Citation Nr: 1331869 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-00 989 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to increased rating (evaluation) in excess of 50 percent for posttraumatic stress disorder (PTSD) with anxiety and depressed mood. 2. Entitlement to an increased (compensable) rating (evaluation) for a back disability with a disc bulge, lumbar spine at L4-5 and L5-S1 (back disability). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran (Appellant) served on active duty from August 2000 to November 2006. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. For the rating period on appeal, the Veteran's PTSD with anxiety and depressed mood has been characterized by occupational and social impairment with reduced reliability and productivity. 2. For the rating period on appeal, the Veteran's PTSD with anxiety and depressed mood has not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. For the rating period on appeal, the Veteran's back disability has been characterized by muscle spasm, guarding or localized tenderness but not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. For the rating period on appeal, the Veteran's back disability has more nearly approximated a noncompensable limitation of motion due to pain, tenderness, and muscle spasm. 5. The Veteran has not been prescribed bed rest to treat his service-connected back disability at any time during the course of the appeal. 6. Even considering functional limitation caused by pain, weakness, stiffness, fatigability, and lack of endurance, etc., forward flexion in the back exceeded 60 degrees and combined range of motion of the back exceeded 120 degrees. 7. The Veteran has no separate neurologic disability related to the back disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for a back disability, and no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, a VCAA notice letter sent in April 2009 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competency is challenged). Indeed, even when the adequacy is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). In October 2009 the RO provided the Veteran with VA a psychiatric examination to assist in determining the extent of the Veteran's PTSD. In May 2009, the RO provided the Veteran with a VA spine examination to assist in determining the extent of the back disability. In December 2009, the Veteran filed a Notice of Disagreement challenging the adequacy of the October 2009 VA examination, alleging that the VA examination was of too short a duration and the examiner used psychometric testing to rule out symptoms rather than findings directed toward the severity of symptoms. Additionally, in his April 2012 Substantive Appeal, the Veteran stated he felt the opinion from Dr. W.A. should be afforded greater weight as it describes the severity of his symptoms. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant challenging the expertise of a VA physician must "set forth the specific reasons . . . that the expert is not qualified to give an opinion." Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). That has not happened in this case. While the Veteran, in his December 2009 Notice of Disagreement, disagreed with the VA examiner's findings from the October 2009 VA examination, he again did not allege the examiner was incompetent with respect to evaluating psychiatric disorders. Since the Veteran has not provided a specific argument or evidence concerning the professional competence of the VA examiner, the examiner is presumed competent. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009). The Board finds the October 2009 VA examination was thorough and adequate for rating purposes. While the Veteran contends in his notice of disagreement (NOD) that the VA examination was too short and should be afforded little probative value, the report reflects that the VA examiner personally interviewed and examined the Veteran and the history was thoroughly recorded, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. There is no indication that the findings or history are incomplete or inaccurate and the VA examiner provided a rationale for his statements that is consistent with the findings and the evidence of record. As the examination reports were written after an interview and physical and mental examination of the Veteran, and contained specific clinical findings indicating the nature of the Veteran's PTSD disability and symptomatology as well as the Veteran's back disability and symptomatology, the VA examinations are adequate for VA purposes, and there is no duty to provide an additional examination or medical opinion for this claim. The VA spine examination included range of motion testing, indicated whether there were factors that further limit motion, and tested for neurological symptoms associated with the back disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally of note, the Veteran has not alleged a worsening of his symptoms either for PTSD or back disability during the entirety of the appeal, including since the VA examinations were conducted. The Veteran was also offered the opportunity to testify at a hearing before the Board but he declined. VA has obtained records of treatment reported by the Veteran, including a letter regarding treatment from the Veteran's private psychotherapist, Dr. W.A., and statements from the Veteran and his representative. Of note, there is no further evidence in the records that the Veteran is currently undergoing any treatment for PTSD or back disability, whether through Dr. W.A. or any other medical professional. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, VA has fulfilled the duties to notify and assist and no further notice or assistance to the Veteran is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The United States Court of Appeals for Veterans Claims has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Increased Rating for PTSD The Veteran is in receipt of a 50 percent disability rating for PTSD under Diagnostic Code (DC) 9411. The Veteran's claim for an increased rating for his service connected PTSD was received in February 2009. A 50 percent rating is assigned when PTSD causes 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. A 70 percent disability rating is assigned when PTSD causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned when PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). As noted below, treatment providers have rendered Global Assessment of Functioning (GAF) scores pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). As indicated in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), the GAF is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. A score in the range of 51 to 60 indicates moderate symptoms (e.g., a flattened affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., having few friends or having conflicts with peers or co-workers). A GAF score of 41 to 50 reflects a serious level of impairment (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood and an inability to work. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See also 38 C.F.R. § 4.126(a) (an evaluation shall be based on all the evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of examination). The Veteran contends that his PTSD warrants a higher disability rating in excess of 50 percent due to his PTSD symptoms which interfere with his sleep, ability to socialize, and ability to work. The Veteran contends that his PTSD symptoms have caused severe social and occupational impairment more nearly approximating, at the very least, a 70 percent disability rating. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal, the Veteran's PTSD has been characterized by depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining relationships, and occupational and social impairment with reduced reliability and productivity, consistent with the criteria for a 50 percent disability rating under DC 9411. 38 C.F.R. § 4.130. The evidence of record also does not support a need for the Board to consider staged ratings pursuant to the requirements set out in Hart as the record does not appear to suggest distinct periods of worsening and/or recovery during the entire period on appeal. The evidence of record includes a letter from a private psychologist, Dr. W.A., dated January 2009, which was received in February 2009 with the Veteran's PTSD increased rating claim. In the letter, Dr. W.A. states that the Veteran suffers from social isolation, problems with employment, problematic family relationships, judgment related issues, cognitive troubles and mood related difficulties as a result of his PTSD. Dr. W.A. specifically noted the Veteran experienced recurrent panic attacks and symptoms of agoraphobia along with significant depressive symptoms, substance abuse involving excessive alcohol and social and work related functional impairment, significant cognitive difficulties related to concentration and memory, and impulse control issues including angry outbursts negatively impacting his family and employment. Dr. W.A. assigned a GAF score of 38 which would indicate some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. Such symptoms and degree of occupational impairment are not shown by the evidence of record. The evidence shows that the Veteran was employed as a server in a restaurant at the time and maintained a marriage with his wife and assisted in raising several children, which indicates Dr. W.A.'s assessment is not in line with the Veteran's actual level of functioning or symptoms at the time of the assessment. In January 2010, the Veteran underwent a follow-up private PTSD examination with Dr. W.A., and the examination was conducted via telephone with the psychologist assigning the same GAF score of 38 to the Veteran upon conclusion of the telephone examination. All information contained in the subsequent private treatment record appeared to be wholly duplicative of the prior year's private assessment. In the treatment report, there appears to be no mention that the Veteran's speech was illogical, obscure or irrelevant or that he neglected his family or was unable to work, which would be symptoms that might be suggestive of warranting a GAF score of 38. In fact, Dr. W.A. speaks to the Veteran's attendance of college courses at Seminole State College and transitioning to online courses as well as maintaining his marriage during the entire appeal period, which would not suggest occupational or social impairment, with deficiencies areas, such as family relations, judgment, thinking, or mood, as contemplated by a higher 70 percent PTSD rating. After reviewing the private examination records, while Dr. W.A. acknowledged and considered the Veteran's over disclosure of negative symptoms in the assessment, she still included and relied upon this inaccurately reported information in the final evaluation of the Veteran and the assignment of a GAF score of 38. Dr. W.A.'s reliance upon this inaccurately reported information when forming her final assessment results in her assessment being out of line with the other information of record, which shows the Veteran's ability to maintain a marriage, assist in raising children, maintain employment when employed, and more recently to attend college courses. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Importantly of note in the instant case, the evidence does not indicate that Dr. W.A. provided or currently provides any treatment to the Veteran or performed more than one examination and a follow-up phone call with him before providing an opinion with a markedly lower GAF score than the VA examiner's assessment. The Board is not bound to any "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471- 73 (1993). Instead, in offering guidance on the assessment of the probative value of medical opinion evidence, the Court has instructed that such assessment should be based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical opinion that the physician reaches. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Veteran underwent an October 2009 VA psychological examination that shows the Veteran's PTSD symptoms and social and occupational impairment more nearly approximate the criteria for a rating of 50 percent. At the VA examination, the Veteran reported sleep impairment, irritability, and difficulty with marital and financial stress. The VA examination revealed that the Veteran was fully oriented in all spheres. His speech was slow and clear and thought train was unremarkable. The Veteran's mood was euthymic and affect was appropriate. Attention and concentration appeared intact. Judgment and impulse control were intact and good. The VA psychologist in October 2009 assigned a GAF score of 50, suggestive of moderate to serious symptoms or moderate to serious occupational and social impairment. The VA examiner considered the Veteran's occasional suicidal ideations as well as his inability to maintain a steady job due to workplace conflicts when assessing a GAF score of 50, but also considered that the Veteran was currently enrolled in college courses and maintaining a marriage, which would appear to indicate at least some ability to function in school and social relationships. Additionally, the VA examiner noted that he had reviewed the private psychological evaluation when examining the Veteran and reaching his final assessment, noting the Veteran's strong exaggeration of negative symptoms and based upon this exaggeration, the lack of validity of the psychological testing performed by Dr. W.A. As mentioned above, the over reporting of negative symptoms by the Veteran was noted, relied upon by Dr. W.A. in her evaluation. However, the same information was considered by the VA examiner in his evaluation, but such overreported symptoms were discredited by the VA examiner, who did not rely on such overreporting. The overreporting is also inconsistent with other evidence of record; therefore, the VA examiner's nonreliance on such overreporting shows reliance on more accurate facts. The VA examiner then reported that while the Veteran's prognosis for improvement was poor to fair, if he attended treatment for his PTSD condition and substance abuse then his prognosis could improve. The VA opinion was thorough and took into account the Veteran's more accurate history and reported symptoms and the results of a mental status examination. The VA examiner reviewed the Veteran's claims file and opinion from Dr. W.A. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri, 4 Vet. App. at 470-71. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Dr. W.A. acknowledged that the Veteran over disclosed negative information related to his PTSD yet still appeared to rely upon the over disclosed information including history and inaccurately reported symptoms, when evaluating the Veteran. Such reliance on this inaccurate history resulted in assignment of a GAF score of 38. The VA examiner considered the over disclosure of negative information when evaluating the Veteran, but did not commit the error of relying upon this inaccurate information as probative when completing the assessment of the Veteran and assigning a GAF score of 50. While the GAF score is not the only factor in the Board's decision, it is a factor considered in conjunction with the examination reports, statements from the Veteran, and other lay and medical evidence in order to reach a final determination as to the overall degree of social and occupational impairment. Given the fact that Dr. W.A. appears to have relied upon the Veteran's over disclosure of the negative information when reaching her final evaluation and the VA examiner's consideration of and subsequent lack of usage of this information when reaching a final assessment, the Board finds the private psychologist's opinion is afforded less probative value in regards to the severity of the Veteran's PTSD symptoms and the level of impairment in social and occupation functioning, especially as purported to be represented by the GAF score. In contrast, the VA examination is afforded the most probative value due to its completeness and reliance on more accurately reported history of symptoms of PTSD affecting the Veteran. Given the Veteran's reported symptoms, results from the mental status examination, college attendance and maintenance of his marriage throughout the entire appeal period, and credible medical assessments as to the degree of occupational and social impairment, the Board finds that the occupational and social impairment due to symptoms more closely approximate a 50 percent rating. For these reasons, the Board finds that the Veteran's PTSD symptoms are not shown to be more than moderate in degree and only moderately impact social and occupational functioning. The Board finds that the occupational and social impairment and the severity of his symptoms due to PTSD more closely approximate the criteria for a 50 percent evaluation for PTSD for the entire initial rating period, and do not more nearly approximate the criteria for a 70 percent disability rating (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood). 38 C.F.R. §§ 4.3, 4.7. Although the Veteran does currently manifest symptoms of depression as noted in the VA examination, this has not affected his ability to function independently and is not "near-continuous" depression as contemplated by a 70 percent PTSD disability rating. The VA examiner assessed that the Veteran's speech was within normal limits, his thought train was linear and coherent, and the Veteran was found to be oriented as to all spheres. Although some difficulties in establishing and maintaining effective relationships have been noted in the record, the evidence does not demonstrate an inability to do so. For example, the Veteran is married, has been married through the pendency of his appeal, has children with his wife and is taking online classes three days a week. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous. Id. at 442. While the Board acknowledges some symptoms similar to the higher rating criteria of 70 percent, specifically the Veteran's reported passive suicidal ideations as considered by both Dr. W.A. and the VA examiner and difficulty in adapting to stressful circumstances, the severity of the Veteran's symptoms such as his panic attacks more than once a week and his good impulse control and no episodes of violence more nearly align with that contemplated by a 50 percent disability rating. The evidence of record shows that, while the Veteran may have reduced reliability and productivity, he is capable of working and maintains relationships, and is not deficient in most areas. The evidence shows that the Veteran's overall PTSD picture is adequately contemplated by the 50 percent rating. The Veteran does suffer from sleep problems, but this is specifically listed under the criteria for a 30 percent rating, a lower rating than the current 50 percent evaluation. Flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining relationships are specifically contemplated in the 50 percent rating criteria. The same is true with the Veteran's depression and anxiety, which are both symptoms contemplated under the 30 percent PTSD disability rating. A 50 percent PTSD disability rating also considers "disturbances of motivation and mood" which would include the Veteran's reported depression and anxiety symptoms. Notably, the Veteran's depression and anxiety have not been shown to be "near-continuous," as indicated by the October 2009 VA examination. The record shows that the Veteran is generally functioning satisfactorily. His behavior is routine, and his self-care and conversation are normal. The VA examination report shows that the Veteran's thought process is generally logical, relevant, and goal directed. Additionally, there are no VA treatment records associated with the Veteran's claims file. While there is evidence in the record that the Veteran received outpatient treatment for a mental disorder in August 2006 at Fort Drum, NY, while still in the service, this evidence is less probative in value because it was focused primarily on events occurring at the time (prior to the current increased rating period), such as his wife leaving him with his children and his lack of a valid family care plan. Since it is not only from outside the appeal period which began in February 2009 and he has been married through the entire duration of the appeal period, this evidence is afforded little probative value in support of the Veteran's current increased rating claim. Similarly, there are no private treatment records associated with the Veteran's claims file either from treatment by Dr. W.A., who provided the private psychiatric assessment, or treatment from any other private physician. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 50 percent for PTSD for any period, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Increased Rating for Back Disability The Veteran is in receipt of a noncompensable disability rating for a back disability under DC 5243. The Veteran's claim for an increased rating for his back disability was received in February 2009. The Veteran contends that he has weekly and sometimes daily spasms affecting his lumbar spine. DC 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2012). The Formula for Rating IVDS Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The Veteran has not alleged a need for prescribed bed rest and VA treatment records do not show prescribed bed rest for the Veteran's back disability. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's lower back disability under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Joints that are actually painful, unstable, or malaligned, should be entitled to at least the minimum compensable rating for the joint. To the extent the Veteran has reported experiencing back pain, for VA purposes, pain alone is not considered to be sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 . Functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). In DeLuca, the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; See DeLuca, 8 Vet. App. 202. As noted, there are several ways to merit a compensable rating for a back disability. A 10 percent rating is assignable based on muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. In this case, the Veteran stated there was no radiation of pain and that any pain was mild, lasted just minutes but was weekly to monthly in occurrence. The Veteran also denied any flare-ups related to his back disability. A VA examination conducted in May 2009 showed that the Veteran stated he had sharp pain in his low back accompanied by back spasms. Upon examination, the Veteran was found to have flexion from 0 to 90 degrees, extension from 0 to 30 degrees and lateral flexion, right and left, from 0 to 30 degrees. With repetitive use, range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance. Specifically of note, the VA examiner reported that the Veteran's back was nontender to direct palpation of the lumbar spine and no pain was present during active or passive range of motion testing, even after three repetitions of the tests performed. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. However, while no symptoms were shown on examination, given the credibly reported history of pain and spasms as reported at the VA examination, after a review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds that a compensable 10 percent rating is warranted for the back disability. For the rating period on appeal, the Veteran's back disability been characterized by muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour, which more nearly approximated the criteria for a 10 percent rating under the General Rating Formula of the Spine. Specifically of note, the VA examiner reported that the Veteran's back was nontender to direct palpation of the lumbar spine and no pain was present during active or passive range of motion testing, even after three repetitions of the tests performed. See 38 C.F.R. § 4.71a. The Veteran is not entitled to a 20 percent rating because the back spasms and localized tenderness are not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Specifically, the May 2009 VA examiner noted there were no abnormal spinal curvatures, no objective abnormalities of the thoracic sacrospinalis, and that the Veteran's posture and head position were normal and symmetrical in appearance. The Veteran's gait and weight bearing were also found to be within normal limits. As discussed above, the Veteran was found upon VA examination to have flexion from 0 to 90 degrees, extension from 0 to 30 degrees and lateral flexion, right and left, from 0 to 30 degrees (a combined range of motion greater than 240 degrees); therefore, the range of motion testing does not show sufficient limitation range of motion to warrant even a compensable rating (10 percent). As mentioned above, the Veteran reported no limitation of range of motion based upon pain from active range of motion or pain, fatigue, weakness or lack of endurance with repetitive use during the VA examination. However, relying upon the factors set out in DeLuca, the Board finds that the Veteran's statements regarding pain and muscle spasms during the VA examination would give rise to not more than a noncompensable limitation of range of motion, though the examiner stated that the Veteran's range of motion was normal. Based upon the lack of compensable limitation of motion, the criteria for a rating higher than 10 percent based upon limitation of motion are not met. The Board has also considered whether a separate evaluation for neurological disability is warranted. As instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, associated objective neurological abnormalities should be rated separately under an appropriate Diagnostic Code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Notably, on the various exams performed (motor, sensory and reflex), the Veteran was found to have normal reactions to all tests performed. During the May 2009 VA examination, the Veteran was found to have active movement against full resistance in both hips for flexion and extension, both knees for extension, both ankles for plantar and dorsiflexion and both great toes for extension. He was also found to have normal sensory reactions to vibration, pain, light touch and position sense in his lower extremities on both his right and left sides. Additionally, during the May 2009 VA examination, the Veteran was found to have normal knee and ankle jerk reflexes as well as normal plantar flexion. As the Veteran specifically reported no radiculopathy of pain and no incapacitating episodes to the VA examiner, separate ratings pursuant to Note (1) and Note (2) are not warranted. For these reasons, the Board finds the Veteran has no separately ratable neurologic disability of the back. 38 C.F.R. § 4.71a. Extraschedular and TDIU Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's PTSD and/or back disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's PTSD and back disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, DC 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD is manifested by depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining relationships. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, for the Veteran's PTSD disability, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Also, the PTSD schedular rating criteria by nature are focused on an evaluation of all the Veteran's symptoms. Therefore, extraschedular referral is unnecessary for the PTSD disability. Turning now to the Veteran's back disability, it is manifested by back spasms and occasional pain and tenderness and noncompensable limitation of motion which are directly contemplated by DC 5243, 38 C.F.R. §§ 4.40, 4.45, 4.59 and the factors to consider from DeLuca which are incorporated as part of the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with his back disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the evidence associated with the claims file shows that the Veteran is currently unemployed but taking online classes during the week and the record does not suggest the Veteran is unemployable whether through his own statements or any objective evidence. He has not alleged that he is, or was at any time, unemployable on account of his PTSD and/or his back disability; therefore, a TDIU claim is not raised by the record or the Veteran. ORDER A rating in excess of 50 percent for PTSD with anxiety and depressed mood is denied. A rating of 10 percent, and no higher, for the back disability with a disc bulge of the lumbar spine at L4-5 and L5-S1, from February 17, 2009, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs