Citation Nr: 1332541 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-11 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for major depressive disorder. 2. Entitlement to an evaluation in excess of 10 percent for degenerative changes of the left knee with chondromalaicia. 3. Entitlement to an evaluation in excess of 10 percent for degenerative changes of the right knee with chondromalaicia. 4. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from May 1980 to October 1981. This appeal came before the Board of Veterans' Appeals (Board) from a decision of August 2009 by the Department of Veterans Affairs (VA) St. Louis, Missouri Regional Office (RO). The RO in Denver, Colorado is currently the agency of original jurisdiction. The issue of TDIU is addressed in the Remand that follows the Order section of this Decision. FINDINGS OF FACT 1. Prior to February 24, 2012, major depressive disorder (MDD) was manifested by occupational and social impairment that most nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. 2. As of February 24, 2012, MDD is manifested by occupational and social impairment that most nearly approximates reduced reliability and productivity; neither deficiencies in most areas nor total occupational and social impairment are shown. 3. Degenerative changes of the left knee with chondromalaicia is manifested by limitation of motion and no instability; flexion is not limited to less than 45 degrees; extension is not limited to more than 5 degrees. 4. Degenerative changes of the right knee with chondromalaicia is manifested by limitation of motion and no instability; flexion is not limited to less than 45 degrees; extension is not limited to more than 5 degrees. CONCLUSIONS OF LAW 1. Prior to February 24, 2012, the criteria for a rating greater than 30 percent for MDD were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for a rating of 50 percent, and no more, for MDD have been met as of February 24, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9434 (2012). 3. The criteria for a rating greater than 10 percent for degenerative changes of the left knee with chondromalaicia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261, 5262, 5263 (2013). 4. The criteria for a rating greater than 10 percent for degenerative changes of the right knee with chondromalaicia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261, 5262, 5263 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that the originating agency provided the appellant all required notice by letters dated in February and June 2009, prior to the initial adjudication of the claims. The record also reflects that service treatment records and relevant post-service treatment records have been obtained. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate either claim. The Board is also unaware of any such evidence. In addition, the Veteran was afforded VA examinations. The Board finds the examination records are adequate for ratings purposes: they contain all information necessary to rate the disabilities. There is no allegation that they do not accurately reflect the Veteran's disability picture. The Board therefore finds the record is adequate for rating purposes. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. Above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). The Veteran's service-connected psychiatric disability currently is evaluated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). This code provides that a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Furthermore, with specific regard to the 70 percent rating, such rating "requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) (emphasis added). A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. It is noted that the "such symptoms as" language of the diagnostic code listed above means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Veteran's knee disabilities are each evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260 (2013). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension of a knee limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA's General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel has also held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September, 2004). In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013). III. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). MDD In this case, the evidence supports the criteria for a 50 percent disability rating for major depressive disorder as of and not before February 12, 2012. As will be explained below, the preponderance of the evidence is against the claim for a rating in excess of 30 percent prior to that date, and the claim for a rating in excess of 50 percent as of that date. In an April 2009 VA-ordered contract psychiatric examination, the Veteran reported severe daily depressed mood, apathy, and low self esteem due to not working. Depression reportedly tends to promote substance abuse. He reported that he also had periods of one to three months of feeling better. He was able to get a job during periods of remission, but stopped again after physical problems worsened. He reported that he had psychiatric hospitalizations in 1987 and 2005. He reported that he was in currently in psychiatric outpatient care at VA. The examiner noted that the Veteran's psychiatric problems contributed to his physical pain but he probably did not perceive this. He was not working. He was taking Paxil and getting counseling, which he felt were helpful. He reported he was married twice and divorced once. He has one daughter whom he did not meet until she was 25. He is in a committed relationship of 17 years. He gets along well with his family except when depressed, when he can be 'emotionally violent.' He enjoys helping people, church and social activities. His leisure pursuits include watching TV and movies, cooking and fishing. He does lawn and garden work at home in the summer. His degenerative joint disease and resulting pain appear related to his depression, as does his impotence. Current medications include oxycodone, Levitra and NSAIDS. He reported 7 arrests for domestic violence and noted that he had about 10 other fights started by others. He has a history of superficial wrist cuts deemed a suicide attempt. On mental status examination, there was no impairment of thought process or communication, delusions or hallucinations. He retained complete reality testing. There was no inappropriate behavior, suicide or homicidal thoughts, plan or intent. He had the ability to maintain minimal personal hygiene and other daily basic activities. He had normal orientation to person, place and time. Memory was reported as impaired inasmuch as he forgets to do tasks and take his medication on occasion. This was described as mild, occurring once every two weeks. Some doctors reportedly have complained that he missed appointments. He did not demonstrate obsessive or ritualistic behavior interfering with routine activities. He did not have irrelevant, illogical or obscure speech patterns. He claimed he had a panic attack once in 2007. He is depressed 70% of his days. He believes his depression is mild to moderate. He reported mild anxiety with minimal interference with employment and social functioning. He reported he has impulse control inasmuch as he struggles with substance abuse and violence. He explained that he uses cannabis two to three times weekly and became violent to his girlfriend twice in the last year. He reports nightly sleep impairment, is chronically fatigued reports sleep apnea. He reported that he also used alcohol and cocaine. The diagnosis was depression secondary to chronic knee, back and neck pain. Also diagnosed was breathing related sleep disorder and polysubstance abuse. The examiner noted that the depression and substance abuse worsen each other. He was noted to be unemployed and to have a Global Assessment of Functioning (GAF) score of 65. The Veteran noted that the primary reason he quit his job was physical pain and did not contend he stopped working due to depression. The examiner found occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to the mental disorder signs and symptoms, but generally satisfactory functioning (routine behavior, self-care, and conversation normal.) Although his physical problems effected his ability to work, the examiner thought it likely that the depression also plays a role by reducing his pain tolerance and creating chronic fatigue. The mental symptoms were severe enough to interfere with occupational and social functioning. VA treatment records dated from March 2008 through August 2009 show treatment and counseling for depression, relationship issues and medical problems to include knee pain. In an April 2009 primary care note, he was alert and oriented times three. The Veteran was afforded an additional VA psychiatric examination in February 2012. Axis I diagnoses include MDD and polysubstance dependence in remission. GAF score was noted as 55. The examiner assessed the Veteran as demonstrating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was not possible to differentiate what portion of the impairment was caused by the mental disorder. It was noted that, at the present time, his polysubstance abuse was in remission and so all mental health symptoms are due to depression. The Veteran described his current social situation as divorced, after a one year and four months marriage. He noted he had one daughter from another relationship he has never seen but is getting to know by phone. He has no friends in Colorado where he now lives but has some relatives. He reported he moved to Colorado two months prior to start a new life, as God told him to do. He felt that the devil was trying to take him over in Kansas City but he has the Good Book. His father's family is helping him, and he has a temporary place to stay, but he is currently homeless. He does not avoid social situations and loves to be around people. He reported sleeping poorly in Colorado due to altitude adjustment, which effects his sleep apnea. He told the examiner that he planned to apply for Social Security Administration Disability benefits. Regarding his depression, the Veteran reported most days were a 12 on a 10 point scale, but he denied suicidal or homicidal ideations. He reported some low self-esteem and feelings of worthlessness. He reported that he closed himself off from other people. He denied hopelessness. He stated that he is depressed because it is difficult to live with his medical problems because they prevent him from holding a job. He denied significant symptoms of a mood disorder and panic attacks. He reported he was not currently in psychiatric treatment but was going to try to begin at Denver VA medical center. The Veteran denied current legal issues. He reported he stopped using drugs over a year ago. On mental status examination, the Veteran received a score of 25/30 within normal range. He was casually dressed, cooperative, oriented and without hygiene issues. His mood was positive and talkative. Though he had to be redirected several times, he was quickly responsive to redirection. His attitude toward the examiner was excited, positive and cooperative. The examiner felt he may have overstated some symptoms like saying he was 12 on a depression scale of 1 to 10 and saying he was a 10 out of 10 in pain though he did not appear to have pain when he sat. He did demonstrate pain when he stood to walk. His speech and thought processes were normal. There was no evidence of hallucinations, delusions, obsessions, compulsions or phobias observed. Insight and judgment were adequate. The examiner felt it was impossible to determine how much his knee problems were the cause of his depression in light of the significant other causes of his depression. Three lay statements recently submitted indicate that the Veteran cannot work as he would like due to his orthopedic problems. They indicate that his orthopedic problems make him depressed. These were undated but submitted to VA in August 2012. Again, a 30 percent rating is in effect. Addressing the criteria for the higher, 50 percent rating, the Board finds that the above evidence is not consistent with a flattened affect at any time during the appeal. Indeed, the February 2012 examination record notes that the Veteran's affect was bright and his mood euphoric, and his attitude toward the examiner was positive. In the 2009 examination report, although the Veteran reported severe daily depressed mood and apathy, his behavior was not observed as inappropriate. The evidence is not consistent with circumstantial, circumlocutory, or stereotyped speech. The Veteran's speech consistently has been described in normal terms on both examination reports. He communicated in a positive manner at an February 2012 VA examination, though, he did need to be redirected. The evidence is not consistent with panic attacks more than once a week. Indeed, the evidence does not support a history of panic attacks during the claim period. The Veteran reported in 2009 that he had one panic attack in 2007 and denied panic attacks in 2012. The evidence is not consistent with impaired judgment. Judgment was reported as adequate in February 2012. Addressing the criterion of difficulty in understanding complex commands and impaired abstract thinking, the Veteran has urged in his Notice of disagreement that he has trouble completing simple tasks and forgets what he is doing halfway through the project. However, the February 2012 VA examiner and the April 2009 examiner noted no impairment of thought process or communication and no evidence of a thought disorder. Although the examiner in April 2009 noted mild memory loss issues described by the Veteran as forgetting to do tasks and take medication on occasion, the February 2012 examiner noted he was oriented and intact as to cognitive function. In addition, VA outpatient treatment records show that the Veteran was oriented and alert. These findings indicate no impairment in thinking that would cause the inability to understand commands. The evidence overall is not consistent with more than mild occasional impairment of short term memory. It is inconsistent with impairment of long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks). Although the above contentions of the Veteran are noted, the outpatient treatment record reflects no memory problems and none are noted in February 2012. The problems noted in the April 2009 examination are mild and self-reported, and do not rise to the level of more than mild short term memory impairment. Moreover, even assuming short-term memory impairment is shown to a mild degree, long-term memory impairment is not. The Board interprets this criterion as requiring both types of memory impairment. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). With respect to difficulty in establishing effective work and social relationships, the evidence prior to the February 2012 examination paints a different picture than the evidence subsequent to it. In the 2009 examination report, the Veteran reported he tended to isolate himself but then reported he loved being around people. He reported that he gets along well with his family except when depressed, enjoys helping people, church and social activities. Nonetheless, as of the February 2012 examination, the Veteran does show difficulties in establishing effective work and social relationships. He reported that he had recently moved to Colorado at God's direction, had no friends and was essentially homeless. He indicated that the Devil was trying to take him over in Kansas City. He was reportedly isolating himself. Similarly, the evidence prior to February 24, 2012 is more consistent with depressed mood as contemplated by the 30 percent criteria, as opposed to the disturbances of motivation and mood contemplated by the 50 percent criteria. The Veteran's mood had been evaluated as depressed but also positive. As of February 2012, however, the Veteran reported a higher level of depression ('12 out of 10'), low self-esteem and worthlessness. He reported he was depressed because it was difficult to live due to his medical problems which prevent him from getting a job. The Board concludes that as of February 24, 2012, he demonstrated disturbances of motivation and mood. The Board again acknowledges that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this case, the record does not show that the Veteran's psychiatric disability is manifested by symptoms that are not contemplated by the rating criteria for a 30 percent rating for the period prior to the February 2012 examination. Based on the medical evidence of record, the Board finds the type and degree of symptomatology contemplated by a 50 percent disability rating is not shown prior to February 24, 2012. Prior to that date, his main symptoms are depressed mood, chronic sleep impairment and mild memory loss. As of the date of the February 24, 2012, examination, however, the Veteran's psychiatric symptoms more nearly approximate the criteria for the higher, 50 percent rating. In this regard, he has demonstrated disturbances of motivation and mood and difficulty in establishing effective work and social relationships. His level of depression had increased. The Board finds that the lay statements provided in support of the claim in August 2012 also indicate an increase in depression which supports a 50 percent rating. However, the criteria for a rating in excess of 50 percent have not been met at any time. The Veteran has not demonstrated deficiencies in most areas to include suicidal ideation, obsessional rituals which interfere with routine activities, or illogical, obscure, or irrelevant speech. There has been no report of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. There has been no impaired impulse control such as unprovoked irritability with periods of actual violence; the Board finds the Veteran's assertion as to intermittent abuse of substances is not an impulse control manifestation. There has been no noted spatial disorientation, neglect of personal appearance and hygiene or difficulty in adapting to stressful circumstances (including work or a worklike setting). Although he has problems in his relationships, he has not demonstrated an inability to establish and maintain effective relationships. For example, he noted in February 2012 that he was receiving help from his father's family and that he was getting to know his adult daughter. The Veteran also has not demonstrated total occupational and social impairment as contemplated by a 100 percent scheduler rating for psychiatric disability. He has not been shown to demonstrate gross impairment in thought processes or communication, persistent delusions or hallucinations. He has not shown grossly inappropriate behavior, persistent danger of hurting self or others or intermittent inability to perform activities of daily living. He has not been noted to demonstrate disorientation to time or place, nor has he shown memory loss for names of close relatives, own occupation, or own name. In making the above determination, the Board has considered the Veteran's Global Assessment of Functioning (GAF) scores. GAF scores are based on a scale reflecting "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown , 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) ([citing the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. The 2009 VA examiner assigned the Veteran a GAF score of 65. The February 2012 VA examiner assigned a GAF score of 55. The Board notes that GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF of 61 to 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. Here, the GAF scores assigned appear to reflect symptomatology fairly consistent with the disability picture painted by the above-discussed objective findings. The objective findings show no flat affect and circumstantial speech, or occasional panic attacks, but do indicate depressed mood. The 65 is consistent with a 30 percent rating prior to February 24, 2012, while the 55 is consistent with a 50 percent rating, and no more, as of that date. As such, staged ratings are warranted. Knees Service connection was granted for bilateral degenerative changes of the knees with chondromalacia in a June 1982 decision. Currently, the left knee is rated 10 percent, effective from December 8, 2000, and the right knee is rated 10 percent effective from June 23, 1999. VA treatment records from March 2008 through August 2009 reflect complaints of chronic pain including knee pain. A March 2009 VA examination record reflects the Veteran's complaints of bilateral knee pain, stiffness, weakness, warmth, locking, instability, swelling, giving way, fatigability and lack of endurance. Treatment was with pain medication, ointment and hot baths. Medication helped but sometimes made him sleepy. Flare ups occurred in cold weather, rain, or when walking short periods of time. He was not able to do anything when he got pain off and on. He used a cane and knee braces when the knees lock up and jump out of socket. He described that the "bone jumps out of place" and locks 3 to 4 times a month. His knees would swell and feel like they were on fire. Physical examination of the knees showed no ankylosis. Range of motion was 0 to 100 degrees flexion of the left knee and 0 to 85 degrees flexion in the right knee. Extension was 0 degrees bilaterally. Varus/valgus, anterior and posterior cruciate ligaments were normal bilaterally. McMurray's test was negative bilaterally. The right knee showed pain with the initial range of motion testing. The left knee demonstrated effusion, and both knees demonstrated guarding of movement. On repetition, the left knee range of motion remained 0 to 100 degrees flexion, while the right knee was 0 to 70 degrees. Again, pain was present in the right knee only. The Veteran walked with a slight limp but did not wear a brace. The feet demonstrated an unusual shoe wear pattern. The diagnosis was degenerative changes bilateral knees, with chondromalacia. The Veteran reported it was hard to do things around the house such as go to the basement to do laundry. He has to go down the stairs backwards. He used to own a business and also worked as a painter in the past. The Veteran was afforded a VA orthopedic examination for his knees in February 2012. The Veteran reported that flare-ups of constant pain and effusion occurred three times per month. These lasted five to seven days, the pain was 10 out of 10, and he had to stay off his feet. They were treated with tramadol. Range of motion in the right knee included flexion to 100 degrees, with evidence of pain at 90 degrees. Extension was to 0 degrees. Left knee flexion was to 115 with pain at 100 degrees. Extension was to 0 degrees. Although repetitive testing did not result in changes to range of motion, functional loss was described as less movement than normal and pain on movement for both knees, with swelling in the right knee. There was bilateral tenderness. Muscle strength and joint stability was normal bilaterally. There was no evidence of dislocation and subluxation of either patella. The examiner noted that the Veteran was unable to squat and that he could walk for 10 to 15 minutes, stand for 15 to 20 minutes, and sit for 20 minutes before he had to take a break and move. The three lay statements indicate that the Veteran cannot work as he would like due to his orthopedic problems including his knees. The preponderance of the evidence is against a rating in excess of 10 percent for either knee. The Board points out that while the Veteran has reported giving way, and that he uses a brace and occasionally uses a cane, neither knee has documented objective evidence of instability or recurrent subluxation. The knee has not been shown to give way while on examination. Furthermore, the medical evidence reflects clinical findings of no laxity or instability, and as such a rating under DC 5257 for instability is not warranted. Additionally, none of the range of motion tests for either knee, to include after repetitive motion, have shown that the Veteran has limitation of extension at all. Moreover, flexion has never come close to being limited to 45 degrees or less, even after repetitive motion, for either knee. While the Veteran has reported experiencing severe flare ups, there is no objective evidence indicating that he has sufficient limitation of motion during such flare ups to warrant more than the 10 percent rating currently assigned for limitation of motion. The DeLuca criteria have been considered in this regard. Weakened movement, excess fatigability, and incoordination have not been noted to cause limitation in excess of that contemplated by the 10 percent rating. Judging from the degree of limitation of motion, essentially normal endurance, minimal functional loss due to pain, and pain on use noted on examinations, the Board finds that there is no basis for an increased rating under the provisions of 38 C.F.R. § 4.45. The Board has considered whether a higher or separate rating is warranted on any other schedular basis but has determined that it is not. In this regard, the Board notes that there is no evidence of ankylosis, malunion, or nonunion, genu recurvatum or semilunar cartilage removal or dislocation with locking, pain and effusion. In addition, while episodes of "locking," pain, and effusion have been subjectively reported by the Veteran, these have not been noted in the treatment record nor have they been objectively documented on examination, or otherwise indicated by the medical evidence. The lay statements show that the Veteran has to take breaks during the day due to his multiple orthopedic problems to include his hand, neck, back and knee problems, and that these have a mental component as well. While they are credible on their face, they are general in nature in that they describe the overall affects of his multiple disabilities. Thus they do not provide evidence that support a higher rating for either knee under VA's rating criteria. Additional Consideration Consideration has been given to assigning an additional staged rating to MDD, or a staged rating to either knee; however, at no time during the period in question have the disabilities warranted higher ratings than those reflected in this decision. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also has considered whether this case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration based on any of the three disabilities. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As discussed above, the Veteran's knee disabilities are manifested by symptoms productive of limitation of motion and pain. The MDD is manifested by depressed mood and occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. These manifestations are contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. ORDER Prior to February 24, 2012, an evaluation in excess of 30 percent for major depressive disorder is denied. As of February 24, 2012, an evaluation of 50 percent, and no more, for major depressive disorder is granted, subject to the laws governing the award of monetary benefits. An evaluation in excess of 10 percent for degenerative changes of the left knee with chondromalaicia is denied. An evaluation in excess of 10 percent for degenerative changes of the right knee with chondromalaicia is denied. REMAND The RO's August 2009 rating decision on appeal also denied TDIU. In October 2009, the Veteran filed a notice of disagreement contesting this decision with respect to the issues of increased ratings for major depressive disorder and knee disabilities, and the RO issued a statement of the case as to those issues. The Veteran filed a substantive appeal in March 2010 in which he stated that these three disabilities cause him to struggle with maintaining employment. Additionally, in August 2012, the Veteran submitted lay statements relevant to the claim for TDIU, along with a waiver of RO consideration. These indicate that the Veteran has become depressed and unable to work due in part to his knee problems. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. TDIU is part and parcel of the increased rating claims on appeal. As the RO has not yet issued a supplemental statement of the case addressing the issue of TDIU, the Board must remand the issue. Accordingly, this case is REMANDED to the RO or AMC, in Washington, D.C., for the following actions: 1. Undertake any indicated development for the claim for TDIU. 2. Then, readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2012). ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs