Citation Nr: 1329607 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 05-32 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right ankle disorder, to include on a secondary basis. 2. Entitlement to a higher initial disability rating for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial disability rating in excess of 10 percent for mild chondromalacia patellae with tendonitis of the right knee. 4. Entitlement to an initial disability rating in excess of 10 percent for mild chondromalacia patellae with tendonitis of the left knee. 5. Entitlement to an initial disability rating in excess of 20 percent for rotator cuff impingement syndrome of the left shoulder. REPRESENTATION Veteran represented by: Rebecca C. Patrick, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to July 1987, and from November 1988 to December 1993. He also had service with the Army National Guard Reserves from approximately July 1998 to December 2003. The right ankle claim comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for a right ankle disorder. The Veteran filed a Notice of Disagreement (NOD) in May 2005. The RO issued a Statement of the Case (SOC) in September 2005. In September 2005, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. The PTSD and left shoulder claims come before the Board on appeal from a May 2007 rating decision of the RO in Columbia, South Carolina, which granted service connection for PTSD, evaluated at 30 percent disabling, and service connection a rotator cuff impingement syndrome of the left shoulder, evaluated at 20 percent disabling, with the evaluation for each disability effective from August 31, 2004 (the date of receipt of the Veteran's service connection claims). The Veteran filed a NOD in July 2007, appealing the initial disability ratings assigned. The RO furnished the Veteran a SOC in October 2007. In December 2007, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. By an August 2008 rating decision, the RO assigned a 50 percent rating for PTSD, effective from August 31, 2004. As the 50 percent rating does not represent the highest possible schedular rating for this disability, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The bilateral knee issues come before the Board on appeal from a November 2011 rating decision of the Appeals Management Center (AMC) in Washington, DC, which granted service connection for mild chondromalacia patellae with tendonitis of the right and left knees, with each knee evaluated at 10 percent disabling, effective from August 31, 2004. In January 2012, the Veteran filed his NOD and contested the initial 10-percent disability ratings assigned. To date, the RO has not issued a SOC on these issues. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in June 2009. A transcript of this proceeding has been associated with the claims file. In a January 2010 decision, the Board denied: (1) an initial rating in excess of 20 percent for a rotator cuff impingement syndrome of the left shoulder; and (2). an initial rating in excess of 50 percent for PTSD. The Veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2011 Memorandum Decision, the Court vacated that part of the January 2010 Board decision pertaining to the left shoulder issue, and reversed that part of the January 2010 Board decision pertaining to the PTSD issue. The Court then remanded those two issues to the Board for further readjudication. The issues that remained in the January 2010 Board decision were left undisturbed. As will be discussed in further detail below, in accordance with the Court's memorandum decision, the Board will grant the Veteran an initial disability rating of (at least) 70 percent for PTSD since August 31, 2004 (the date of receipt of his service connection claim). See Chisem v. Gober, 10 Vet. App. 526, 527-528 (1997) (under the "law of the case" doctrine, the Board is bound by the findings contained in the Court's decision and is not free to do anything contrary to the Court's prior action with respect to the same claim). In January 2010 and March 2012, the Board remanded the issue of service connection for residuals of a right ankle injury, to include on a secondary basis, to the RO AMC in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. This issue still remains a part of the current appeal. The issues concerning entitlement to service connection for headaches and a skin disorder were previously before the Board on appeal in March 2012. However, following a Board remand, the RO granted the service connection for each of these disabilities in a December 2012 rating decision. To date, the Veteran has not appealed either the initial disability ratings or effective dates assigned. Therefore, these issues are no longer a part of the current appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see, too, 38 C.F.R. § 20.200 (2012). The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision and remand, along with his paper claims file. The issues of: (1) entitlement to an initial disability rating in excess of 70 percent for PTSD; (2) entitlement to an initial disability rating in excess of 10 percent for mild chondromalacia patellae with tendonitis of the right knee; (3) entitlement to an initial disability rating in excess of 10 percent for mild chondromalacia patellae with tendonitis of the left knee; and (4) entitlement to an initial disability rating in excess of 20 percent for a rotator cuff impingement syndrome of the left shoulder, are addressed in the REMAND portion of the decision below and are REMANDED to the VARO. FINDINGS OF FACT 1. The information of record indicates that the Veteran sustained a right ankle injury during a period of time when he was performing inactive duty for training. 2. The evidence of record is in relative equipoise as to whether the Veteran's right ankle disorder, idenitied as a right ankle sprain with tibial tendonitis, anterior ankle impingement, and arthritis, had its onset from the right ankle injury he incurred during a period of inactive duty for training. 3. Since August 31, 2004, the Veteran's PTSD symptoms have been of the severity, frequency and duration that produced occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for establishing service connection for a right ankle disorder, identified as a right ankle sprain with tibial tendonitis, anterior ankle impingement, and arthritis, have been met. 38 U.S.C.A. §§ 101(2), (22)-(24), 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Since August 31, 2004, the criteria for an initial disability rating of 70 percent for PTSD are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist The Board is granting the Veteran an initial disability rating of (at least) 70 percent for the service-connected PTSD. The Board is then remanding the issue of entitlement to an initial disability rating in excess of 70 percent for PTSD to the RO for further development. The Board is also granting service connection for a right ankle disorder. Thus, in light of these favorable determinations, no further discussion of compliance with VA's duty to notify and assist is necessary. II. Service Connection The Veteran seeks service connection for a right ankle disorder. Service connection may be granted if the evidence demonstrates that a current disorder resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be: competent evidence of a current disorder; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and, competent evidence of a nexus between an in- service injury or disease and the current disorder. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). However, the presumption provisions of 38 C.F.R. §§ 3.307 and 3.309 are inapplicable to periods of active duty for training (ACDUTRA) and INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). The phrase "in the active military, naval, or air service" is defined by 38 U.S.C.A. § 101(24). This phrase embraces active duty, any period of active duty for training (ACDUTRA) which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred in or aggravated in the time of duty. Id. The implementing regulation defines INACDUTRA as "duty (other than full-time duty) performed by a member of the National Guard of any State . . . ." 38 C.F.R. § 3.6(d)(4). Thus, an individual engaged in INACDUTRA who is disabled from an injury incurred or aggravated in the line of duty may be eligible to receive compensation. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. As previously stated, the first element requires medical evidence of a current disorder. Here, a current diagnosis has been established. At the September 2011 VA examination, the Veteran was diagnosed with posterior tibial tendinitis and anterior ankle impingement and arthritis of the right ankle. On VA examination in March 2012, the Veteran was diagnosed with right ankle sprain. Thus, the Veteran has satisfied the first element of service connection. The second element requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the record does not show that a right ankle injury was incurred during the Veteran's period of active duty service, or within the one year period following his discharge from the active duty. Thus, there is no basis for establishing service connection based on that period of service. Instead, the Veteran testified at the Board hearing that he injured his right ankle when he was in Officer Candidate School in Fort Jackson, South Carolina, on INACDUTRA service with the National Guard. He stated that he had his front and back gear on and was running on a raised sidewalk. He stated that he went off the sidewalk and twisted his ankle really badly, and that this injury put him out of Officer Candidate School. In this regard, upon completion of his active duty service, the Veteran joined the South Carolina Army National Guard from July 1998 to December 2003. The Veteran's Army National Guard Retirement Points History Statement indicates that the Veteran was an Army National Guard Unit Member from July 30, 2001, to July 29, 2002, earning at least 50 points for inactive duty training (IDT). The Veteran's Army National Guard Reserve records also document a right ankle sprain in June 2002. The Veteran was ordered to light duty with no running, prolonged walking, marching, or driving a government vehicle. He was treated with over-the-counter medication (Motrin). This injury occurred at Fort Jackson in South Carolina. Thus, when viewed in this context, the service department records suggest that the Veteran sustained a right ankle sprain in June 2002 when he was on INACDUTRA service with the National Guard. There is no indication from the record to distinguish between ACDUTRA or INACDUTRA for that period of service. However, in giving the Veteran the benefit of the doubt, the Board finds that the Veteran's status in June 2002 was INACDUTRA. Thus, the Board finds that the Veteran was on INACDUTRA status with the Army National Guard when he sustained a right ankle injury in June 2002. The Veteran's National Guard service ended in December 2003. As previously mentioned, the third element requires medical evidence of a nexus between the current disorder and the in- service disease or injury. In other words, the question now becomes whether the right ankle injury sustained by the Veteran in June 2002 during a period of INACDUTRA was the initial onset of any currently diagnosed right ankle disorder, namely posterior tibial tendonitis and anterior ankle impingement and arthritis of the right ankle (VA examination dated in September 2011) and right ankle sprain (VA examination dated in March 2012). In this regard, on a VA joints examination in September 2011, following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that it is less likely as not that the Veteran's current right ankle disorder is related to his active duty service. The examiner reasoned that the only pertinent record was the 2002 record from Fort Jackson. The examiner could not find any other pertinent military records relating to the Veteran's right ankle. In the same way, the Veteran was afforded a VA addendum medical opinion in November 2011. Following a review of the claims file, to include the recent VA examination, the VA examiner determined that the Veteran's current right ankle disorder is less likely as not related to his active military service. The examiner reasoned that there is no evidence in the Veteran's STRs of a right ankle injury or treatment. In addition, the Veteran was afforded another VA ankle examination in March 2012. Following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that it is less likely as not (less than 50 percent probability) that the Veteran's current right ankle disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that no chronic right ankle disorder was documented in the Veteran's STRs. The examiner also reasoned that the Veteran's right ankle was stable at the VA examinations. No ligament laxity was noted, which would be found with significant strains or instability. On VA examination in March 2012, the VA examiner, following a physical examination of the Veteran and a review of the claims file, found that the Veteran's current right ankle disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected bilateral knee disabilities. The examiner also found that the Veteran's bilateral knee disabilities did not aggravate his current right ankle disorder. The examiner reasoned that a knee disability does not predispose someone to ankle strains. The Board finds these VA medical opinions to be inadequate. The VA examiners only addressed the Veteran's period of active duty, and did not discuss his right ankle sprain incurred during his INACDUTRA period of service. None of the examiners offered a medical opinion regarding whether any current right ankle disorder results from the June 2002 INACDUTRA injury. Therefore, the Board finds that the VA opinions are of little probative value in resolving the issue on appeal. However, the evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is in equipoise, and thus the Veteran's current right ankle sprain is found to be related to his INACDUTRA period of service. See 38 U.S.C.A. § 5107(b). As stated above, an INACDUTRA treatment record shows that the Veteran suffered a right ankle sprain in June 2002. Post-service, at the March 2012 VA examination, the examiner diagnosed the Veteran with a right ankle sprain. There is no evidence in the claims file of a superimposed injury occurring between 2002 and 2012. On balance, the record evidence seems to support a finding of an initial onset of a right ankle disorder, to include a right ankle sprain with tibial tendonitis, anterior ankle impingement, and arthritis, during his INACDUTRA period of service. This provides a plausible basis to conclude that the Veteran's current right ankle sprain is related to his military service. With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for a right ankle sprain. 38 U.S.C.A. § 5107(b). The Veteran's claim of entitlement to service connection for a right ankle disorder, to include a right ankle sprain with tibial tendonitis, anterior ankle impingement, and arthritis, is granted. III. Initial Rating The Veteran seeks a higher initial disability rating for his service-connected PTSD. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2012). Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's PTSD is currently rated as 50 percent disabling under DC 9411, since August 31, 2004 (the date of receipt of his original claim of service connection) The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. 38 C.F.R. § 4.130. Under the formula, a 50 percent disability rating is warranted when there is 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, DC 9411. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and, inability to establish and maintain effective relationships, warrants a 70 percent disability rating. Id. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, warrants a 100 percent disability rating. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2012)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown , 8 Vet. App. 240 (1995). The Board notes that a GAF score ranging from 61 to 70 reflect some mild symptoms or some difficulty in social, occupational, or school, but generally the person functions well, and has some meaningful interpersonal relationships; a score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning; a score of 41-50 indicates serious symptoms or any serious impairment in social, occupational or school; and, a score of 31 to 40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation 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). In an October 2011 Memorandum Decision, the Court reversed and remanded that part of the January 26, 2010, Board decision, to the extent that it determined that an initial disability rating in excess of 50 percent was not warranted. In accord with the Court's ruling in its memorandum decision, the Board is granting the Veteran an initial disability rating of (at least) 70 percent for his PTSD, effective from August 31, 2004 (the effective date of his service connection grant). As articulated in the Court's decision, the evidence of record supports the finding that the Veteran's service-connected PTSD is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130, DC 9411. Specifically, a letter from the Veteran's girlfriend dated in August 2004, reported that: [The Veteran] experiences severe mood swings. One minute he is happy and having a good time, and then a split second later he is in the worst mood possible for no apparent reason. Usually he is either in a really good mood or a really bad mood. There are not many in between times. In affect [sic], his relationships with people are a hit and miss, because some are unable to put up with his frequent mood swings. Most of his friends though know when the time is and usually stay away, giving [the Veteran] his space and time. There are also times when he feels that everyone is 'out to get him.' He feels like he can trust no one, not even his own mother, at times. His paranoia becomes so overwhelming at times that he refuses to go anywhere or speak to anyone, even myself. [The Veteran] also suffers from bouts of depression, usually after hearing or seeing something that reminds him of Desert Storm. For example: We were having breakfast at Cracker Barrel on Saturday morning and having a nice conversation and then he just started crying uncontrollably. He could not compose himself enough to sit there and had to go outside, where he started crying more intense. When I asked what was wrong, he told me that the noise he just heard reminded him of an incident during Desert Storm. He didn't finally get over this for two days. When the Afghanistan Conflict and, especially Iraq started, [the Veteran] has withdrawn from many people. He has been crying a lot more often, his mood wings are more dramatic and he tells me experiencing a feeling of guilt. [The Veteran's] anxiety level increases if he has to drive during light periods of rain. He states that it reminds him of the 5-ton accident that occurred during Operation Desert Storm. Furthermore, he does not like anyone else to drive him because he 'needs to be in control in case something was to happen.' He also has several nightmares per week, reliving his moments in Desert Storm. [The Veteran] has an extremely hard time sleeping through the night. In fact, I can't remember him ever having a complete night's sleep. He will sleep for an hour and wake up 2-3 hours. If he is lucky, he will get 3-4 hours of sleep a night. Again, he is plagued with nightmares almost on a nightly basis. At times, he has trouble remembering simple things like how to spell, or where he is going and a conversation that we just had. For example, he has told me that he was driving home and missed the turn. He ended in Columbia and started crying because he did not remember how he got there or where he was supposed to be going. A letter from the Veteran's co-worker in July 2005 stated that the Veteran "showed a lot of professionalism and was generally fun to be around. However, there were signs of some difficulties from his Desert Storm days. He occasionally had mood swings when he withdrew from many of his fellow workers, and we knew to stay away from him then." The co-worker indicated that he is still friends with the Veteran, and the Veteran continues to suffer from challenges as a result of Desert Storm. The Veteran's friend also wrote a letter describing a recent visit by the Veteran. The friend reported that, "[M]any things quickly causes his mood to change. It was easy to see [the Veteran] become uncomfortable in a crowd of people . . . [the Veteran] has abrupt mood swings and at times quick tempered . . . He was visually upset with inflamed emotions. [The Veteran] stated, 'The only thing that keeps me going is my son and my mom. If it wasn't for them I wouldn't be here.'" At the January 2007 VA examination, the VA examiner found that the Veteran experienced poor sleep, feelings of isolation, flashbacks, difficulty trusting others, and thoughts of death on a daily basis. The examiner also stated that the Veteran's job was not going well. The examiner assigned a GAF score of 40, which indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school. Additionally, at the June 2008 VA examination, the VA examiner documented that the Veteran reported: a divorce in 2000; difficulty in relationships due to his PTSD symptoms; having few friends and difficulty socializing with others; and, poor motivation to complete his activities of daily living and at times will skip his basic activities altogether. The examiner then assigned a GAF score of 48, and found that the Veteran was demonstrating severe impairment in functioning related to his service-connected PTSD. In July 2009, the Veteran's private physician provided a medical opinion following an examination of the Veteran. At the examination, the Veteran reported experiencing repeated episodes of persistent depressed mood, diminished energy level, loss of appetite, sleep disturbance, and suicidal ideation coupled with stomach problems and persecutory distortion/delusions. He described auditory distortions and panic attacks that were not situation-specific. The Veteran stated that he had unreasonable fears, unwanted repetitive thoughts, and intrusive memories. Concerning the Veteran's job or school problems, the private physician then opined that the finding of the PTSD Diagnostic Scale strongly indicated that the symptom severity rating was severe and his level of impairment in functioning was also severe. The physician also opined that the Veteran's current problems were increasing difficulty in defending from his symptoms and that his employment and ability to function in the community were at "clear jeopardy." The physician concluded that the Veteran's impairment had reached a level where he should be classified as "completely disabled and provided benefits accordingly." Upon review of the record evidence, as discussed above, the Court concluded that the Board's conclusion was "clearly erroneous," leaving the Court with the definite and firm conviction that the Veteran's PTSD symptoms at least reflected occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, which warranted at least a 70 percent disability rating. Therefore, in accordance with the law of the case doctrine, the Board grants an initial disability rating of 70 percent for the Veteran's service-connected PTSD, from August 31, 2004 (the effective date of his service connection grant). 38 C.F.R. § 4.130, DC 9411; see Chisem v. Gober, supra. To this extent, the appeal is granted. To the extent that the Veteran contends that he is entitled to an initial disability rating in excess of 70 percent for his PTSD, from August 31, 2004, that issue will be addressed in the remand below, and no further discussion is necessary in the decision. ORDER Entitlement to service connection for a right ankle disorder, identified as a right ankle sprain with tibial tendonitis, anterior ankle impingement, and arthritis, is granted. Subject to the laws and regulations governing monetary awards, entitlement to an initial disability rating of 70 percent for PTSD, since August 31, 2004, is granted. REMAND The Board finds that further development is necessary before the remaining claims can be adjudicated. Knees Claims The Board has determined that the Veteran filed a timely NOD in January 2012 in response to the November 2011 rating decision that granted service connection for the Veteran's bilateral knee disabilities. The Veteran appealed the initial 10 percent disability ratings assigned. Thus, the RO must now respond to the Veteran's January 2012 NOD with a SOC addressing the issues. Manlincon v. West, 12 Vet. App. 238 (1999). PTSD Claim (In Excess of 70%) Initially, the Veteran's Virtual VA claims file contains a January 2011 rating decision from the RO in Columbia, South Carolina, granting a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective from June 4, 2010. In the rating decision, the RO refers to several lay statements dated in 2010 and a medical opinion from Dr. J.L. dated in June 2009. These documents are not currently in the Veteran's paper claims file or Virtual VA claims file. Thus, the Board must assume that these documents are in the Veteran's temporary file. This temporary file has not been associated with the claims file. Since the temporary file may contain evidence and information relevant to the claims on appeal, the Board finds a remand is needed in order to obtain the temporary file pertaining to the Veteran and associate it with the claims file. Additionally, the Veteran's last VA examination to assess the current severity of his service-connected PTSD was in July 2008. This examination is now over five years old. Since the July 2008 VA examination, the Veteran has been awarded a TDIU based on the severity of his service- connected disabilities, to include his service-connected PTSD. This suggests to the Board that the Veteran's PTSD is currently more severe than is evidenced by the examinations of record. The Board finds that more recent evidence must be obtained in order to determine the current severity of the Veteran's PTSD. An additional VA examination is therefore necessary to determine the current severity of the service-connected PTSD. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); see, as well, VAOPGCPREC 11-95 (1995). Left Shoulder Claim The Veteran's rotator cuff impingement syndrome of the left shoulder is currently rated under 38 C.F.R. § 4.71a, DC 5201 (2012), which considers the Veteran's limitation of motion of the left shoulder in determining the appropriate disability rating. The Court has repeatedly held that examinations provided to evaluate the extent of a Veteran's functional loss of the musculoskeletal system under rating codes based on limitation of motion must determine whether any pain found to be present could significantly limit functional ability during flare-ups or upon repetitive motion. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202, 205-6 (1995). These determinations, should, if feasible, be portrayed in terms of the additional range-of-motion loss due to pain on use or flare-ups. Id. Where this information is not provided in the examination report, or the report does not include an explanation for why this information could not feasibly be provided, the examination report is inadequate for rating purposes. Mitchell, 25 Vet. App. at 44. At the recent VA joints examination in January 2007, the Veteran reported flare-ups and pain in his left shoulder. In this regard, the VA examiner did not adequately address the DeLuca and Mitchell requirements. The VA examiner found that the Veteran did have pain upon active ranges of motion of the lumbar spine. The examiner, however, did not address where pain starts upon range of motion testing. The examiner also did not discuss whether any functional loss is attributable to pain during flare-ups. There are no pertinent left shoulder examinations dated since January 2007. The Court in its memorandum decision also pointed out several deficiencies in the January 2007 VA examination. Therefore, the Board finds the January 2007 VA examination to be inadequate. See Barr, 21 Vet. App. at 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Thus, on remand, the Veteran should be afforded another VA examination, as fully detailed below, for the left shoulder claim. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND at whatever location it is scheduled and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). Additionally, the most recent outpatient treatment records from the VA Medical Center (VAMC) in Columbia, South Carolina, are dated from June 2009. All pertinent records since this date should be obtained and added to the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Accordingly, the case is REMANDED for the following actions: 1. Furnish a SOC addressing the issues of entitlement to an initial rating in excess of 10 percent for the mild chondromalacia patellae with tendonitis of the right knee and entitlement to an initial rating in excess of 10 percent for the mild chondromalacia patellae with tendonitis of the left knee. Advise the Veteran and his representative of the date on which the time allowed for perfecting a timely substantive appeal of these issues expires. If the Veteran and/or the Veteran's representative perfects his appeals by submitting a timely and adequate Substantive Appeal, then the RO should return the issues to the Board for the purpose of appellate disposition, if the determination of these issues remain adverse to the Veteran. 2. Obtain and associate the Veteran's temporary file(s) from the RO in Columbia, South Carolina, with the claims file. All requests for the temporary file and responses thereto must be documented in the claims file. 3. Obtain all pertinent VA outpatient treatment records from the Columbia, South Carolina, VAMC, since June 2009. Ensure that the Veteran has not been treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 4. Update all private treatment records currently contained in the claims file. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 5. After obtaining the above records, provide a VA psychiatric examination to the Veteran in order to assist in evaluating the severity of his service- connected PTSD. Properly notify the Veteran by sending notice of the details of the examination to the Veteran at his correct address. Send the notice with sufficient time in advance to allow the Veteran to attend the examination. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Ask the examiner to discuss all findings in terms of the diagnostic codes, particularly Diagnostic Code 9411. The pertinent rating criteria must be provided to the examiner. The findings reported must be sufficiently complete to allow for rating. All indicated tests and studies should be accomplished. All clinical findings should be reported in detail. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. 6. After obtaining the above records, provide a VA joints and muscle examination(s) to the Veteran in order to assist in evaluating the severity of his service-connected rotator cuff impingement syndrome of the left shoulder. The Veteran's claims folder must be reviewed by the examiner(s) in conjunction with the examination. Ask the examiner(s) to discuss all findings in terms of the diagnostic codes, particularly Diagnostic Codes 5200, 5201, 5301, 5302, 5304, 5305, and 5306. The pertinent rating criteria must be provided to the examiner(s). The findings reported must be sufficiently complete to allow for rating. All indicated tests and studies should be accomplished. All clinical findings should be reported in detail. The examination report(s) must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner(s). The examiner(s) should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner(s) should so indicate. The examiner(s) should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner(s) should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner(s) should so indicate. The examiner(s) must also provide an opinion regarding whether the Veteran has any weakness of pain of the supraspinatus muscle that can properly be considered part of his service-connected left shoulder rotator cuff impingement syndrome. The examiner(s) must address whether the Veteran has ankylosis of the left shoulder joint. The examiner(s) should specifically discuss the severity of any muscle impairment to the left shoulder in terms of slight, moderate, moderately severe, and severe, including any muscle impairment of the affected Muscle Groups. The examiner(s) must provide an opinion regarding whether any muscle impairment can properly be considered part of his service-connected left shoulder rotator cuff impingement syndrome. Any opinion expressed by the VA examiner(s) should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. 7. After all of the above actions have been completed, readjudicate the Veteran's claims of entitlement to an initial rating in excess of 20 percent for the rotator cuff impingement syndrome of the left shoulder and entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). If the claims remain denied, issue to the Veteran and his representative a SSOC, and afford the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs