidence shows that the Veteran's overall PTSD with depressive disorder picture is adequately contemplated by the 70 percent rating (prior to July 30, 2009 granted herein).  The Veteran does suffer from sleep impairment and nightmares, but this is specifically listed under the criteria for a 30 percent rating, a lower rating than his currently assigned 70 percent evaluation.  Disturbance of motivation and mood (depression), and difficulty in establishing and maintaining relationships are specifically contemplated in the 50 percent rating criteria.  The same is true with the Veteran's anxiety, which is a symptom contemplated under the 30 percent PTSD disability rating.  The Veteran's impaired impulse control (such as unprovoked irritability with periods of violence) is specifically contemplated under the 70 percent PTSD rating criteria.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.

Moreover, the Board notes that the Veteran's GAF scores have been 65, 55, and 58 throughout the appeal period.  The majority of these scores are in the moderate range for assessing PTSD symptoms and do not demonstrate total occupational and social impairment.  See DSM-IV at 46-47.  

In sum, the Board finds that the lay and medical evidence of record, including the assigned GAF scores do not demonstrate 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; and memory loss for names of close relatives, or for the veteran's own occupation or name.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  While the Veteran has shown intermittent episodes of violence characterized as disorderly conduct in January 2008, a street fight in February 2008, incidents of violent behavior at work in February 2008 and a fight in his neighborhood in July 2009,  these incidents do not rise to the level of severity as contemplated under a 100 percent PTSD rating because it is not shown that he is in  persistent danger of hurting himself or others.  Moreover, the Veteran has consistently denied suicidal ideation and hallucinations.  During the VA examinations, the Veteran has not been found to have deficiencies in communication, memory, or disorientation to time and place.

For these reasons, the Board finds that an initial rating of 70 percent, but no higher, for PTSD with depressive disorder prior to July 30, 2009 is warranted.  The Board further finds that a rating in excess of 70 percent for PTSD with depressive disorder is not warranted for the entire initial rating period.

Right Knee Disability Rating Prior to February 24, 2009

The Veteran is in receipt of a 10 percent rating for a right knee disability from March 14, 2007 to February 23, 2009.  The Veteran was granted a temporary 100 percent disability rating based on right knee surgery from February 24, 2009 to April 1, 2009.  Beginning April 1, 2009, the Veteran's right knee disability is rated as 20 percent disabling.  The Board will therefore consider whether a higher rating in excess of 10 percent is warranted for the period prior to February 24, 2009, and whether a rating in excess of 20 percent is warranted for the period beginning April 1, 2009.  See Hart, 21 Vet. App. 505.

The Veteran's right knee disability was initially assigned a 10 percent rating under Diagnostic Code 5299-5261 for painful limitation of motion.  See May 2008 rating decision.  The RO then assigned a 20 percent disability rating effective April 1, 2009 under Diagnostic Code 5299-5259 for removal of symptomatic semilunar cartilage.  For the reasons discussed in detail below, the Board finds that the more appropriate rating for the Veteran's right knee disability, for the period effective April 1, 2009, is under Diagnostic Code 5261 (limitation of motion: extension).   

Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2012).  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the Diagnostic Code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be "99" for all unlisted conditions.  Then, the disability is rated by analogy under a Diagnostic Code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology.  38 C.F.R. §§ 4.20, 4.27 (2012).

In evaluating knee disabilities, Diagnostic Code 5010 governs arthritis due to trauma, substantiated by x-rays findings.  That code simply directs the rating specialist to rate in accordance with degenerative arthritis. Diagnostic Code 5003 (degenerative arthritis) rates by analogy to limitation of motion of the joint affected.  That code also provides a 10 percent rating where limitation of motion cannot be objectively confirmed; however, in this case, the assigned disability ratings already equal 10 percent for each knee for the entire period.

In this case, the Board finds that the Veteran has not been diagnosed with arthritis, substantiated by x-ray findings, for his right knee disability.  As such, Diagnostic Code 5003 and Diagnostic Code 5010 are not applicable.  

Other potentially applicable diagnostic codes pertaining to the knees, include Diagnostic Code 5256, which contemplates ankylosis of the knee.  Under Diagnostic Code 5256, a 60 percent evaluation is assigned for extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more; a 50 percent evaluation is assigned for flexion between 20 and 45 degrees; a 40 percent evaluation is assigned for flexion between 10 and 20 degrees; and a 30 percent evaluation is assigned for a favorable angle in full extension, or in slight flexion between 0 and 10 degrees.  Id.

Other impairment of the knee is assigned a 30 percent evaluation for severe recurrent subluxation or lateral instability; a 20 percent evaluation for moderate recurrent subluxation or lateral instability; and a 10 percent evaluation for slight recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

A 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  

A 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic.  38 C.F.R. § 4.71a, Diagnostic Code 5259.

VA's Office of General Counsel has also provided guidance concerning increased rating claims for knee disorders.  In VAOPGCPREC 9-98, General Counsel noted that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion.  Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered.

Under Diagnostic Code 5260, limitation of flexion of the leg warrants a 30 percent evaluation where flexion is limited to 15 percent; a 20 percent evaluation where flexion is limited to 30 degrees; a 10 percent evaluation where flexion is limited to 45 degrees; and a 0 percent evaluation where flexion is limited to 60 degrees.              38 C.F.R. § 4.71a, Diagnostic Code 5260.

Limitation of extension of the leg warrants a 50 percent rating where extension is limited to 45 degrees; a 40 percent rating where extension is limited to 30 degrees; a 30 percent rating where extension is limited to 20 degrees; a 20 percent rating where extension is limited to 15 degrees; a 10 percent rating where extension is limited to 10 degrees; and a 0 percent rating where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004).  Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.

The evidence of record includes a February 2008 VA examination where the Veteran reported experiencing bilateral knee pain, stiffness, crepitation, and decreased strength after prolonged sitting, climbing, or descending stairs.  The Veteran denied swelling, rubor of the knees, catching, locking, and giving way.  Upon physical examination and review of x-ray reports, the VA examiner diagnosed the Veteran with right knee patellofemoral pain syndrome.  There was no evidence of dislocation or recurrent subluxation or instability of the knee.  The examiner also noted flexion at 140 degrees with painful motion at 130 degrees and normal extension (zero degrees).  The VA examiner did not report any additional limitation of function due to fatigue, lack of endurance, or weakness after repetitive use.  

Based on the February 2008 VA examination report, the RO assigned a 10 percent rating under 5299-5261 for the Veteran's right knee patellofemoral pain syndrome, rated by analogy to Diagnostic Code 5261.  Upon review of the evidence of record, the Board finds that a higher initial rating in excess of 10 percent for the Veteran's right knee disability is not warranted for the period prior to February 24, 2009.

Specifically, the evidence demonstrates that flexion, at worst, was to 130 degrees with pain on motion.  As such, limitation of flexion was not demonstrated to a degree that would warrant a higher 20 percent rating for the right knee under Diagnostic Code 5260.  Extension was noted as normal.  As such, a higher rating under Diagnostic Code 5261 is also not warranted.  

Further, the Board finds that a higher rating is also not warranted under Diagnostic Code 5257, which provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257.  In the present case, the February 2008 VA examiner did not report instability of the right knee and the Veteran specifically denied the right knee giving way.  The Lachman test (used to evaluate stability of the knee) was negative.  As such, a higher evaluation under Diagnostic Code 5257 is not warranted.

Moreover, the Veteran's complaints of pain, stiffness, and weakness have been considered with regard to whether higher rating based on limitation of motion is warranted.  The February 2008 VA examination noted painful motion at 130 degrees and no additional limitation of function due to fatigue, lack of endurance, or weakness after repetitive use.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995).  The Board finds that these symptoms are adequately considered in the currently assigned 10 percent disability evaluation.  

The Board has also considered other Diagnostic Codes relating to the right knee for the period prior to February 24, 2009; however, the Board finds that they are not applicable.  The record does not demonstrate evidence of ankylosis of the knee (Diagnostic Code 5256); dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion (Diagnostic Code 5258); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263).  As such, the Board finds that a higher initial rating in excess of 10 percent for the right knee for the initial period prior to February 24, 2009 is not warranted under any of these Diagnostic Codes.  

For these reasons, the Board finds that the weight of the evidence is against a grant of a rating in excess of 10 percent for right knee disability for the initial rating period prior to February 24, 2009.  

Right Knee Disability Rating From April 1, 2009

As noted above, the RO assigned a temporary 100 percent disability rating from February 24, 2009 to April 1, 2009 based on surgical treatment of the right knee.  Subsequently, in a November 2010 rating decision, the RO granted an evaluation of 20 percent, effective April 1, 2009.  The Board will therefore address whether a higher rating in excess of 20 percent is warranted for the period beginning April 1, 2009.

The evidence of record includes a July 2009 VA knee examination where the Veteran reported pain, giving way, instability, stiffness, weakness, locking, and incoordination of the right knee.  Upon physical examination, the VA examiner reported crepitus, pain at rest, weakness, and guarding of movement.  The examiner noted no instability, effusion, dislocation, and the McMurray test (used to evaluate individuals for tears in the meniscus) was negative.  Range of motion testing revealed flexion to 120 degrees and extension was normal, to zero degrees.  The examiner noted objective evidence of pain following repetitive motion, but no additional limitation of motion after three repetitions.  The VA examiner diagnosed the Veteran with right knee patellofemoral syndrome and stated that there were moderate to severe effects on the Veteran's daily activities due to the right knee disability (e.g. chores, shopping, sports, exercising, and dressing).

In a subsequent VA examination, dated March 2011, the Veteran reported locking, swelling, and pain in the right knee.  Upon physical examination, the VA examiner noted crepitus, tenderness, and abnormal motion.  There was no instability, grinding, effusion, or dislocation noted.  Range of motion testing revealed flexion to 120 degrees and extension was limited to 15 degrees.  The examiner noted objective evidence of pain following repetitive motion, but no additional limitation of motion after three repetitions.  

Based on the evidence of record, the Board finds that a higher rating in excess of 20 percent is not warranted for the rating period beginning April 1, 2009.  VA examinations of record reveal right knee flexion, at worst, to 120 degrees and extension, at worst, limited to 15 degrees.  See March 2011 VA examination.  In order to obtain a higher rating under Diagnostic Code 5260 or 5261, range of motion testing would have to show flexion limited to 15 degrees or extension limited to 20 degrees.  Here, the evidence of record does not demonstrate range of motion limitation warranting a higher rating in excess of 20 percent. 

Further, although the Veteran has reported instability of the knee, both the July 2009 and March 2011 VA examiners found no objective evidence of lateral instability or recurrent subluxation.  In the July 2009 VA examination, the examiner reported that the McMurray test was negative.  The March 2011 VA examiner noted that both the Lachman and McMurray tests were negative.  For these reasons, the Board finds that a higher evaluation under Diagnostic Code 5257 is not warranted.

The Board has considered other Diagnostic Codes relating to the knees; however, the Board finds that they are not applicable.  The evidence does not demonstrate evidence of ankylosis of the knee (Diagnostic Code 5256); dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion (Diagnostic Code 5258); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263).  As such, the Board finds that a higher initial rating in excess of 20 percent for the right knee is not warranted under any of these Diagnostic Codes.  

Given the Veteran's right knee menisectomy and partial synovectomy surgery, the Board has also considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5259 pertaining to removal of symptomatic semilunar cartilage.  Under Diagnostic Code 5259, a 10 percent rating is the maximum evaluation permitted; therefore, a higher rating in excess of the Veteran's current 20 percent evaluation is not possible under this code.  

The Board further finds that a separate rating under this same diagnostic code (Diagnostic Code 5259) is also not warranted.  As noted above, pursuant to VAOPGCPREC 9-98, given that limitation of motion is a relevant consideration under Diagnostic Code 5259, the Board notes that to assign a separate 10 percent rating under Diagnostic Code 5259 would compensate the Veteran for the same symptoms already considered under Diagnostic Code 5261 and would violate the rule against pyramiding.  See 38 C.F.R. § 4.14.  In other words, a separate rating under Diagnostic Code 5259 would be based, at least in part, on painful motion and such symptomatology is already contemplated in the Veteran's current 20 percent rating under Diagnostic Code 5261 (limitation of motion: extension).

The Veteran's complaints of pain, stiffness, and weakness have been considered with regard to whether higher rating based on limitation of motion is warranted.  The March 2011 VA examination noted flexion to 120 degrees and extension limited to 15 degrees with objective evidence of pain following repetitive motion, but no additional limitation of motion after 3 repetition.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995).  The Board finds that these symptoms are adequately considered in the currently assigned 20 percent disability evaluation.  


For these reasons, the Board finds that the weight of the evidence is against a grant of a rating in excess of 20 percent for a right knee disability for the rating period beginning April 1, 2009.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b);  38 C.F.R. §§ 4.3, 4.7.

Left Knee Disability Rating

The Veteran's left knee disability has been rated as 10 percent disabling for the entire initial rating period on appeal.  The Veteran's left knee disability, rated under Diagnostic Code 5299-5261, was based on painful motion of the knee under the provisions of 38 C.F.R. § 4.59.  See September 2012 supplemental statement of the case.  For the reasons discussed in detail below, the Board finds a higher rating in excess of 10 percent for the entire initial rating period on appeal is not warranted.

As discussed in the previous section, the Veteran underwent VA knee examinations in February 2008, July 2009, and March 2011.  At the outset, the Board finds that the only diagnosis of record pertaining to the Veteran's left knee is patellofemoral pain syndrome.  See VA knee examination reports.

In the February 2008 VA examination, the Veteran reported bilateral knee pain, stiffness, crepitation, and decreased strength after prolonged sitting, climbing, or descending stairs.  The examiner noted left knee flexion at 140 degrees with painful motion at 130 degrees.  Extension was to zero degrees.  The VA examiner did not report any additional limitation of function due to fatigue, lack of endurance, or weakness after repetitive use.  There was no evidence of dislocation or recurrent subluxation or instability of the knee.  

In the July 2009 VA knee examination, the Veteran reported pain, giving way, instability, stiffness, weakness, locking, and incoordination.  Upon physical examination, the VA examiner reported crepitus, pain at rest, weakness, and guarding of movement.  Range of motion testing for the left knee revealed flexion to 140 degrees and extension was to zero degrees.  The examiner noted objective evidence of pain following repetitive motion, but no additional limitation of motion after repetitions.  

In the most recent March 2011 VA examination, the Veteran reported locking, swelling, and pain in the left knee.  Upon physical examination, the VA examiner noted crepitus, tenderness, and abnormal motion.  There was no instability, grinding, effusion, or dislocation noted.  Range of motion testing revealed flexion to 120 degrees and extension was limited to zero degrees.  The examiner noted no objective evidence of pain with active motion in the left knee, but objective evidence of pain was noted following repetitive motion.  

In a VA orthopedic treatment note, dated November 2011, the Veteran complained of left knee swelling after exercising.  The VA physician stated that there was no effusion or deformity in the left knee.  Range of motion was normal and no liganmentous instability was noted.  See November 2011 VA treatment note in the Virtual VA electronic claims file. 

Upon review of the medical evidence of record, the Veteran's left knee flexion has consistently exceeded 45 degrees.  Despite pain on motion, limitation of flexion was not demonstrated to a degree that would warrant a 20 percent rating for the left knee.  See Diagnostic Code 5260 (20 percent rating contemplates flexion limited to 30 degrees).  Extension has consistently been measured to zero degrees (i.e., normal).  

The Board has also considered the effect of the Veteran's symptoms on motion and on his ability to carry out normal activities.  During the February 2008 VA knee examination, the examiner noted that the Veteran's bilateral knee pain does not interfere with daily chores, but on occasion when squatting, the Veteran experienced increased knee pain bilaterally.  In the July 2009 VA examination report, the examiner noted that there were moderate to severe effects on the Veteran's daily activities due to the bilateral knee pain.  In the March 2011 VA examination, where the VA examiner separated the Veteran's left and right knee disabilities, the examiner noted no effects on the usual daily activities due to the Veteran's left knee pain.  Given that the March 2011 VA examiner provided separate opinions for the Veteran's left and right knee, the Board finds the March 2011 VA examiner's opinion to be more probative in regard to the effects of the Veteran's left knee disability on daily activities.  

The record demonstrates that the Veteran has left knee patellofemoral pain syndrome.  In addition, there is slight limited motion as well as painful motion.  The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to a minimum compensable (10 percent) rating for such symptomatology.  See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 does not require arthritis for a minimum rating for the specific joint).  A 10 percent rating is already assigned for painful motion of the left knee for the entire period on appeal.  Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment.  

Turning to lateral instability, under Diagnostic Code 5257, the Board finds that a disability rating in excess of 10 percent is not warranted for the left knee on the basis of lateral instability or recurrent subluxation.  In the February 2008 VA examination, the Veteran did not report instability of the left knee and denied the left knee giving way.  Upon physical examination, the examiner did not report recurrent subluxation or instability of the left knee and the Lachman test (used to evaluate stability of the knee) was negative.  In the July 2009 VA knee examination, the Veteran reported giving way and instability of both knees.  Upon physical examination, the VA examiner reported crepitus, pain at rest, weakness, and guarding of movement; however, the examiner noted no instability and the McMurray test (used to evaluate individuals for tears in the meniscus) was negative.  In the March 2011 VA examination, the Veteran denied instability of the left knee and none was found upon physical examination.  

The Board finds that while the Veteran is competent to report his symptoms, his use of the word instability does not necessarily implicate lateral instability or subluxation, which are the specific criteria listed under Diagnostic Code 5257.  The Veteran's use of the term instability could have other meanings, such as a general instability in standing due to knee weakness.  This is in fact more consistent with his description than is lateral instability.  Weakness is specifically contemplated under the rating for limitation of motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca.  Here, the Board finds the VA examiner's specific findings regarding lateral instability to be more probative as to the criteria under Diagnostic Code 5257 than the Veteran's description of instability.

The Board has also considered other diagnostic codes.  Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  In this case, the evidence does not demonstrate a dislocated semilunar cartilage in the left knee. While there are findings of locking and pain, the Board finds that these symptoms are reasonably contemplated and have been addressed in the ratings currently assigned under Diagnostic Codes 5299-5261.  See also 38 C.F.R. § 4.59.  Assignment of a separate rating under Diagnostic Code 5258 would constitute pyramiding.  See 38 C.F.R. § 4.14.  

Turning to other codes, in this case, there is no clinical evidence or assertion on the part of the Veteran that there is nonunion or malunion of the tibia and fibula, absent semilunar cartilage, or genu recurvatum in the left knee.  See Diagnostic Codes 5262, 5258, 5263.  As such, a rating under any of the corresponding codes is not warranted.  There is also no suggestion of ankylosis of the left knee for purposes of Diagnostic Code 5256.  Ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992).  The Veteran's demonstrated motion of the left knee is persuasive evidence of the lack of ankylosis.

For these reasons, the Board finds that the weight of the evidence is against a finding of a rating in excess of 10 percent for left disability for the entire initial rating period on appeal.  To the extent any higher level of compensation is sought for this period, the preponderance of the evidence is against these claims, and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R.                §§ 4.3, 4.7.

Rating for Right Ankle Disability

In the May 2008 rating decision, the RO granted service connection and assigned an initial 10 percent rating for chronic right ankle sprain, pursuant to Diagnostic Code 5299-5271, effective March 14, 2007.  The Veteran contends that his right ankle disability warrants a higher evaluation.

Under Diagnostic Code 5271, limited motion of the ankle warrants a 10 percent disability evaluation if moderate, and a 20 percent evaluation if marked.  The Board observes that the words "moderate," and "marked" are not defined in the rating schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are equitable and just.  See 38 C.F.R. § 4.6 (2012).

The Board will also consider the application of other diagnostic codes.  For example, for ankylosis of the ankle under Diagnostic Code 5270, a 20 percent evaluation is assigned for plantar flexion of less than 30 degrees, a 30 percent evaluation can be assigned for ankylosis (complete bony fixation) of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees.  A maximum 40 percent evaluation can be assigned for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or deformity.  See 38 C.F.R. § 4.71a, Diagnostic Code 5270.

Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II.  

In the February 2008 VA examination, the Veteran reported twisting his ankle on several occasions and complained of occasional right ankle pain ranging from 2 or 3 on a pain scale.  Upon examination, the VA examiner noted negative anterior-posterior test, and negative talar tilt test.  Range of motion testing revealed 15 to 20 degrees dorsifleion, and 35 to 40 degrees plantar flexion.  There was no ankylosis of the right ankle.  The VA examiner noted that the Veteran walked without assistive devices in equal step length and normal cadence.  

During the July 2009 VA examination, the Veteran reported right ankle pain, giving way, instability, stiffness, weakness, incoordination, and decreased joint motion.  Upon physical examination, the VA examiner noted an antalgic gait and the Veteran reported that he occasionally used a cane and brace for assistance.  The examiner noted that the right ankle was tender with no instability, abnormality, or angulation.  Range of motion testing revealed 20 degrees dorsifleion, and 45 degrees plantar flexion with pain.  Although objective evidence of pain following repetitive motion was noted, there was no additional limitation of motion.  Further, ankylosis of the right ankle was not shown.    

During the March 2011 VA examination, the Veteran noted that he had increased discomfort of the right ankle during cold weather, but no pain.  The Veteran stated that he was not receiving treatment for the right ankle condition.  Upon physical examination, the VA examiner noted mild limping on the right side and antalgic gait.  Tenderness in the right ankle was noted, but no instability, abnormality, or angulation was present.  There was no ankylosis of the right ankle.  Range of motion testing revealed 20 degrees dorsiflexion, and 40 degrees plantar flexion.  The VA examiner noted no objective evidence of pain on motion, no objective evidence of pain following repetitive motion, and no additional limitation of motion.  The VA examiner further noted that the Veteran's right ankle condition caused mild to moderate effects on the Veteran's daily activities.  

The Board finds that the weight of the evidence does not warrant a rating in excess of 10 percent under Diagnostic Code 5271 for the Veteran's right ankle disability.  In this regard, both the July 2009 and March 2011 VA examiners found no instability, abnormality, or angulation of the right ankle.  In the February 2008 VA examination, the Veteran reported occasional right ankle pain (2 or 3 on a pain scale).  In March 2011, the VA examiner noted no objective evidence of pain on motion, no objective evidence of pain following repetitive motion, and no additional limitation of motion.  Throughout the entire rating period on appeal, dorisflexion was, at worst, to 15 degrees, and plantar flexion was, at worst, to 35 degrees.  The March 2011 VA examiner further noted that the Veteran's right ankle condition causes only mild to moderate effects on his daily activities.  For these reasons, the Board finds that the Veteran's right ankle disability more nearly approximate a moderate limitation of motion (10 percent) of the ankle under Diagnostic Code 5271.  See 38 C.F.R. § 4.71a, Diagnostic Code 5271.  

The Board has considered whether any other diagnostic codes pertaining to the Veteran's right ankle are applicable in this case.  The Veteran's service-connected disability does not warrant a separate or higher rating under Diagnostic Codes 5270 or 5272 because he has never demonstrated or been diagnosed with ankylosis of the right ankle.  He has also never been diagnosed with malunion of the os calcis or astragalus or ever underwent astragalectomy, thus, Diagnostic Codes 5273 and 5274 are not for application in this case.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274.  

Moreover, the Veteran's complaints of pain, stiffness, giving way, instability, incoordination, decreased joint motion and weakness have been considered with regard to whether higher rating based on limitation of motion is warranted.  The July 2009 VA examination shows range of motion of the ankle and indicated that while there was objective evidence of pain following repetitive motion, there was no additional limitation of motion.  The March 2011 VA examination showed on objective evidence of pain on motion , pain following repetitive motion or additional limitation of motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995).  The Board finds that these symptoms are adequately considered in the currently assigned 10 percent disability evaluation.  

After careful review of the available diagnostic codes and the competent, credible, and probative evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an evaluation higher than the 10 percent rating for the right ankle disability.


Rating for Residuals of Spontaneous Pneumothorax

Service connection for spontaneous pneumothorax was granted in the May 2008 rating decision with a noncompenable rating, effective March 14, 2007.  The Veteran's spontaneous pneumothoirax disability is currently rated under Diagnostic Code 6843, which pertains to traumatic chest wall defects, pneumothorax, hernia, etc.

Under Diagnostic Code 6843, pneumothorax is evaluated under the General Rating Formula for Restrictive Lung Disease and require the use of pulmonary function testing.

The General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) provides for a 100 percent rating for findings that show Forced Expiratory Volume (FEV-1) less than 40 percent of predicted value; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or the need for outpatient oxygen therapy.  38 C.F.R. § 4.97.

A 60 percent rating is assigned for FEV-1 of 40- to 55- percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  Id.

A 30 percent rating is assigned for FEV-1 of 56- to 70- percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.  Id.

A 10 percent rating contemplated FEV-1 of 71- to 80- percent predicted, or; FEV-1/FVC of 71 to 80 percent or; DLCO (SB) 66- to 80-percent predicted.  Id.
The Veteran was afforded a VA examination in February 2008 where he complained of right chest pain.  The VA examiner noted deceased breath sounds, but did not perform pulmonary function testing.

In an August 2009 VA respiratory examination, the Veteran reported near-constant coughing, wheezing, and occasional chest pain.  Pulmonary function testing revealed FEV-1 of 90 percent predicted, and FEV-1/FVC of 100 percent predicted.  The VA examiner noted that the Veteran's lung condition had only mild effects on his usual daily activities. 

Based upon the evidence of record, the Board finds the Veteran's residuals of spontaneous pneumothorax are manifested by subjective complaints of coughing, wheezing, and occasional chest pain.  Pulmonary function testing in August 2009 revealed a FEV-1 of 90 percent predicted and FEV-1/FVC of 100 percent predicted, warranting a noncompensable evaluation under the provisions of Diagnostic Code 6843.  There is no evidence of any greater disability manifested by pulmonary function testing indicating FEV-1 of 71- to 80-percent predicted or DLCO of 66- to 80-percent predicted which would warrant a 10 percent disability rating.

For these reason, the Board finds the claim for a compensable rating for the residuals of spontaneous pneumothorax for the entire initial rating period on appeal must be denied.

Rating for Residuals of Right Fifth Metacarpal Fracture

In the May 2008 rating decision, the RO granted service connection for residuals of old healed fracture of the fifth metacarpal neck (little finger) of the right hand, and assigned a noncompensable rating, effective March 14, 2007, under Diagnostic Code 5215 (limitation of motion of the wrist).  As the Veteran's right hand disability also includes residuals associated with a fracture of his little finger, the Board will evaluate the Veteran's right hand disability under all applicable Diagnostic Codes, including those relating to digits (fingers).  See Diagnostic Codes 5224-5230.

 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.              38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  In Burton, 25 Vet. App. at 5, the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.

In the February 2008 VA examination, the Veteran reported that after suffering a fall and fracturing his right hand, he now has occasional right hand pain associated with strong hand grip and the duration of strong hand grip.  He described his pain as a 2 on a pain scale from 0 to 10, and denied flare-ups.  The VA examiner noted that the right hand disability did not interfere with activities of daily living.  Upon physical examination, the examiner noted no ankylosis of any joint in the right hand.  Range of motion testing of the wrist and hand revealed the following:  wrist dorsiflexion was to 20 degrees; metacarpophalangeal flexion was to 30 degrees; proximal interphalangeal joint flexion was to 30 degrees; and thumb abduction and rotation revealed thumb pad faced finger pads.  The VA examiner noted no painful motion, and adequate strength to push, pull, twist, probe, write, and touch.  There was no additional loss of function after repetitive use due to fatigue, lack of endurance, or weakness.  

In the July 2009 VA examination, the Veteran reported right hand pain every three to four months, especially in cold weather and while grabbing heavy objects.  Upon physical examination, the VA examiner noted no ankylosis of any right hand joints.  Active range of motion was found to be normal in all fingers (index, long, ring, little, and thumb).  The VA examiner noted no objective evidence of pain upon range of motion testing for any finger.  Further, the right hand disability was noted as only affected the Veteran in the following daily activities: severely in exercising, moderately while participating in sports, and moderately during recreational activities.  

In the most recent March 2011 VA examination, the Veteran stated that his right hand pain was 10 out of 10 on a pain scale and stated that it had progressively worsened.  Upon physical examination, the VA examiner noted no objective evidence of pain or abnormal hand movements, but decreased dexterity 4 out of 5 in handgrip was noted.  Active range of motion was found to be normal in all fingers (index, long, ring, little, and thumb) with no evidence of pain after repetitive motion.  The VA examiner noted no ankylosis or deformity of any digits.  X-ray imaging results showed no degenerative changes in the metacarpophalangeal joint.    

Based on a review of the competent and probative evidence of record, the Board finds that a compensable rating is not warranted throughout the appellate period for the Veteran's right hand disability.  

A review of the record, including VA examinations dated February 2008, July 2009, and March 2011, reveal that the Veteran is right-hand dominant.  For adjudicative purposes, his right hand is the major extremity.  38 C.F.R. § 4.69.

As noted above, the Veteran's disability involve residuals of a fracture to the right fifth metacarpal (little finger).  Diagnostic Code 5227 provides that ankylosis of the little finger, whether favorable or unfavorable, and whether of the major or minor hand, is to be rated as noncompensable.  38 C.F.R. § 4.71a.  Therefore, under Diagnostic Code 5227, a compensable rating is not for application because the highest schedular rating for ankylosis of the little finger of either hand is noncompensable.  See 38 C.F.R. § 4.71a, Diagnostic Code 5227.

Other diagnostic codes pertaining to the hand and fingers were considered; however, because ankylosis of multiple digits (Diagnostic Codes 5220 -5223) is not shown, and because limitation of motion of the thumb, index and/or long finger is not demonstrated pursuant to Diagnostic Codes 5228 or 5229, a compensable rating is not assignable for limited motion and/or ankylosis of individual or multiple digits.  
Additionally, limited motion of the wrist is also not demonstrated such that a compensable rating pursuant to Diagnostic Code 5215.  There are no other potentially applicable diagnostic codes to rate the service-connected residuals of a fracture to the right fifth metacarpal.

The Board has also considered whether a compensable rating should be provided for a painful, unstable, or malaligned joint.  See Burton, supra; see also 38 C.F.R.           § 4.59.  A compensable rating, however, under section 4.59 is not for application in this case because the weight of the lay and medical evidence does not demonstrate painful, unstable, or malaligned joints.  In the February 2008 VA examination, the Veteran described his pain as a 2 on a pain scale from 0 to 10.  The VA examiner, however, did not note that the Veteran experienced painful motion, and found adequate strength to push, pull, twist, probe, write, and touch.  In the July 2009 VA examination, the Veteran reported right hand pain every three to four months, especially in cold weather and while grabbing heavy objects.  Upon physical examination, the VA examiner noted no objective evidence of pain upon range of motion testing for any finger.  In the most recent March 2011 VA examination, the Veteran stated that his right hand pain was 10 out of 10 on a pain scale and stated that it had progressively worsened.  Although the Veteran reported that his pain had increased to a 10, the Board finds the Veteran's statement regarding severity of pain not credible as a physical examination revealed no objective evidence of pain on motion or after repetition.  Rather, upon physical examination, the March 2011 VA examiner noted no abnormal hand movements, but only decreased dexterity 4 out of 5 in handgrip was noted.  Active range of motion was found to be normal in all fingers (index, long, ring, little, and thumb) with no evidence of pain after repetitive motion.  

The Board finds the objective clinical evidence in the VA examinations described above to be more probative than the Veteran's statements made pursuant to a claim for increased VA compensation purposes.  See Cartright, 2 Vet. App. at 25 (interest may affect the credibility of testimony).  For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for residuals of a fracture to the right fifth metacarpal.  In denying additional and higher ratings, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's disabilities.  In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

Turning to the first step of the extraschedular analysis, the Veteran's disabilities include the following:  (1) PTSD with depressive disorder manifested by anxiety, irritability, periods of violence, impaired impulse control, avoidance of crowds, sleep impairment, nightmares, and difficulty in establishing and maintaining effective work and social relationships; (2) right knee disability manifested by pain and stiffness with limitation of flexion from 0 to 130 degrees with pain starting at 130 degrees and extension to zero degrees; (3) left knee disability manifested by painful and weakened motion with normal extension, with flexion that exceeded 45 degrees, with no lateral instability or recurrent subluxation, and without dislocation or removal of the semilunar cartilage; (4) residuals of chronic right ankle sprains manifested by pain and, at worst, dorisflexion to 15 degrees and plantar flexion, at worst, to 35 degrees; (5) residuals of spontaneous pneumothorax manifested by mild symptoms of chest pain, wheezing, and cough; and pulmonary function testing results of FEV-1 of 90 percent predicted and FEV1/FVC of 100 percent predicted; and (6) residuals of right (major) fifth metacarpal fracture manifested decreased dexterity and complaints of pain.  The Board finds that for each of these disabilities, the schedular rating criteria provides ratings for the symptoms contemplated above, including the orthopedic disabilities, which provides for motion limited due to multiple factors that include pain and instability.  38 C.F.R. §§ 4.40, 4.45, 4.59.

In this case, comparing the Veteran's level for each disability and the symptomatology listed in the Rating Schedule, the degree of disability throughout the entire period under consideration is contemplated by the Rating Schedule and the assigned ratings are, therefore, adequate.  In the absence of exceptional factors associated with the Veteran's disabilities, the Board finds that the criteria for referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell, 9 Vet. App. at 337; Shipwash, 8 Vet. App. at 227.


	(CONTINUED ON NEXT PAGE)



ORDER

An initial disability rating for PTSD with depressive disorder of 70 percent, but no higher, for the period prior to July 30, 2009 is granted; and an initial disability rating in excess of 70 percent for the initial rating period from July 30, 2009 is denied.

An initial evaluation for right knee patellofemoral syndrome, status post arthroscopy with medial partial menisectomy and partial synovectomy, in excess of 10 percent for the period from March 14, 2007 to February 24, 2009, and in excess of 20 percent beginning April 1, 2009, is denied.

An initial evaluation in excess of 10 percent for left knee patellofemoral syndrome is denied.  
An initial rating in excess of 10 percent for chronic right ankle sprain is denied.

An initial compensable rating for residuals of right spontaneous pneumothorax is denied.

A compensable rating for residuals of an old healed fracture of the fifth metacarpal neck of the right hand is denied.


REMAND

A claim for entitlement to a TDIU is part of an increased rating issue when such claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009). 

There is evidence in the record that the Veteran's PTSD symptoms with depressive disorder may cause unemployability.  The Veteran reported losing his job due to violence against an employee at work.  See February 2008 VA examination.  

Entitlement to a TDIU was previously denied in a May 2011 rating decision, where the RO found that the Veteran's combined evaluation was 60 percent and did not meet the schedular requirements for a TDIU.  See 38 C.F.R. § 4.16(a) (2012).  In light of the September 2012 rating decision, which granted a 70 percent evaluation for PTSD with depressive disorder effective July 30, 2009, and the grant of a 70 percent evaluation prior to July 30, 2009 (per this decision), the Board finds that the issue of a TDIU should be remanded for readjudication as the Veteran now meets the schedular requirements under 38 C.F.R. § 4.16(a).

Accordingly, the case is REMANDED for the following action:

1. Request all outstanding VA medical records pertaining to the Veteran's disabilities and associate them with the claims file.

2. Thereafter, the Veteran should be scheduled for the appropriate VA examination(s).  The examiner should be provided the Veteran's claims file for review, and any indicated studies must be completed.  Following examination of the Veteran and review of the claims file, the examiner should provide an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities (PTSD with major depressive disorder, patellofemoral syndrome of the bilateral knees, chronic right ankle sprain, old healed fracture of the fifth metacarpal, residual surgical scars, and right lung condition).  The rationale for the opinion expressed should be set forth.

3. The AOJ should then, based on all the evidence of record, readjudicate the issue of entitlement to a TDIU due to service-connected disabilities.  If the benefit sought is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond.  Thereafter, the case should be returned to the Board, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs