Citation Nr: 1327077	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  09-30 703	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for right knee strain.

2.  Entitlement to an initial rating in excess of 10 percent for left knee strain prior to December 18, 2012.

3.  Entitlement to a rating in excess of 30 percent for left knee strain from December 18, 2012.

4.  Entitlement to an initial rating in excess of 10 percent for a lumbar spine disorder prior to December 18, 2012.

5.  Entitlement to a rating in excess of 40 percent for a lumbar spine disorder from December 18, 2012.

6.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) (initially granted as an anxiety disorder).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. H. Stubbs, Counsel


INTRODUCTION

The Veteran served on active duty from January 2002 to May 2006. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and October 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The claims on appeal were previously before the Board in August 2012.  The Board remanded the claims for additional development, to include VA examinations to establish the current severity of the claims.

In June 2013, the Veteran submitted evidence without a waiver of RO review.  The majority of the evidence were copies of treatment records contained in the Veteran's service treatment records.  Additional evidence provided were statements from the Veteran that his back condition was worse than the 10 percent rating he received prior to 2012, and a February 2013 Family Medical Leave Act indicating the Veteran needed three days off of work due to his PTSD symptoms.  His contention that his back deserved a higher rating is duplicative of his previous arguments of record.  The February 2013 Family Medical Leave Act paperwork is new, but other than dates it contains the same information as the prior Family Medical Leave Act paperwork-that the Veteran's PTSD and anxiety are causing him to miss work.  Additionally, the Veteran's representative's June 2013 post-remand brief contained an argument regarding the loss of work due to the Veteran's PTSD, and addressed the wish for the Board to next address the issue.  As the information provided without a waiver was duplicative of, or of such a similar nature to, other evidence of record, the Board finds that a waiver is not necessary as the evidence does not have a separate bearing on the appellate issues.  See 38 C.F.R. § 20. 1304(c). 

The issues of entitlement to service connection for a right ankle disorder, and a traumatic brain injury have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a) (2) (West 2002).

The issue of entitlement to a rating in excess of 30 percent for left knee strain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  The preponderance of the evidence shows that the Veteran's right knee strain has not manifested in ankylosis, flexion limited to 30 degrees or less, or extension limited to -15 degrees or less during the current rating period.  Additionally, the preponderance of the evidence is against a finding of right knee subluxation or lateral instability.

2.  Prior to December 18, 2012, the preponderance of the evidence shows that the Veteran's left knee strain has not manifested in ankylosis, flexion limited to 30 degrees or less, or extension limited to -15 degrees or less.  Additionally, the preponderance of the evidence is against a finding of right knee subluxation or lateral instability prior to December 18, 2012.

3.  Prior to April 12, 2010, the preponderance of the evidence shows that the Veteran's lumbar spine disorder has not manifested in ankylosis, flexion not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, nor muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The evidence does not show that the Veteran suffered incapacitating episodes of a total duration of at least two weeks prior to December 18, 2012.

4.  From April 12, 2010, the preponderance of the evidence shows that the Veteran's lumbar spine disorder has not manifested in unfavorable ankylosis or incapacitating episodes have a total duration of at least six weeks during the past 12 months.

5.  The Veteran has associated bilateral lower extremity neurological abnormalities that are no more than mild in degree.

6.  The Veteran's PTSD manifested in occupational and social impairment with reduced reliability and productivity due panic attacks more than once a week, impaired impulse control (without periods of violence), impaired judgment, disturbances in mood and motivation, and difficulty in establishing and maintaining effective work and social relationships.  His PTSD did not manifest in near-continuous panic affecting the ability to function independently, impaired impulse control (with periods of violence), spatial disorientation, suicidal ideation, or the inability to establish and maintain effective relationships.  Additionally, the Veteran has been employed throughout the claims process.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for right knee strain have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5020, 5003, 5256-5262 (2012).

2.  Prior to December 18, 2012, the criteria for an initial rating in excess of 10 percent for left knee strain have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5020, 5003, 5256-5262.

3.  Prior to April 12, 2010, the criteria for an initial rating in excess of 10 percent for a lumbar spine disorder have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5243.

4.  From April 12, 2010, the criteria for a rating of 40 percent, and no higher, for a lumbar spine disorder have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5243.

5.  Since December 18, 2012, the criteria for a separate 10 percent rating (but no higher) for each (bilateral) lower extremity radiculopathy have been met.  38 U.S.C.A. §§ 1155 , 5103(a), 5103A; 38 C.F.R. §§ 3.102  , 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. 

6.  The criteria for an initial 50 percent rating, and no higher, for PTSD, have been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107; 38 C.F.R. §§ 3.102 , 3.159, 4.1, 4.126, 4.130, Diagnostic Code 9411.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA Duties to Notify and Assist

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

VCAA letters dated in June 2006, January 2007, November 2007, and January 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  The letters informed him of the types of evidence and information necessary to support his claims, and asked him to send any information or evidence to VA.  The letters also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c).  Service treatment records and post-service VA and private treatment records have been associated with the claims file or Virtual VA.  All identified and available treatment records have been secured.  The Board finds that VA has fulfilled its duty to assist in obtaining such records.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  In this case, the Veteran was provided VA examinations in August 2006 (general medical), March 2008 (knees, spine, psychiatric), June 2010 (knees, spine, psychiatric), and December 2012 (knees, spine, psychiatric) to determine the nature and severity of the Veteran's conditions.  The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims file and past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record.  Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disabilities under the appropriate diagnostic criteria.  The Board therefore concludes that the VA examination reports are adequate for evaluation purposes.  See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


Laws and Regulations-Increased Ratings

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the 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 their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  The analysis in this decision is therefore undertaken with consideration of the possibility that different additional ratings may be warranted for different time periods.

VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability.  The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use."  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant."  See 38 C.F.R. § 4.40.  Significantly, thoracolumbar degenerative joint and disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, and the general rating formula for rating spinal disorders applies with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Knees

The Veteran's right and left knee strains are currently rated under 38 C.F.R. § 4.71a, 5299-5020.  Hyphenated diagnostic codes are to be used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  38 C.F.R. §  4.27.  Diagnostic Code (DC) 5020 is for synovitis, and diseases under this rating are to be rated on limitation of motion of the affected parts, as arthritis, degenerative.  Degenerative arthritis, under DC 5003, must be established by x-ray findings, and is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each joint affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

A veteran who has degenerative arthritis and instability of the knee may receive separate ratings, provided that any separate rating must be based upon additional disability.  See VAOPGCPREC 23-97, citing Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 

Flexion of the leg limited to 60 degrees warrants a noncompensable evaluation, flexion limited to 45 degrees warrants a 10 percent evaluation, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating.  38 C.F.R. § 4.71a, DC 5260. 

Extension of the leg limited to 5 degrees warrants a noncompensable evaluation, extension limited to 10 degrees warrants a 10 percent evaluation, extension limited to15 degrees warrants a 20 percent evaluation, extension limited to 20 degrees warrants a 30 percent evaluation, extension limited to 30 degrees warrants a 40 percent evaluation, and extension limited to 45 degrees warrants a 50 percent evaluation.  38 C.F.R. § 4.71a, DC 5261.

VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004).  The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable.  Id. 

Other diagnostic codes applicable to knee and leg disorders include: DC 5256 provides ratings for ankylosis of the knee, which is not applicable in this case.  DC 5257 provides ratings of 10, 20 and 30 percent for slight, moderate, and severe recurrent subluxation or lateral instability, respectively.  DC 5258 provides a 20 percent rating for semilunar, dislocated cartilage with frequent episodes of "locking" pain and effusion into the joint.  

In August 2006, the Veteran was afforded a VA general medical examination in conjunction with his service connection claims.  He complained of bilateral knee pain since 2004.  At the time of the examination, he was able to walk continuously for 30-40 minutes; however, he avoided heavy lifting, running, and prolonged standing due to his knee and back pain.  He entered the examination room with regular steps, without a limp.  He was able to take off his shoes and socks.  He reported the use of prescription pain killers, taken on an as-needed basis.  His knee pain, bilaterally, was located around the knee cap.  He had no effusion, erythematous change, giving way or "locking" sensation.  He endorsed flare-ups of pain with prolonged standing, squatting and in cold weather.  He did not use assistive devices or a knee brace for ambulation.  He denied a history of surgery, dislocation, and inflammatory arthritis.  Range of motion testing revealed extension to zero degrees without pain, and flexion to 140 degrees with "some pain" at 140 degrees.  He had some tenderness to the anterior aspect of both knees.  Physical examination did not reveal instability, muscle atrophy, or muscle spasm.  The examiner noted that the Veteran had knee pain with motion, but that the pain did not limit the motion of the knee.  He was assessed with bilateral knee strain, with residual pain, with no limitation of motion and no instability.  X-rays of the bilateral knees were normal.

In December 2006, the Veteran sought VA treatment for his bilateral knee pain.  He stated his knee pain began two years prior, and that the pain increased with prolonged standing.  He had a full range of motion of both knees, and full strength of both lower extremities.  He had pain at deep varus stress testing bilaterally, but his knees were noted to be stable.  Valgus stress testing was within normal limits and not painful.  Lachman's, post-drawer and McMurrays tests were all normal.  He was provided contract hinged knee braces, and he indicated he felt as though they may help him manage his knee pain.

In May 2007, the Veteran contacted the Salisbury VA Medical Center (MC), and requested prescription cream for the pain.  An addendum noted the Veteran complained of limited range of motion, and that his leg would "give out."  The addendum did not indicate which leg would "give out," or if the complaint applied to both legs.

In March 2008, the Veteran was afforded a VA joints examination.  He reported flare-ups of knee pain with any strenuous activity.  He denied use of crutches, brace or cane.  He also denied a history of dislocation or inflammatory arthritis..  He reported he missed roughly a month of work as a security guard in the past year due to his knees and back.  He reported knee pain with walking for long periods of time at work.  On physical examination, his bilateral range of motion was from zero degrees to 120 degrees.  He had "pain with all these movements and stopped when the pain started."  He did not have fatigue, weakness or lack of endurance with range of motion testing.  His limitation was secondary to pain; however, repetitive motion testing did not increase the loss of range of motion.  The examiner noted that it would be mere speculation to estimate a range of motion loss during a flare-up of knee pain.  There was no evidence of edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal movement or guarding of movement.  He had a normal gait and good weight-bearing.  He was diagnosed with strained knees.

In January 2009, the Veteran sought VA treatment for bilateral knee pain.  He indicated his pain was greater in his right knee than in his left.  X-rays and an MRI of his knees have all been interpreted as normal.  He had increased tenderness to palpation of the knee joints.   His gait was normal, and he had normal motor strength of the lower extremities.  He was able to heel and toe walk, and able to balance on one foot.  He was assessed with "joint pain due to subacute chronic capsulitis/tenosynovitis associated with early osteoarthritis versus uric acid, versus other inflammatory cause."

In August 2009, the Veteran sought treatment for generalized weakness.  He was nonspecific regarding his weakness, but had no muscle pain.  He endorsed a slight tingling in his shins which was worse with running, but not as painful as shin splints.  He reported running three times a week, but that he had to stop due to back pain and not leg pain.  He denied his legs giving out, he denied falls.  He "also reports knee pain."  X-rays of his lower extremities were noted to be normal.  On physical examination, he had a normal gait and normal lower extremity strength.  

On his September 2009 substantive appeal, the Veteran stated that his knees were "much worse" since his last VA examination, and that he was in "constant pain."  He also stated he had weakness in his knees.  He stated he felt that he should be rated 20 percent disabling for each knee.

In April 2010, the Veteran complained of thoracic spine and bilateral knee pain.  He had a normal gait.

In June 2010, the Veteran was afforded another VA joints examination.  The Veteran described pain onset in service during running or ruck marches.  He noted his pain was stable since onset.  He endorsed bilateral giving way, pain, and stiffness.  He denied locking episodes and instability.  He was unable to walk more than a few yards due to pain.  He had an antalgic gait, but no evidence of abnormal weight bearing.  On physical examination, he did not have crepitation, clicks, snaps, grinding, or instability of either knee.  He also did not have patellar or meniscus abnormalities.  His left knee range of motion was from zero to 100 degrees.  His right knee range of motion was from zero to 90 degrees.  There was no objective evidence of pain following repetitive motion.  He also did not have additional limitation of motion after repetitive range of motion testing.  He did not have joint ankylosis.  X-rays from 2007 and 2006 were noted to show normal evaluation of the knees.  The Veteran reported missing one week of work during the prior 12 months due to his knee symptoms.  He had increased pain with standing, and thus he had increased absenteeism from work due to his knee pain.

Private treatment records from March 2012 noted that the Veteran denied back and joint pain.  He had a normal gait, and he did not have joint erythema, swelling or warmth.  

In December 2012, the Veteran was afforded a fee-basis VA examination of his knees.  At the time of the examination, the Veteran was using bilateral knee braces.  He reported that his left knee swells and locks, but does not give-way.  He reported that his right knee does not swell, lock or give-way.  He did not have a history of subluxation or dislocation.  His pain worsened with prolonged standing and walking.  He reported flare-ups which prevented him from "being mobile."  Physical examination revealed he had right knee range of motion from zero to 60 degrees.  His flexion was decreased to 50 degrees with repetitive testing.  He had knee and back pain at the end of range of motion testing.  His left knee range of motion was from zero to 15 degrees.  His flexion was decreased to 10 degrees with repetitive testing.  He had no additional change in range of motion with repetitive testing.  He had tenderness to palpation over the medial joint lines and patellar tendons.  He was unable to perform posterior drawer tests due to his limited range of motion.  He had right side negative Lachman, medial and lateral instability tests.  He was unable to do the Lachman test on his left side due to limited range of motion, but he had negative medial and lateral instability.  He had difficulty relaxing bilateral for joint stability testing.  He reported missing approximately 20 days of work due to knee pain in the past year.  The examiner noted that the Veteran's knee severity was "mild."

The claims file contains several statements from coworker and managers regarding the Veteran's psychiatric symptoms causing him to miss work or to have difficulty interacting with his coworkers.  One family medical leave act form contained in the record seeks leave due to psychiatric symptoms.  A private medical record from March 2012 noted that he sought medical leave due to flu symptoms.  In April 2012, the Veteran's supervisor provided a statement that he missed approximately 60 days of work in the prior year due to his psychiatric symptoms, but that when he works alone he "does a great job."  

The evidence does not show that the Veteran's right knee manifested in symptoms of ankylosis, recurrent subluxation or lateral instability, semilunar or dislocated cartilage with frequent episodes of "locking," pain and effusion of the joint, or nonunion or malunion of the tibia or fibula.  Thus, under 38 C.F.R. § 4.71a DCs 5256, 5257, 5258 and 5262 his right knee has not met the requirements for a rating in excess of 10 percent.  Prior to the December 2012 VA examination, the Veteran's right knee range of motion was from zero degrees extension (full extension) to 90 degrees of flexion, at worst.  Thus, prior to the December 2012 VA examination, his right knee range of motion did not warrant a compensable rating under DCs 5260 or 5261.  Additionally, as x-rays and an MRI did not establish a diagnosis of arthritis, he did not warrant a 10 percent rating under DC 5020-5003 either.  During the December 2012 VA examination his right knee flexion was limited to 50 degrees with pain on repeated testing.  A finding of 50 degrees of flexion is still a noncompensable rating under DC 5260; however, the Veteran was only five degrees away from the criteria for a 10 percent rating (flexion limited to 45 degrees).  While the Veteran has made complaints of "giving way" on occasion, he has also denied a sensation of "giving way."  Objective testing has not shown right knee instability.  Thus, the Veteran is generously in receipt of a 10 percent rating for his right knee throughout the claim appeal period.  The evidence does not establish that his right knee symptoms warrant a 10 percent rating under DCs 5003, or 5256-5262.  The Board will not disturb the 10 percent rating currently assigned.  An increased rating is not warranted for right knee strain.

Prior to December 18, 2012, the evidence does not show that the Veteran's left knee manifested in symptoms of ankylosis, recurrent subluxation or lateral instability, semilunar or dislocated cartilage with frequent episodes of "locking," pain and effusion of the joint, or nonunion or malunion of the tibia or fibula.  Thus, under 38 C.F.R. § 4.71a DCs 5256, 5257, 5258 and 5262 his left knee has not met the requirements for a rating in excess of 10 percent.  Regarding range of motion testing, his extension was always to zero (full extension), and his flexion was limited to 100 degrees, at worst, prior to December 2012.  As with the right knee, the Veteran's left knee symptoms did not meet the criteria for a 10 percent rating under DCs 5003, or 5256 to 5262 prior to December 2012.  His flexion was not limited to 45 degrees or less, x-rays established that his left knee was normal, and testing did not reveal instability of the left knee.  Thus prior to December 18, 2012, the Veteran did not meet the criteria for a rating of 10 percent.  As the 10 percent was generously provided by the RO, the Board will not disturb that rating.  The appropriate rating for the Veteran's left knee from December 18, 2012 is addressed in the REMAND section of this decision.

In adjudicating a claim, the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Board acknowledges that the Veteran is competent to give evidence about what he experiences.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.)

Here, the Board does not find the Veteran's complaints of the severity and symptoms of his bilateral knee pain to be entirely credible.  While the Veteran is competent to complain of knee pain, instability, weakness, giving way, etc. his conflicting reports to treatment providers raises concern as to the credibility of his statements.  He would indicate to VA examiners that his knee pain made him unable to walk or stand for prolonged periods of time, but he later reported he was running three times a week.  He denied joint pain to a private care provider.  While he had an antalgic gait during a June 2010 VA examination, he had a normal gait on subsequent treatment.  Additionally, while he reported missing up to 20 days of work due to his knees, all lay statements from coworkers, friends, and managers indicated that he frequently missed work due to his psychiatric symptoms.  The two pieces of medical evidence regarding his absenteeism from work sited the flu and his psychiatric symptoms as the cause.

Spine

The Veteran's lumbar spine disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243.  DC 5243 section utilizes either the general rating formula for diseases and injuries of the spine or the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever results in a higher rating.

Under the general rating formula, a 20 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 40 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. 

Note (1) to this regulation directs that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code.

Intervertebral disc syndrome with incapacitating episodes is evaluated as follows: having a total duration of at least 6 weeks in the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); and having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent).  38 C.F.R. § 4.71a. 

Note (1) to this regulation provides that for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to an intervertebral disc syndrome intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

The Veteran's service treatment records show a significant history of low back pain and treatment.  An MRI revealed a mild chronic anterior wedge compression deformity of the L1 vertebral body.  In November 2005, the Veteran reported ongoing pain in his low back, posterior thighs, and a rare "numbness" to his legs.  In December 2005, he underwent a discogram which revealed tears at L3-4, L4-5 and L5-S1.  He complained of increased pain following the discogram procedure.  A December 2005 CT scan revealed mild degenerative disc disease.  By March 2006, he was being followed by a private pain management service.

In August 2006, the Veteran was afforded a VA general medical examination.  He had a normal gait, and was able to take his shoes and socks off for the examination.  He reported wearing a lumbar brace since 2006; however, he was not wearing it at the time of the examination.  He reported ongoing back pain since 2002, particularly at the L4 paraspinal area.  This pain would occasionally radiate to the buttocks and down to the thighs bilaterally.  He also experienced stiffness.  Flare-ups of back pain occur with lifting and prolonged standing.  He reported he avoided running and heavy lifting due to his back pain.  On physical examination, his active and passive range of motion was from zero to 75 degrees of flexion, and zero to 25 degrees of flexion.  Bilateral lateral flexion was from zero to 30 degrees, and bilateral lateral rotation was from zero to 30 degrees.  His flexion was limited to 75 degrees due to pain and muscle spasm.  Neurological examination noted normal sensation, motor examination, and reflexes of the lower extremities.  His "Lasegue sign was negative, indicating no lumbar radiculopathy."  Examination of the spine did not reveal deformity.  In the prior 12 months, the Veteran had no episodes of incapacitation.  In July 2006, x-rays of the Veteran's lumbar spine were interpreted as normal.  

In March 2008, the Veteran was afforded a VA spine examination.  He reported pain at the center of his lumbar spine, with radiation into the upper lumbar area.  He reported flare-ups of symptoms with any strenuous activity.  He reported missing one month of work in the past year due to his knees and back.  He was able to complete activities of daily living independently.  On physical examination, he had forward flexion from zero to 90 degrees, extension from zero to 10 degrees, bilateral lateral flexion to 25 degrees, and bilateral rotation to 25 degrees.  This is a combine range of motion of 200 degrees.  The examiner noted the Veteran had pain during range of motion testing, and that he stopped when the pain began.  He did not experience fatigue, weakness, or lack of endurance.  His limitation of motion was due to pain, and repetitive motion did not increase the loss of range of motion.  The examiner noted it would be mere speculation to estimate the loss of range of motion during a flare-up.  He did not experience muscle spasm during this examination.  He did not have postural abnormalities or fixed deformities.  His straight leg raising was negative, his deep tendon reflexes were equal, and he had normal sensation and strength upon testing.

In May 2008, the Veteran sought treatment for his back pain, which he stated had recently increased to the extent that he "had three anxiety attacks last night."  The remainder of the Veteran's treatment focused on his psychiatric symptoms.  In September 2008, he indicated his only physical complaint was back pain, but that his pain was a level zero out of ten that day.  

A January 2009 spine x-ray was interpreted as normal.  Also in January 2009, the Veteran was referred for a chiropractic consultation regarding his low back pain.  Range of motion of the lumbosacral spine was noted to be "within normal limits" with some back muscle tightness and soreness at the end ranges of motion.  He had some hyperalgesia to pinprick on the left distal legs and feet.  "Otherwise pinprick, touch and position sense appeared grossly normal in the" lower extremities.  His gait was normal, and he was able to toe and heel walk.

On his August 2009 substantive appeal, the Veteran complained that his lumbar spine symptoms had worsened since his last VA examination.  In an August 2009 VA treatment record, the Veteran had function restriction to motion with flexion, extension, lateral bending and rotation.  His gait was normal, and his straight leg raise test was positive on the left, sitting.  He had paraspinal muscle spasm.  His sensation was intact to light touch throughout.  He complained of a slight tingling of his shins with running.  He was running three times a week, but had to stop due to back pain.

In December 2009, the Veteran sought VA treatment for back pain following a motor vehicle accident.  The physician noted that the Veteran was able to bend over and  undo his shoe laces for the examination easily.  He had no restriction of movement of his thoracic or lumbar spine, and he had not spinal or paraspinal tenderness of his thoracic or lumbar spine.  He was diagnosed with a mild spinal strain.  

In April 2010, the Veteran was referred to a chiropractic consultation.  He complained of sharp, throbbing, pain with numbness, burning, and tingling which interfered with his activities of daily living.  He felt that his pain was exacerbated by any and all movement and activities.  He indicated that his pain medication could no longer relieve his pain.  A neurological examination was normal except for left sided light touch at the L4 vertebral, which was abnormal.  Range of motion was estimated to be to 10 degrees of flexion and 15 degrees of extension, with pain as the limiting factor.  He had a normal gait.  In May 2010, the Veteran was noted to have paraspinal lumbar spine muscle spasm.

In June 2010, the Veteran was afforded a VA spine examination.  He indicated his spine had progressively worsened since his in-service injury.  He denied numbness, paresthesias, leg or foot weakness, and other neurological complications.  He endorsed fatigue, decreased motion, stiffness, and pain in the center of his lumbar spine.  His pain was constant, daily, and severe.  His pain radiated to his legs as a sharp pain.  Regarding incapacitating episodes, the Veteran reported that in the prior 12 months he had missed roughly 12 weeks of work due to his back.  He indicated that each incapacitating episode lasted two to three days.  He stated he was unable to walk more than a few yards due to his symptoms.  On physical examination, his gait and posture were normal.  He had not abnormal spinal curvatures and no objective abnormalities, to include spasm.  His muscle tone, reflex examination, and sensory examination were normal throughout.  The Veteran refused to attempt range of motion testing because he feared pain.  The examiner noted that there was no objective pain observed during the examination.  Strangely, under "time lost from occupation" the examiner noted "1 week" where he initially indicated the Veteran reported "12 weeks."  It is unclear which loss of time is correctly recorded.  The examiner diagnosed lumbosacral strain, with "significant" effect on his usual occupation, due to "increased absenteeism."  Based on the statement of "significant" effect, the Board will assume the Veteran reported "12 weeks" of lost time from work in the prior year.  The Veteran reported back pain at his job due to prolonged standing.  

A private treatment record from October 2012 noted that the Veteran had a normal range of motion of his spine.  

In December 2012, the Veteran was afforded another VA spine examination.  He reported using a back brace and TENS unit to alleviate symptoms.  He reported flare-ups with bending.  He also reported difficulty with lower extremity dressing and bathing.  On physical examination, his forward flexion was to 40 degrees, and was further diminished to 20 degrees with repetitive testing.  Straight leg raise testing was negative bilaterally, and his sensation was intact to light touch.  He had "symptoms which may be secondary to radiculopathy and he has numbness and tingling to his hamstrings, calves and feet.  His involvement would be the L2-3 nerve roots.  Severity rating is mild."  He had no incapacitating episodes.  The function impact on work was that he has difficulty with prolonged standing and has missed approximately 15 days of work secondary to back pain in the prior year.

The Board finds that staged ratings are appropriate regarding the Veteran's lumbar spine disorder.  He complained of increased symptoms between his 2008 and 2010 examination.  The medical evidence first reveals increased symptoms on April 12, 2010, when his estimated range of motion included flexion to only 10 degrees.  Prior to April 12, 2010, the evidence did not include medical evidence of forward flexion to less than 60 degrees, or a combined range of motion of less than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour.  While the evidence revealed muscle spasm, the Veteran's gait and spinal contour remained normal.  Notably, between the 2008 examination where is forward flexion was to 90 degrees and April 2010, when his forward flexion was limited to 10 degrees, the Veteran was involved in a motor vehicle accident (in November 2009).  Thus under the general rating formula for disease and injures of the spine, the Veteran's lumbar spine did not warrant a rating in excess of 10 percent prior to April 12, 2010.

Regarding the formula for rating intervertebral disc syndrome based on incapacitating episodes, the Board notes the Veteran's reports of missing work due to his lumbar spine, and his 2010 report of missing 12 weeks of work (although possibly one week, as there is an inconsistency in the VA examination report).  The Board notes, however, that the inconsistency does not affect the determination that incapacitating episodes did not occur for VA purposes.  While the Veteran reported missing work due to his lumbar spine, "incapacitating episodes" are defined as symptoms that require bedrest prescribed by a physician and treatment by a physician.  The medical records do not show that the Veteran was ever put on physician-prescribed bedrest, or that he was even frequently treated for his lumbar spine in 2009-2010.  Thus, under either formula, the evidence of record does not support a rating in excess of 10 percent for lumbar spine disorder prior to April 2010.

On April 2010, the VA physician estimated that the Veteran's forward flexion was limited to 10 degrees.  While this is an estimated range of motion, it is significantly less than the 30 degrees or less required for a 40 percent rating under the general formula.  Additionally, while the Veteran refused to participate in the June 2010 VA examination, during the December 2012 VA examination his forward flexion was limited to 20 degrees with repetitive testing.  As such, the Board will resolve reasonable doubt in the Veteran's favor regarding the accuracy of the estimated range of motion, and grant a 40 percent rating for his lumbar spine beginning April 12, 2010.  

Lastly, an April 2010 VA treatment note indicated that the Veteran's sensation to light touch at the left side L4 was not normal.  The physician, however, did not diagnose a neurological disorder at that time.  During the December 2012 VA examination, the physician indicated that the Veteran had mild L2-3 nerve root radiculopathy bilaterally.  As noted above, the spine regulations allow for any associated objective neurologic abnormalities to be evaluated separately under an appropriate diagnostic code.  Under DC 8520, an 80 percent rating is available for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  Lesser ratings are available for incomplete paralysis.  Where incomplete paralysis is severe, with marked muscular atrophy, a 60 percent rating is warranted.  Where incomplete paralysis is moderately severe, a 40 percent rating is warranted.  Where incomplete paralysis is moderate, a 20 percent rating is warranted.  And, for mild incomplete paralysis of the sciatic nerve, a 10 percent rating is warranted.  Therefore, as the evidence demonstrates that the disability is productive of at least some symptomatology, and as the term "mild" is not defined in the rating schedule, the Board finds that the Veteran's overall impairment is at least mild in degree; and, as such, a 10 percent rating is in order for each lower extremity.  As the Veteran was initially assessed with bilateral radiculopathy during the December 2012 examination, the Veteran should be provided separate 10 percent ratings for mild incomplete paralysis of the sciatic nerve from December 18, 2012.  There is no indication in the record of any other objective neurological complications of the Veteran's lumbar spine. 

Regarding the Veteran's credibility, the medical evidence again contains some contradictory reports of symptoms.  Indeed, a private physician indicated the Veteran had a normal range of motion of his spine in October 2012, and in December 2009 a VA physician specifically indicated that the Veteran was able to bend over and untie his shoes and take off his socks with ease.  There has also been notations of no objective evidence of pain.  While the Board finds the Veteran's reports of symptoms and severity of symptoms questionable, the Board will generously provide increased ratings based on the beneficial medical evidence of record.  However, the Board does not find the Veteran's statements regarding the number of days and weeks he missed from work due to his spine to be credible as the evidence indicates that the majority of the time he missed from work was due to psychiatric symptoms.

PTSD

The symptoms recited in the criteria in the rating schedule for evaluating 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."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443. 

The applicable rating criteria for evaluating post traumatic stress disorder provide for a 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss.  See 38 C.F.R. § 4.130, Diagnostic Code 9411. 

A 50 percent disability 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-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.   

A 70 percent rating is assigned 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 intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.   

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

A Global Assessment of Functioning rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the American Psychiatric Association  's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV).  Global assessment of functioning 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).  See also 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. 

In November 2006, the Veteran filed a claim of entitlement to service connection for a psychiatric disorder.  In February 2007, he was afforded a VA examination.  He reported disliking loud noises as they caused him to have "panic attacks."  He described these as feeling dizzy, lightheaded, his heart pounds and he has shortness of breath.  He indicated his panic attacks occur infrequently, but that he has general anxiety, a short temper, and sporadic sleep.  At the time of the examination he was working part time and going to school full time.  He reported having few friends and limited recreational and leisure pursuits.  On mental status evaluation he was polite, cooperative, well-groomed, and his speech was unremarkable.  He was tense, but his affect was appropriate.  He denied homicidal or suicidal ideation or intent.  He did not have delusions, hallucinations, or suspiciousness.  His memory was noted to be "good."  His insight and judgment were "adequate."  He was diagnosed with anxiety disorder, and assigned a GAF of 55.

In a March 2007 rating decision, the Veteran was granted service connection for an anxiety disorder, and assigned an initial 30 percent rating.  In a September 2007 statement, he indicated that his symptoms were "much worse than rated," and that he suffered from "chronic panic and anxiety attacks."  He also endorsed sleep disturbance.

In July 2007, the Veteran sought mental health treatment and described experiencing anxiety at his job, and nightmares.  He reported he had friends that were still in the service, and that some were back in Iraq.  He reported emailing with these friends.  He was noted to work the second shift, and that he had difficulty sleeping after work.  He was working as a security guard and had plans to resume school.  He was assigned a GAF of 68.

In November 2007, the Veteran reported his girlfriend broke up with him due to his problems controlling his anger.  

In March 2008, the Veteran was afforded a VA psychiatric examination.  He stated that since his last examination he had experienced increased levels of anxiety and depression, with continued panic attacks.  He also reported difficulty sleeping more than 4 hours in a 24-hour period.  He indicated his panic attacks occur about two to four times a week on average.  "He continues to work part-time although he is showing reduced reliability and productivity with significant losses from his work time secondary to his psychiatric issues."  He is not attending school because of his decreased capacity to do so both from an interpersonal and academic basis.  He indicated he had few friends and tended to isolate himself.  On mental status evaluation, he was cooperative, and without hallucinations, delusions, obsessions, compulsions or phobias.  His affect was constricted and his voice was quiet.  Insight and judgment were noted to be superficial but adequate.  He endorsed trauma-related flashbacks and nightmares occurring several times per week.   He had a decreased interest in hobbies and social activities, feelings of a foreshortened life, difficulty sleeping, irritability, anger outbursts, and difficulty concentrating.  He was diagnosed with PTSD, and assigned a GAF of 45.

A June 2008 VA mental health treatment record noted that the Veteran had recently changed his work site, and that this change was "working well so far for him."  And that he enjoyed working with the Postal Service because the "understand veterans."  His work shift was from 3 p.m. to 2:30 a.m., and he stated that he was unable to fall asleep until around 5 a.m., with nightmares disturbing his sleep three to four times per week.  Socially, he was frequently alone.  His roommate had recently moved out, and he reported he had recently ended his relationship with his girlfriend of six years.  He did report going to clubs on the rare occasion, and having limited contact with his family.  He continued to report anxiety attacks, and his embarrassment regarding his anxiety attacks.  Therefore, he would limit his social interactions.  He reported he does not have thoughts, plans or  intent to harm himself or others.  He was unable to specify how frequently his panic attacks occur.

In September 2008, the Veteran sought mental health care treatment for a "black out" episode.  He reported that he got in his car after class at noon, and at 3:15 p.m. a construction worker knocked on his car window to check on him because he had been sitting in his car for so long.  He indicated that construction was occurring nearby, and that loud noises can trigger his panic attacks.  The possibility of low blood sugar as a cause was also brought up, but no definitive determination was made.

In October 2008, the Veteran stated that he sometimes has panic attacks up to three times a day.  His sleep was disturbed and it affected his concentration.  He reported he had to change jobs from being a mail carrier to an office position due to his stress.  In a November 2008 statement, he took offense to the notations of the June 2008 VA care provider.  He stated that he does not enjoy his work, and that he did not change "work sites" but that he changed positions due to his panic attacks.

The record includes a November 2008 record of the Veteran telling a VA physician that he received a phone call from the Department of Defense (DOD) which advised him to have a traumatic brain injury (TBI) consultation.  The VA physician found this suspicious because the Veteran was discharged from service in 2006, and that the DOD does not call but provides letters regarding TBI evaluations.  "Remote data on DOD site did not document any phone contact with the Veteran."  The physician noted that in prior VA examinations the Veteran did not indicate he had any personal blast exposure or head trauma.  "One might question the sudden need for a TBI evaluation in this gentleman, especially in the absence of any prior suggestions of trauma, as well as the mode ('phone call from DOD')."  The Board notes that in July 2007, the Veteran denied a history of TBI in service.

In December 2008, the Veteran's supervisor at work provided a statement that the Veteran had complained "numerous times about his inability to work around others."  His supervisor, also a veteran, attempted to accommodate his needs as much as possible.  The supervisor noted that he supervised the Veteran "for just under a year and have noticed his condition is deteriorating."

In March 2009, a private psychologist (M.P.) provided a summary for the VA.  M.P. noted he had been treating the Veteran for the "past few months."  The Veteran's symptoms included: disturbing recollections, distressing dreams, feelings of reliving traumatic experiences via flashbacks, psychological and physical distress when exposed to things that remind him of the traumatic events, avoidance of people and places that remind him of his experiences, a loss of enthusiasm, feelings of detachment from others, feeling emotionally numb, inadequate sleep, poor concentration, chronic irritability, angry outburst, feeling "on edge," and an absence of dreams for his future.  M.P. noted that these symptoms have taken a toll on his relationships and work because he had "completely withdrawn from family members and friends."  According to the Veteran's responses on a questionnaire entitled "Work Impairment Rating Scales," he had significant impairments related to social interaction, memory, persistence and concentration.  M.P. diagnosed PTSD and panic disorder, and assigned a GAF of 32.

In early July 2009, the Veteran sought treatment after waking up "feeling panicky" and suffering some panic attacks at school.  He also endorsed combat-related nightmares.  

In July 2009, the Veteran filed a Department of Labor Worker's Compensation claim.  A Dr. L.W. filled out the physician's report, and indicated that the Veteran had a discussion with his supervisor which made him "extremely anxious."  Dr. L. W. indicated that the Veteran's anxiety reaction was caused by his employment, and that he was treated with anti-anxiety medication.  She noted that there were no "permanent effects expected as a result of this injury" (form language).

Two days subsequent to the day of his Worker's Compensation physician's report filing, the Veteran requested that his VA treating physician, A.F., provide him with an excuse from work for the week.  He stated that he felt "harassed" at work due to his Worker's compensation claim.  On mental status evaluation, the veteran was tense and guarded, but his speech was clear and measured.  He was oriented and his thought process was unremarkable.  He did not express suicidal or homicidal ideations.  His judgment and insight were only fair.  Dr. A.F. provided a letter that stated the Veteran was having an exacerbation of his symptoms and needed to stay home from work for a week while his medications were adjusted.

On his September 2009 substantive appeal, the Veteran stated that he felt that his psychiatric symptoms should be rated as 50 percent disabling.  He stated that his anxiety and panic attacks are affecting his employment to the point that his job was "in jeopardy."

An August 2009 VA record indicated the Veteran had lost his forms for the Family Medical Leave Act and needed copies.  He indicated that he hated where he worked, and that it was more stressful there than in Iraq.  He stated he was considering looking for another job or going back to school.  He indicated his nightmares and panic attacks were "more frequent," but he also stated that his medications were helping.  In September 2009, the Veteran again sought to have Dr. A.F. provide him with an excuse from work due to feeling "harassed and stressed" secondary to filing an equal employment opportunity complaint.  On mental status examination the Veteran was cooperative, oriented, and had good eye contact.  His speech was normal, his mood and affect were unremarkable, and he denied suicidal or homicidal ideation.  Dr. A.F. provided letters requesting that the Veteran be excused from work on two days due to exacerbation of his symptoms, and so he could be seen for "crisis intervention/medication evaluation."

On January 4, 2010, the Veteran sought an excuse from work on December 31, 2009, January 1, 2010 and January 2, 2010 due to being incapacitated due to "work related stress."  In March 2010, he reported feeling very irritable, easily angered, and not sleeping well.  He thought he might lose his job, and reported that "they are not supportive of vets at all there...they make fun of you and put you down."  He was noted to be cooperative but tense.  In May 2010, the Veteran stated that a professor was giving him a "hard time," that he had an increase in his symptoms and he had missed a test.  He requested a letter stating he "was having problems and had his medications changed."  

In June 2010, the Veteran was afforded another VA PTSD examination.  He stated he has increased anxiety, nightmares and sleep disturbance since 2005.  He reported nightmares five times a week, difficulty sleeping, daily intrusive thoughts, constant anxiety, and irritability.  He avoided crowds and stated he was easily startled.  He also stated that he was sometimes sad, and he cried once or twice a week.  He indicated his panic attacks occur daily and last for ten minutes, and that they are aggravated by crowds or being upset.  On mental status examination, he was cooperative and appropriately dressed.  He was soft spoken and his mood was tense but friendly.  He had no homicidal or suicidal ideation, no impairment of thought processes or communication, and no delusions or hallucinations.  His memory, insight and judgment appeared adequate.  He was diagnosed with PTSD and a panic disorder and was assigned a GAF of 53.

The claims file contains several lay statements from the Veteran's friends.  In April 2012, fellow marine C.W. provided a statement that he had been friends with the Veteran for ten years, to include prior to the Veteran's service in Iraq.  He stated that since returning from Iraq, the Veteran is short-tempered and a heavy drinker.  He stated that the Veteran talked to him about his panic attacks, and that he had witnessed panic attacks whenever he comes to visit the Veteran.  

A former coworker, E.B., provided a statement that it was very difficult to work with the Veteran.  He stated that over the years they worked together, the Veteran's ability to interact with people lessened and he "threatened to hurt fellow coworkers."  He was "never a team player and had been a major distraction."  The coworker noted that they were never sure if the Veteran would report to work or use his Family Medical Leave Act to stay home due to his PTSD.  He indicated that coworkers would provoke and make fun of the Veteran  until he had outbursts at work.  He indicated the Veteran's hygiene was poor and he had body odor during work.  He also noted the Veteran had panic attacks at work.  

Another fellow marine, M.D., indicated the Veteran's anxiety and drinking had worsened since service, and that the increase was apparent when he spent the weekend with the Veteran in February 2012.  

Lastly, a supervisor, W.W., provided a statement that the Veteran had numerous unscheduled absences because "of what he describes as feeling depressed.  Over the past year [the Veteran] has missed approximately 60 days due to this condition.  [He] does a great job when he works alone but in this environment it is becoming increasingly difficult to find assignments that allow him to perform duties basically by himself."

In August 2012, the Board remanded the claims for additional evidence and VA examinations.  The Board noted that a letter should be sent to the Veteran requesting that he permit the VA to obtain treatment records from his private psychologist (M.P.).  In September 2012, the RO requested that the Veteran provide a release for records from Dr. M.P.; which the Veteran provided.  In response to the VA's request for all treatment records for the Veteran, Dr. M.P. singularly sent the same March 2012 letter, and noted it was the most recent information he had on file.  The Veteran also provided releases for Progressive Medical Associates.

Private treatment records from Progressive Medical Associates include a January 2012 record of treatment for feeling achy and feverish after a strenuous workout.  He reported panic attacks every few days and indicated he was on two psychiatric medications, however, the physician noted that he was not on any benzodiazepines for his panic attacks.  He denied depression, anxiety, panic attacks, irritability or a significant increase in stress at the time of treatment.  He continued to be employed as a mail handler, and he "just finished his BS/BA in business management...and he is going to try to go back for his master's degree."  He indicated he drinks three drinks a month.  

In March 2012, the Veteran reported that his panic disorder is "much better as well as his PTSD" on the Abilify that he was given during his last visit.  He reported trying various treatments, but felt that this one has benefitted him the most, although he felt an increased dose would be beneficial.  He was noted to have been treated for the flu March 2012, and given a work note that he would be out for ten days; however, he then developed a sinus infection.  He brought in Family Medical Leave Act forms for his recent illness.  In October 2012, he sought treatment for a head injury after a metal lid struck his right lateral head at work.

In December 2012, the Veteran was afforded another VA psychiatric examination.  Regarding his educational background the Veteran reported receiving his associate's degree in 2009, but did not report his Bachelor's degree which he recently received according to private treatment records.  He also stated he worked full time beginning in December 2011.  He reported difficulties with his employment due to difficulty concentrating, anxiety and difficulty relating to people.  He reported he fell off a truck in 2003 and hit his head, without losing consciousness.  He also reported being in a vehicle which was hit by an improvised explosive device in 2005, and that he was stunned but did not lose consciousness.  He did not report his recent head injury in October.

The Veteran reported feeling anxious every day, and having panic attacks nearly every day.  He also reported irritability and difficulty sleeping most days.  He indicated that he rents a home, and his cousin lives with him.  He is not married, has no children, and reports that he has no friends aside from his cousin.  On mental status examination, the Veteran's speech was normal, his affect was blunt, and his mood anxious.  His insight was within normal limits and his judgment was fair.  He indicated that he drinks a fifth of liquor a week.  He stated he had thoughts of fighting with people and he has been in verbal confrontations, but no physical altercations, and he had not wanted to kill anyone.  He indicated he was independent in his activities of daily living, but that his cousin helped him with bills, remembering his appointments, and transportation.  He had no suicidal thoughts.  He was diagnosed with PTSD and alcohol abuse, and assigned a GAF of 53.  The Veteran reported he had missed nearly 100 days of work over the past year due to a combination of mental and physical problems.  The examiner noted that the Veteran had a moderate level of impairment in his life due to his psychiatric disorders.  The Veteran reported he had "no social life and isolates" himself.  Lastly, the examiner noted that it was not possible to interpret any scientific certainty the presence of cognitive residuals of TBI due to invalidity of test performance."

In February 2013, the Veteran's VA physician, M.F., provided a Family Medical Leave Act physician's report requested three days off for treatment of anxiety.  She noted he was having flare-ups of PTSD symptoms from one to four times per week.

Again, as with his claims for increased ratings for his knees and spine, the Board notes that the Veteran is questionably credible.  Private treatment records indicated an improvement in symptoms, but the Veteran reported increased symptoms to the VA.  The Veteran stated on numerous occasions that he did not have friends, but he was able to have several friends provide statements on his behalf, including two who had indicated they have visited with the Veteran.  He reported limited drinking to his private care providers, but he and his friends indicated he had excessive alcohol consumption to the VA.  He reported he had no plans for the future to the VA, but reported to his private treatment providers that he wants to get a new job and to go on to earn a master's degree.  Indeed, during his December 2012 VA examination he did not report an October 2012 head injury or that he had earned a Bachelor's degree sometime around January 2012.  

Treatment records include complaints of nightmares, anxiety, panic attacks, hypervigilence, isolation tendencies, and sleep disturbance from 2008 to 2012.  The majority of the treatment records from the VA are in regards to receiving letters to miss work or anxiety experienced during work.  As these symptoms are consistently complained of, and physicians have objectively noted anxious mood, the Board finds that the complaints of these symptoms are credible.  Additionally, from the Veteran's coworker's statement he has outbursts and irritability at work.  It also appears that he is intentionally provoked by coworkers, and that his reactions, though inappropriate, are reactionary.

Based on the evidence of record, the Board believes that the Veteran's symptoms more closely approximate the criteria for a 50 percent rating.  Under the 50 percent criteria, the Veteran has reduced reliability and productivity due to such symptoms as panic attacks more than once a week, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships.  The Board recognizes that the Veteran has some of the manifestations contemplated by a 70 percent rating in that the Veteran has anger outbursts, and a coworker indicated he occasionally neglects his personal hygiene.  However, the Veteran's panic attacks have been described as occurring several times a week and, in a statement to VA, occurring up to three times a day.  This does not rise to the level of "near-continuous" panic attacks.  And private records from 2012 indicate that the Veteran's panic attacks decreased with new medication.  Additionally, the Veteran has not experienced suicidal idea, obsessional rituals, illogical or irrelevant speech, near-continuous depression affecting the ability to function independently, appropriately or effectively, spatial disorientation, or the inability to establish and maintain effective relationships.  His angry outbursts have never included periods of violence, and have been verbal only.  And while coworker provided a friend statement that the Veteran neglects personal hygiene, during all of his private and VA treatment he has been appropriately groomed.  Lastly, while he has difficulty establishing and maintain effective work and social relationships, he is not unable to establish and maintain relationships.  This is evidenced by his friends' statements, and his ability to work full time while earning a bachelor's degree.  Thus, the Veteran's symptoms more closely approximate the criteria for a 50 percent rating, particularly in light of the Veteran's questionable credibility in reporting the severity of his symptoms.

Global assessment of functioning scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the rating issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).  The Veteran's GAF scores throughout the record were 32, 45, 53, 53, 55 and 68.  The GAF score of 68 indicated mild symptoms, and was provided early in his claims in 2007.  GAF scores of 53 and 55 indicated moderate symptoms, and were provided during his VA examinations in 2007, 2010 and 2012.  A GAF score of 45 indicated serious symptoms and was provided during the 2008 VA examination, during which time the Veteran reported panic attacks up to four times a week, and having dropped out of his college courses for a semester due to problems with concentration, and inability to feel comfortable in social situations.  The private GAF score of 32, indicates some impairment in reality testing or communication (speech at times illogical, obscure or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking or mood.  The private treatment provider appears to have only met with the Veteran for the March 2009 evaluation, and the assessment is based upon the Veteran's assessment that he has no dreams of a future, he has completely withdrawn from his friends and family, and that he felt he had significant concentration, social interaction, memory and persistence problems at work.  Unfortunately, other records in the claims file show that the Veteran lives with his cousin, has a few friends, does "great" work when he does not have to work with others, and was able to complete a Bachelor's degree while working full time.  As such, the Board does not confer much weight to the GAF score of 32, as the symptom severity described by the Veteran is contradicted by other treatment records and lay statements of record.

Thus, while the Veteran's credible complaints of persistent panic attacks may be considered consistent with the symptom criteria of "near-continuous panic attacks" of the higher evaluation, the overall disability picture more nearly approximates the criteria described in a 50 percent rating.  Additionally, in October 2008, the Veteran indicated that he felt his psychiatric disorder was 50 percent disabling after having been provided the rating criteria in a VCAA letter.  As noted above, a mental disorder must be evaluated based on an overall severity of symptoms, including the frequency, severity, and duration of symptoms, and length of remission.  38 C.F.R. § 4.126.

Extraschedular Consideration

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  In this case there are no exceptional or unusual factors with regard to the Veteran's PTSD, knee disabilities, or back disability.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such exceptional disability pictures that the available schedular evaluations for the service- connected disabilities are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatologies and provide for more severe symptoms than shown by the evidence during the periods in question; thus, his disability pictures are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

The Veteran has indicated that he has lost significant amounts of work due to this disabilities.  He has indicated he lost roughly 20 days of work due to his knee disabilities, his supervisor noted he lost about 60 days of work due to his psychiatric symptoms, and he has stated he lost a combined 100 days of work in 2012 due to a combination of physical and mental disabilities.  The record also contains several instances of requests off of work due to anxiety, and at least three Family Medical Leave Act forms are mentioned, two for anxiety and one for the flu.  The Veteran's anxiety was noted in the 2008 VA examination to result in reduced reliability, which is evidenced through his coworker's statements regarding not knowing if he will show up or take leave for his PTSD.  Thus, his reduced reliability with regards to showing up to work is contemplated by his 50 percent rating.  As noted above, there is no indication other than the Veteran's questionable statements that he lost numerous days of work due to his physical disabilities.  His lumbar spine is rated as high as allowed by the criteria without evidence of ankylosis; however, no physician has prescribed bedrest and in 2009 he was able to bend over and tie his shoe easily.  Similarly, his knees maintained noncompensable a level of flexion and extension until 2012, testing revealed the knees were stable, and x-rays were negative.  The ratings provided due to the Veteran's complaints of pain without other objective evidence were generous.

The Court has held that a claim for total disability based on individual unemployability (TDIU) may be a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, the Veteran's service-connected disabilities, particularly his PTSD, affect his employment, but he has maintained employment throughout the claims process, and thus a TDIU claim is not raised.


ORDER

Entitlement to an initial rating in excess of 10 percent for right knee strain is denied. 

Prior to December 18, 2012, entitlement to an initial rating in excess of 10 percent for left knee strain is denied.

Prior to April 12, 2010, entitlement to an initial rating in excess of 10 percent for a lumbar spine disorder is denied.

From April 12, 2010, entitlement to a rating of 40 percent, and no higher, for a lumbar spine disorder is granted.

Since December 18, 2012, entitlement to a separate 10 percent rating (but no higher) for each (bilateral) lower extremity radiculopathy is granted.

Entitlement to an initial 50 percent rating, and no higher, for PTSD, is granted.

Entitlement to separate 10 percent ratings for mild bilateral radiculopathy is granted.


REMAND

Unfortunately, a remand is required in regards to the Veteran's claim.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met.

The Veteran's claim for an increased rating for his left knee from December 18, 2012 must be remained for additional development.  According to evidence submitted after the last Supplemental Statement of the Case, the Veteran was scheduled to undergo knee surgery in July 2013.  Records regarding this surgery are not contained in the claims file or Virtual VA, and should be obtained.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The AMC should request records from Dr. R.M. of OrthoCarolina for all treatment records for the Veteran's left knee from 2012 onward, to include any treatment records regarding knee surgery and convalescence.  All records obtained or any responses received must be associated with the claims file.  If the AMC cannot locate any identified records held by a Federal government entity, the AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The AMC must then: (a) notify the claimant of the specific government records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The claimant must then be given an opportunity to respond.

2.  Following receipt of this evidence, the AMC is free to undertake any additional development, to include a new examination if deemed necessary.  Thereafter, the AMC should readjudicate the claim.  If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant and her representative.  The case should be returned to the Board for further appellate review, if in order.

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

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



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs