Citation Nr: 1335704 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-28 011A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left knee disorder, including as secondary to service-connected post-operative chondromalacia of the right knee. 2. Entitlement to service connection for a low back disorder, including as secondary to service-connected post-operative chondromalacia of the right knee. 3. Evaluation of post-operative chondromalacia patella of the right knee, rated as 10 percent disabling prior to December 9, 2009. 4. Evaluation of post-operative chondromalacia patella of the right knee, limitation of flexion, rated as 20 percent disabling from December 9, 2009 to July 13, 2012. 5. Evaluation of post-operative chondromalacia patella of the right knee, limitation of flexion, rated as 30 percent disabling since July 13, 2012. 6. Evaluation of limitation of extension, chondromalacia patella of the right knee, initially rated as noncompensable. 7. Evaluation of major depressive disorder, initially rated as 70 percent disabling prior to July 3, 2012. 8. Entitlement to a separate rating for recurrent subluxation or lateral instability of the right knee. 9. Entitlement to a total rating for compensation on the basis of individual unemployability prior to July 3, 2012. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to October 1981 and from January 1982 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A September 2007 rating decision denied an increased disability evaluation for chondromalacia patella of the right knee and denied service connection for the left knee and low back disorders. A total rating for compensation on the basis of individual unemployability (TDIU) was also denied. In March 2009, the Veteran was granted service connection for depression; a 30 percent disability evaluation was assigned, effective February 14, 2008. Another March 2009 rating decision revised the effective date to February 11, 2008. An August 2011 rating decision and September 2011 supplemental statement of the case increased the Veteran's disability evaluation for his major depression to 70 percent disabling, effective February 7, 2008. A September 2011 rating decision increased the rating for the Veteran's right knee chrondromalacia to 20 percent disabling, effective December 9, 2009; a noncompensable disability evaluation was also provided for a limitation of extension of the right knee, effective December 9, 2009. A July 2013 rating decision also granted a 100 percent disability evaluation for major depression, effective July 3, 2012 and increased the disability evaluation for chondromalacia patella of the right knee to 30 percent disabling, effective July 13, 2012. The Veteran continued to disagree with the ratings assigned; therefore, the grant of a higher rating is not a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Virtual VA claims file has been reviewed. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. Chondromalacia of the left knee is attributable to service. 2. Lumbar strain with mild disc space narrowing at L4-5 is attributable to service. 3. Prior to December 9, 2009, post-operative chondromalacia patella of the right knee was manifested by degenerative changes, painful motion, and limited motion; remaining flexion was better than 45 degrees, despite a tear of the medial meniscus. 4. From December 9, 2009 through April 18, 2011, post-operative chondromalacia patella of the right knee was manifested by osteoarthritis with limitation of flexion to 30 degrees. 5. Effective April 19, 2011, post-operative chondromalacia patella of the right knee was manifested by painful motion with restriction of flexion to 19 degrees. 6. Since July 13, 2012, post-operative chondromalacia patella of the right knee was manifested by limitation of flexion to less than 15 degrees. 7. Limitation of extension, chondromalacia patella of the right knee, is to 5 degrees. 8. The Veteran has mild right knee instability. 9. Throughout the initial rating period prior to July 3, 2012, the Veteran's major depressive disorder has been characterized by occupational and social impairment with difficulties in most areas, such as work, family relations, judgment, and mood, due to symptoms such as depression, irritability, impaired impulse control, and difficulty in adapting stressful circumstances. CONCLUSIONS OF LAW 1. Chondromalacia of the left knee was incurred in peacetime service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Lumbar strain with mild disc space narrowing at L4-5 was incurred in peacetime service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for a disability rating higher than 10 percent for post-operative chondromalacia patella of the right knee have not been met for the rating period prior to December 9, 2009. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2013). 4. The criteria for a disability rating higher than 20 percent for post-operative chondromalacia patella of the right knee, limitation of flexion, have not been met for the rating period from December 9, 2009 through April 18, 2011. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2013). 5. Effective April 19, 2011, post-operative chondromalacia patella of the right knee is 30 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2013). 6. The criteria for a disability rating higher than 30 percent for post-operative chondromalacia patella of the right knee, limitation of flexion, have not been met for the rating period since July 13, 2012. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2013). 7. The criteria for an initial compensable disability rating for limitation of extension of the right knee have not been met for the rating period on appeal. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2013). 7. The criteria for a separate 10 percent disability rating for mild instability of the right knee, post-operative chondromalacia patella of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). 8. The criteria for an initial disability rating in excess of 70 percent for major depression for the period prior to July 3, 2012 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in March 2007 and June 2008, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and increased disability ratings, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claims for service connection of a left knee disorder and a low back disorder. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Veteran was also afforded VA examinations responsive to the claims for increased ratings. The examination reports contain all the findings needed to rate the Veteran's service-connected right knee chondromalacia patella, major depression, and limitation of extension of the right knee, including history and clinical evaluation. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The Veteran's appeal for higher evaluations is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2012 VA examinations, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his right knee disorders and major depression worsened since the July 2012 VA examinations; he merely asserts entitlement to a higher disability evaluations for the rating periods prior to those examinations. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that these disabilities worsened since the most recent VA examinations, or since the most recent VA treatment records. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that any examination is inadequate to decide the claims being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service treatment records show that the Veteran was treated for left knee and low back complaints during service. The enlistment examination and report of medical history in September 1978 indicates that the Veteran had no symptoms or diagnoses related to his left knee and back. The Veteran was treated for his left leg in June 1980; he was treated for swelling of the left leg from the distal aspect of the patella down to the foot, with a pustile on the anterior aspect of the left patella. The diagnosis was cellulitis. He was also treated for left knee pain in July 1980; examination showed full range of motion and intact ligaments, without effusion. X-rays were normal and the diagnosis was chondromalacia patella. He was treated for bilateral chondromalacia patella in September 1981. In April 1982, he was treated for complaints of pain of the left anterior distal portion of the leg, with swelling, without trauma; the diagnosis was hematoma in the anterior tibial fascia. In December 1982, he was seen for bilateral chondromalacia patella. The Veteran sought treatment for his low back in February 1980. At that time, he complained of stabbing pain related to gastroenteritis. He was treated again in January 1981, for complaints of stiffness and soreness; examination showed good range of motion and muscle spasm. The assessment was muscle strain and spasm. In October 1982, he had low back pain with radiation to the right leg; the diagnosis was minimal spasm. In February 1984, he was treated for complaints of low back pain. He reported that he had a history of back pain for 7 days, which worsened to sudden severe back pain while playing basketball, which prevented full straightening or walking comfortably. The assessment was paraspinous muscle spasm. Approximately a week later, he was seen again, following a fall on the back. He complained of severe low back pain. The diagnosis was left paraspinal muscle strain. The Veteran's September 1981 discharge examination showed a diagnosis of bilateral chondromalacia of the patella. There were no related complaints or findings at the Veteran's January 1982 and December 1984 military examinations. An April 1991 VA examination report indicates complaints of bilateral knee pain and weakness, with a history of treatment for chondromalacia patella bilaterally, as well as low back pain. Treatment records from Dr. Yoder, dated October 1986 to July 1994 indicate that the Veteran was treated for bilateral knee pain, right worse than left. He had bilateral chondromalacia. In May 1990, he had synovitis of the left knee. A letter from Dr. Lai, dated December 2006, indicates that the Veteran reported a history of left knee pain since 2001 and low back pain since the 1990s, without a history of injury. Following an examination, the impression was left knee pain and low back pain secondary to arthritis of the right knee. VA treatment records dated November 2006 through May 2007 indicate that the Veteran complained of bilateral knee pain and low back pain. An April 2007 VA treatment record shows that the Veteran had a history of diffuse arthralgia, with bilateral chondromalacia patella. A January 2007 x-ray showed mild disc space narrowing at L4-5 and post-traumatic degenerative changes of the left knee. A June 2008 letter from a VA nurse practitioner indicates that the Veteran has been treated for chronic back and knee pain. VA treatment notes from January 2009 through March 2009 indicate complaints of back pain. The Veteran was afforded a VA examination in July 2012. According to the report, the Veteran has arthritis of the knees. No diagnosis was provided as to the Veteran's back, but limitation of motion was noted. The examiner opined that the Veteran's low back and left knee disorders were less likely than not proximately due to or the result of his service-connected right knee disabilities. The Board finds that the medical evidence of record supports the Veteran's contention that his left knee disorder and low back disorder are related to service. The Board finds that the Veteran's onset of chondromalacia patella of the left knee manifested in service and has continued since that time. Likewise, the Veteran was seen in service for complaints of low back pain and has been diagnosed with degenerative changes of the left knee and lumbar spine. Moreover, although the Veteran's current disc space narrowing of the lumbar spine was not shown during service or within a year thereafter, the Veteran was treated on multiple occasions for lumbar strains and spasms, and sought treatment for his back and left knee consistently in the years since service. He also credibly reported a lengthy history of complaints and treatment for his left knee and low back. More importantly, this Judge finds the Veteran's report of an in-service onset to be credible, and supported by the evidence of record. Therefore, the Board finds that service connection for chondromalacia of the left knee and lumbar back strain with mild disc space narrowing at L4-5 is warranted. Disability Evaluations Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has materially changed and stage ratings are warranted. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Right Knee Chondromalacia Patella The Veteran's post-operative chondromalacia patella of the right knee is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5010-5260. Hyphenated diagnostic codes are used when an additional diagnostic code is required to identify the basis for the assigned rating. 38 C.F.R. § 4.27. Under DC 5010, traumatic arthritis is rated as degenerative arthritis under DC 5003. Under DC 5003, degenerative arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. The appropriate diagnostic codes for the knee joint are DCs 5260 and 5261, applicable to limitation of flexion and extension of the leg, respectively. Under DC 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under DC 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). As will be discussed below, the Veteran is in receipt of a separate, noncompensable disability evaluation for his limitation of extension. In VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. A 10 percent disability evaluation is warranted for slight recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 20 percent disability evaluation is warranted for moderate recurrent subluxation or lateral instability of the knee. Id. For a 30 percent disability evaluation, there must be severe knee impairment, with recurrent subluxation or lateral instability. Id. In this case, the Veteran was granted service connection for chondromalacia of the right knee in an October 1987 rating decision; at that time, the Veteran's right knee was rated as 10 percent disabling, effective July 21, 1987, pursuant to Diagnostic Code 5257 for instability. The Veteran filed a claim for an increased disability evaluation on January 16, 2007, and in a September 2007 rating decision, the RO continued the Veteran's 10 percent disability evaluation, but found that the Veteran's post-operative chondromalacia patella of the right knee was more appropriately evaluated under Diagnostic Codes 5010-5260. The Board observes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). However, the Veteran's 10 percent disability evaluation for his post-operative chondromalacia patella of the right knee was in effect for 20 years effective July 21, 2007 and was thus considered protected. See 38 C.F.R. § 3.951(b) ("A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud."). In Murray v. Shinseki, 24 Vet. App. 420 (2011), the Court found that, if a veteran has a protected rating under a specific diagnostic code, VA cannot reclassify the disability by assigning the same evaluation under a different diagnostic code if the effect is to reduce the protected rating, even while maintaining the same evaluation based on different manifestations of the disability. In Excess of 10 Percent Prior to December 9, 2009 VA treatment notes dated in 2007 indicate that the Veteran has a history of diffuse arthralgia, with a diagnosis of post-operative chondromalacia and complaints of joint pain. A January 2007 VA treatment note indicates that there were degenerative changes of the right knee. A July 2007 VA examination report indicates that the Veteran related that he wears a right knee brace and walks with a cane or uses a wheelchair. He complained of constant knee pain, swelling, and instability of the right knee. A history of three right knee surgeries was noted. Examination showed tenderness, with flexion to 96 degrees, with pain beginning at 84 degrees; he had full extension. Ligaments were intact, but he had pain with stretching of the lateral collateral ligament and the ACL. Quadriceps strength was 1/5, hamstring strength was 3/5. He could toe raise and rock back onto his heels, but could not balance on his right leg. He walked with an antalgic gait, favoring the right leg. X-rays of the right knee were negative, but an MRI showed mild osteoarthritis with the absence of hyaline cartilage over the condyles, and a tear of the medial meniscus with a 9 mm parameniscal cyst anterior within the Hoffa fat pad. His patella was low, and there was an area of bone bruising on the anterior aspect of the lateral tibial condyle. The impression was chondromalacia of the patella with meniscal tears, status-post arthroscopic surgery with degenerative joint disease of the right knee. After a review of the evidence, the Board finds that the Veteran's post-operative chondromalacia patella of the right knee most nearly approximates the criteria for a 10 percent disability evaluation for the period prior to December 9, 2009. The current evaluation contemplates pathology productive of painful motion. The evaluation would also be consistent with limitation of flexion to greater than 45 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees. As will be discussed below, the Veteran receives a separate evaluation for limitation of extension. The Veteran does not have flexion of the right knee functionally limited to 30 degrees as required for a 20 percent rating (Diagnostic Code 5260). VA treatment records and examination reports clearly indicate that the Veteran experienced painful motion of the right knee; the MRI results reflect a tear of the meniscus. At the July 2007 VA examination, the Veteran complained of pain but had flexion to greater than 45 degrees on the right. VA considers "full" range of motion for the knee to be from 0 to 140 degrees (full extension to full flexion). See 38 C.F.R. § 4.71, Plate II. No lay or medical evidence suggests that flexion is functionally limited to 30 degrees. Further, as will be discussed below, the Veteran is already rated for the meniscal tear that was shown on MRI under his primary disability of the knee; the Veteran's limitation of motion is the result of his meniscal tear. The Board accepts the lay evidence that he has pain and stiffness. However, such evidence does not establish that flexion is functionally limited to less than 45 degrees prior to December 9, 2009. There is no indication that he has additional functional impairment, above and beyond the 10-percent level for post-operative chondromalacia of the right knee, limitation of motion, which would support a higher rating for the period prior to December 9, 2009. In this regard, the Board points out that the Veteran's VA examination report was negative for objective evidence of incoordination, weakness or excess fatigability. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. Although there was limited and painful motion, his pain did not significantly inhibit his range of motion or otherwise create functional limitations beyond that which is currently contemplated by the rating criteria; he had flexion beyond 45 degrees. As a result, his current 10 percent rating for post-operative chondromalacia of the right knee, limitation of flexion adequately compensates him for the extent of his pain. In Excess of 20 Percent from December 9, 2009 to July 13, 2012 The Veteran's post-operative chondromalacia patella of the right knee, limitation of flexion, was increased to 20 percent disabling effective December 9, 2009 on the basis of the Veteran's complaint of severe pain and x-ray evidence of degenerative changes of the right knee at a December 9, 2009 VA orthopedic consultation report. In particular, a December 2009 VA orthopedic consultation report indicates that the Veteran complained of worsening right knee pain; he reported using knee braces, anti-inflammatory medication, and cortisone injections without relief. The VA physician noted that the Veteran's knee was completely extended, and that he had significant pain with flexion beyond 30 degrees. There was medial joint line tenderness but no patellofemoral tenderness. The Veteran's knee was stable to varus and valgus testing. X-rays showed mild osteoarthritis of the right knee with slight joint space narrowing on the medial side and significant patella baja. The assessment was that the Veteran's severe right knee pain and inability to flex his knee did not correspond to the x-ray findings of osteoarthritis. A May 2010 VA treatment note indicates that a MRI showed tear of the medial meniscus, pronounced posteriorly, and a probable tear of the lateral meniscus with adjacent meniscal cyst. There were degenerative changes, with noticeable irregularity of the articular cartilage most pronounced at the medial joint compartment. A July 2010 VA orthopedic consultation note indicate that the Veteran uses a cane for his right knee and spine. He reports that cortisone injections and anti-inflammatories provide mild to modest relief. Examination did not show effusion or pain with patellar grind. He was unable to do straight leg raising due to pain; he had tenderness to palpation of the medial and lateral joint lines. There was fairly significant knee pain past 30 degrees flexion, but no instability with varus or valgus stress; there was no laxity with anterior posterior Lachman's testing. X-rays showed mild degenerative changes and patella baja; MRI showed degenerative changes of the menisci. The impression was primary right knee pain of the anterior aspect, likely due to patella impinging on the notch due to patella baja. The Veteran also has degenerative changes of the cartilage and menisci. An April 19, 2011 VA joints examination report indicates that the Veteran complained of right knee pain, discomfort, weakness, stiffness, and instability. The Veteran complained of diminished flexion, use of knee braces, and flare-ups with increased activity and changes in the weather. The VA examiner did not review the Veteran's claims file and indicated that passive of range of motion was not performed, as the Veteran reported pain after such testing at a 2007 VA examination. The Veteran complained of severe pain with light touch over the pre- and para- patellar regions. Examination showed that the Veteran ambulated with a cane and demonstrated pain with movement of the knee. There was no warmth, crepitus, or effusion of the knee. Drawer, Lachman, and McMurray testing were not possible due to guarding and complaints of pain by the Veteran. Range of motion of the right knee was from 5 degrees extension to 19 degrees flexion. X-rays did not show joint effusion; the quadriceps and patellar tendons were normal. There was no fracture or dislocation. MRI showed a moderate degree of osteoarthritis, without effusion, but with an oblique tear of the posterior horn of the medial meniscus and a small tear of the anterior lateral meniscus. There is chondromalacia patella of the medial patellar facet. The diagnosis is moderate osteoarthritis of the right knee, tear of the posterior horn of the medial meniscus of the right knee, and tear of the anterior horn of the lateral meniscus of the right knee. The VA examiner opined that the Veteran had significant limitation of motion compared to a 2007 VA examination, with apparent locking, likely related to his meniscal tears and/or post-operative scarring and progressive arthritic changes. Throughout the rating period from December 9, 2009 through April 18, 2011, the evidence does not show that the Veteran experiences effusion or crepitus. Additionally, x-rays did not show deformity or fracture. At the December 2009 and July 2010 VA consultations, the Veteran did not have instability, warmth, laxity, or effusion; at those consultations, the Veteran had pain on motion beginning at 30 degrees. Regardless, the Board points out that the rating criteria state that a higher, 30 percent disability evaluation is not warranted where the Veteran's flexion is in excess of 15 degrees. Here, his range of flexion was to at least 30 degrees. As such, the Veteran's post-operative chondromalacia patella of the right knee, limitation of flexion, does not more nearly approximate the criteria for a 30 percent rating for the period between December 9, 2009 and July 13, 2012. See 38 C.F.R. § 4.7. There is also no indication that he has additional functional impairment, above and beyond the levels assigned. In this regard, the Board points out that the Veteran's VA examination and consultation reports were repeatedly negative for objective evidence of incoordination, weakness, abnormal movement, or deformity. See DeLuca, supra. There was also no evidence of fatigability and crepitus, despite the Veteran's complaints of pain and swelling. Likewise, his pain did not significantly inhibit his range of motion or otherwise create functional limitations beyond that which is contemplated by the assigned ratings. In particular, the VA examiners noted that there was an increase in pain upon repetitive use, but found that there was no demonstration of additional weakness, fatigability, incoordination, lack of endurance, or additional loss of motion beyond that which is contemplated by the rating criteria. As a result, his current 20 percent rating for post-operative chondromalacia patella of the right knee adequately compensate him for the extent of his pain, including insofar as its resulting effect on his limitation of flexion, for the rating period from December 9, 2009 through July 13, 2012. Since April 19, 2011 The AOJ has assigned staged ratings and the Board agrees with the staging, but not with the dates assigned. The April 19, 2011 VA examination disclosed that, due to guarding, the Veteran's flexion was functionally limited to 19 degrees. This evidence more closely approximates 15 degrees. Thus, the Veteran is entitled to a 30 percent disability evaluation for his post-operative chondromalacia patella of the right knee effective April 19, 2011. See 38 U.S.C.A. § 5110(a), (b); 38 C.F.R. § 4.7. In Excess of 30 Percent The Veteran's post-operative chondromalacia patella of the right knee was increased to 30 percent disabling effective April 19, 2011 on the basis of the Veteran's complaint of severe pain and limitation of flexion at the July 2012 VA examination. The Board has explained why a 30 percent disability evaluation is warranted as of April 19, 2011. The following analysis addresses an evaluation in excess of 30 percent. According to the July 2012 VA examination report, the Veteran complained of flare-ups with using stairs or being on uneven ground. Range of motion testing showed flexion to 5 degrees, with no limitation of extension. The Veteran reported weakened and painful movement, less movement than normal, swelling, instability. Muscle strength was 5/5 upon flexion and extension. The Veteran's loss of flexion was attributed to guarding due to chronic pain and his gait was described as altered; the Veteran used a knee brace and cane for ambulation. The Veteran's surgical scar was described as less than 39 square cm; the scar is not painful or unstable. X-rays did not show patellar subluxation. Throughout the rating period from April 19, 2011, the evidence shows that the Veteran has limitation of flexion between 19 and 5 degrees, with complaints of pain. The Board acknowledges that the Veteran complained of weakness and instability his VA examination. Here, a 30 percent disability evaluation is the highest available rating for limitation of flexion. In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of flexion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, supra; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. However, these provisions are not for consideration where, as in this case, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). If a veteran is receiving the maximum disability rating allowable for a particular disorder, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Significantly, in Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Id. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). In this case, the Veteran is receiving the maximum schedular evaluation based on limitation of motion under the general rating formula, and a higher rating requires ankylosis. The above regulations and DeLuca are therefore not for application in considering whether the Veteran is entitled to a rating higher than 30 percent under the general rating formula. The Board notes that, in any event, the July 2012 VA examiner noted that the Veteran claimed weakness, but had full muscle strength on testing; the VA examiner indicated that range of motion was limited by pain, but not by repetitive use, fatigue, weakness, lack of endurance or incoordination. Therefore, a rating higher than 30 percent is not warranted for the Veteran's post-operative chondromalacia of the right knee, limitation of motion, pursuant to the DeLuca factors. Diagnostic Code 5257 A separate 10 percent disability evaluation is warranted for instability pursuant to 38 U.S.C.A. § 4.71a, Diagnostic Code (DC) 5257. According to DC 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. The Veteran consistently complained of instability at his VA examinations. Although stability testing did not consistently confirm instability, and radiology reports were negative for evidence of subluxation, the Board finds the Veteran is competent to report such symptoms and that a 10 percent disability rating is warranted for right knee instability. In reaching this determinations, the Board notes that the RO originally assigned a 10 percent evaluation under Diagnostic Code 5257, and that such evaluation remained in effect for 20 years. As such, the Board is essentially restoring the Veteran's rating under DC 5257 for the entire rating period on appeal. See Murray v. Shinseki, 24 Vet. App. 420 (2011). Other Considerations Additionally, the Board has considered the issue of an increased rating for the entire rating period on appeal under several other diagnostic codes used to evaluate disabilities of the knee in light of the Veteran's torn meniscus. Diagnostic Code 5256 provides rating from 30 to 60 percent for disabilities involving ankylosis of the knee. Diagnostic Code 5258 provides a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5262 is used to evaluate impairments of the tibia and fibula; the highest rating under this DC is 40 percent. 38 C.F.R. § 4.71a. There is no evidence of ankylosis of the right knee joint or any impairment of the tibia or fibula of the right leg to warrant consideration of a disability rating under either Diagnostic Codes 5256 or 5262. Further, the Veteran is already rated for his meniscal tear under his primary disability of the knee, in that the Veteran's limitation of flexion and extension are due, at least in part, to his meniscal tear. When considering separate ratings under different diagnostic codes generally, VA must avoid pyramiding, i.e., evaluating the same disability under different diagnostic codes or evaluating the same manifestation under different diagnostic codes. 38 C.F.R. § 4.14. In other words, the symptoms of the torn meniscus equate to painful motion. A thorough review of the evidence does not reflect objective findings of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The Veteran provided several instances of subjective statements of locking but this was not found on the several examinations or at the time of the many outpatient entries. Moreover, the Veteran does not have effusion, and his pain is associated with his service-connected limitation of flexion. Thus, an increased rating, or separate rating under Diagnostic Code 5258 is not in order. Moreover, although the Veteran has a surgical scar, the Board notes that the July 2012 VA examiner found that the scar was not painful or unstable, and was not greater 39 square centimeters. As such, the Veteran is not entitled to a separate, compensable disability evaluation for a scar. See 38 C.F.R. § 4.118, Diagnostic Codes 7804-7805. Limitation of Extension of the Right Knee The Veteran receives a noncompensable disability rating under Diagnostic Code 5261 for limitation of extension of the right knee in accordance with VAOPGCPREC 9-2004 (2004), effective December 9, 2009. Under DC 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Here, VA treatment records and VA examination reports clearly indicate that the Veteran experienced painful motion of the right knee. However, the Veteran does not have extension limited to 10 degrees. At worst, at the April 2011 VA examination, the Veteran demonstrated extension to 5 degrees with pain; at all other VA examinations, the Veteran had full extension. The Board acknowledges that, under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. The Board accepts the lay evidence that he has pain and stiffness; however, 38 C.F.R. § 4.59 is not of assistance here, as it is intended "recognize painful motion with [a particular] joint" and not a plane of motion. In short, the evidence does not establish that extension is functionally limited to 10 degrees. Range of motion figures on the December 2009 and July 2012 VA examinations show 0 degrees extension even after repetition, notwithstanding pain on motion, and this painful motion in and of itself does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) ("pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system"). Id. at 43. See also DeLuca, supra. As such, the Board does not find that the Veteran is entitled to an increased, compensable disability evaluation for limitation of extension of the right knee. Major Depressive Disorder Prior to July 3, 2012 The Veteran's major depressive disorder was initially evaluated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434. His major depressive disorder was increased to 70 percent disabling, effective February 7, 2008, which is the date of the grant of service connection. A 70 percent disability rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9434. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). See also 38 C.F.R. § 4.130. A GAF score of 41-50 indicates "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score of 51-60 indicates "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A GAF score of 61-70 indicates "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. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, __ F.3d __, __, No. 2012-7114, slip op. at 10-11 (Fed. Cir. Apr. 8, 2013); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, __ F.3d at __, slip op. at 7, 9. The Veteran submitted a November 2007 letter from Dr. S indicating treatment for depression. An October 2008 VA psychosocial assessment report indicates that the Veteran complained of depression, anger, anhedonia, fatigue, feelings of worthlessness, impaired concentration, racing thoughts, nightmares, intrusive thoughts, panic attacks, feelings of detachment, and restricted range of affect. Mental status examination showed fair grooming and hygiene, good eye contact, tense psychomotor activity, loud speech, and dysphoric mood. Thought processes were goal directed. He had intact memory, and good judgment and insight. The Veteran was alert and oriented, and there was no evidence of delusions or hallucinations; there was also no indication of suicidal or homicidal ideations. The VA examiner noted that the Veteran had a history of incarceration from 2000 to 2006, and that his nightmares and intrusive thoughts were due to prison abuse. The Veteran reports that he is married, but lives alone as he prefers social isolation. He also reported that he is unemployed, and has not been employed full time since his Navy service ended in 1985. The assessment was depression, rule out PTSD, and a GAF score of 50 was assigned. The Veteran was afforded a VA examination in February 2009. According to that report, the Veteran did not seek mental health treatment until 2007, but that a review of the Veteran's history showed a 40 year history of depression. The Veteran reported that he experienced extreme ups and downs, and that the downs involve "crashing" with loss of interest, suicidal thoughts, and anger. Upon mental status examination, he was alert, oriented, and mostly cooperative, with a frustrated/angry tone. Eye contact, attention, and comprehension skills were fair, as was his hygiene. His mood was dysthymic with angry tones, and his affect was limited to the depressive range. His thought processes were focused, logical, and generally rational. There was no abnormal speech or behavior. His memory was good, insight was fair, and judgment was fair to good. He denied hallucinations, but stated that he believed there was a national conspiracy against the poor. He denied panic or full obsessive compulsive behaviors, but he did endorse some poor impulse control. The assessment was bipolar II disorder and mood disorder due to knee problem resulting in decreased physical functioning, with a GAF score of 61 for his mood disorder due to knee, and 51 due to his bipolar II disorder. The VA examiner noted that the Veteran reported that his physical problems make him unemployable, and cause some decrease in his ability to enjoy any social (physical) activities, but that it has not interfered with social relationships. The VA examiner stated that the Veteran's symptoms of depression were mild, with only mild impairment due to the knee problem; the VA examiner pointed out that the Veteran is married, participates in church activities, and cares for a young child. The VA examiner also noted that the Veteran's mood swings are more disabling, but are not caused by the knee disorder. VA treatment records dated January 2009 through March 2009 show individual and group treatment. A January 2009 individual assessment indicates that the Veteran complained of depression, irritability, and social isolation. He indicated that he had been incarcerated as a result of accusations of sexual molestation of children. Mental status examination showed that the Veteran had appropriate hygiene and grooming, a cooperative demeanor, and good eye contact. Psychomotor activity was normal. Speech was non-pressured and fluent, logical, and goal-oriented, but his mood is depressed and his affect was flat. No suicidal or homicidal thoughts were elicited; insight and judgment were normal and there were no thought or perceptual disturbances were seen. He was alert and oriented and there was no flight of ideas. The assessment was depressive disorder and a GAF score of 64 was assigned. VA treatment records dated March 2009 through May 2010 indicate that the Veteran experienced uncontrolled outbursts with his wife and child; he denied suicidal or homicidal ideation, as well as aggressiveness. Upon evaluation in April 2009, he was depressed and irritable, with erratic sleep and appetite, poor motivation and energy, and impaired concentration and memory. His hygiene, grooming, and eye contact were fair. His psychomotor activity was normal, but his demeanor was cold. His speech was not pressured; it was logical, fluent, and goal-directed. His affect was full and appropriate despite his mood. Insight and judgment ware normal, and there were no thought or perceptual disturbances; he was alert and oriented and reality testing was normal. The assessment was depressive disorder; a GAF score of 52 was assigned. In October 2009, the Veteran reported that he was afraid of open spaces, closed spaces, and heights; he also complained of nightmares of the abuse he encountered while incarcerated. He denied suicidal or homicidal ideations and hallucinations, but complained of helplessness. A November 2009 behavioral health assessment indicates that the Veteran complained of depression and anger problems. A clinical social worker's report indicates that the Veteran has a low mood and nightmares, which he is trying to improve his mood and decrease his anger and irritability. A January 2011 VA treatment note indicates that the Veteran has a history of mood disorder with agoraphobia, claustrophobia, and acrophobia, but that the Veteran reported that he was doing well. A behavioral health assessment report states that the Veteran had a fair mood, with daily irritability related to pain. He reported good appetite but disrupted sleep. He was calm and pleasant, with insight into his stress symptoms and functioning, but had little insight into his own contributions to his daily stress. The Veteran was afforded another VA examination in April 2011. According to that report, the Veteran acknowledged periods of depression, low energy, feelings of worthlessness, difficulty concentrating, and irritability. Examination showed that the Veteran had good hygiene, but poor grooming. He was restless and had hesitant speech. His attitude was cooperative, attentive, suspicious, irritable, and guarded. His mood was anxious and agitated. He was oriented, but he was evasive as to thought process. There was no evidence of hallucinations or delusions, and he had good judgment. The VA examiner noted that the Veteran complained of hypervigilance related to his prison experience and being raped as a child. He had normal memory for remote events and mild impairment of his recent and immediate memory. Psychological testing was inconclusive as to whether a diagnosis of major depression versus bipolar disorder was warranted. Regarding employment, the Veteran reported difficulty obtaining employment since his imprisonment, and that he has not been employed for 10 to 20 years; the Veteran related that he believes that his anxiety and depression would interfere with his ability to work productively. The diagnoses were mood disorder and anxiety disorder, not otherwise specified. The VA examiner noted that the Veteran's agoraphobia and hypervigilance are related to the anxiety disorder and that his depression, hyperactivity, and irritability are related to his mood disorder, but that there is insufficient information to confirm hypomanic symptoms needed for a diagnosis of bipolar disorder. A GAF score of 60 was assigned for the past year. The VA examiner noted that the Veteran did not have total occupational and social impairment due to mental disorder signs and symptoms. The VA examiner also noted that there are signs and symptoms that result in deficiencies in the areas of judgment, thinking, family relations, work, or mood, but that the Veteran's judgment was not affected. The Veteran has problems with hypervigilance and concentration, irritability affecting family relations, and chronic unemployment. The VA examiner stated that the Veteran has moderately severe symptoms of mood disorder and anxiety disorder. According to the VA examiner, the Veteran's mood disorder encompasses the Veteran's acute agitation and depressive symptoms related to his service-connected knee disorder and the Veteran's anxiety disorder symptoms are unrelated to his mood disorder and service-connected, but that it is unclear whether his mood disorder or his anxiety disorder is the cause of his functional and occupational impairments. After a review of all the evidence, lay and medical, the Board finds that the Veteran's service-connected major depressive disorder more nearly approximates the criteria for the initial 70 percent disability evaluation for the entire rating period prior to July 3, 2012. The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 70 percent evaluation takes into account the Veteran's social and occupational impairment for the entire initial rating period. Throughout the initial rating period, the Veteran's major depressive disorder has been characterized by occupational and social impairment with deficiencies in most areas, including work, family relations, thinking, and mood due to symptoms such as unprovoked irritability and difficulty in adapting to stressful circumstances. The evidence shows that the Veteran does not experience panic attacks, nor does he have obsessional rituals, impaired impulse control, delusions or hallucinations, spatial disorientation, or illogical speech or thought processes as a result of his major depressive disorder; he is alert and oriented upon examination, he does not have a hyperstartle response, and his depression and anxiety do not prevent him from functioning independently. Nevertheless, VA examiners assessed that major depressive disorder symptoms interfered with occupational functioning and social relationships for the Veteran, but do not cause total social and occupational impairment. The VA examiners and treating VA providers assigned GAF scores of 50 to 64 from 2007 through 2011, and that the most recent GAF score was 60 in April 2011 for the Veteran's major depressive disorder. A GAF score is probative, as it relates directly to a veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 51-60 contemplates moderate symptoms or moderate impairment in social or occupational functioning. See DSM-IV at 44-47. The Board notes that the Veteran's GAF scores are consistent with the symptomatology shown in contemporaneous treatment records. The GAF scores of the VA examiners and treating providers take into account all of the medical evidence of record, lay and objective, for the rating period on appeal, such that a fuller picture of the nature and history of the Veteran's major depressive disorder is provided. See 38 C.F.R. § 4.2 (2013) (it is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present). VA examination reports and treatment records indicate that the Veteran's major depressive disorder symptoms were productive of moderately severe occupational and social impairment, with reduced reliability and productivity. The Board acknowledges that the Veteran, through his representative, complained of severe symptoms and that his symptoms had increased such that his daily functioning was impaired. The Veteran complained of nightmares, anger, irritability, difficulty concentrating, memory loss, hypervigilance, and depression at his VA examinations and in seeking treatment. The Board notes that, although the level of functional and occupational impairment due solely to his major depressive disorder cannot be determined, the April 2011 VA examiner clearly indicated that the Veteran's nightmares, hypervigilance, agoraphobia, and agitation are due to his anxiety disorder due to a non-service-connected assault, and that the Veteran's irritability was influenced by both his nonservice-connected anxiety disorder and his service-connected major depressive disorder. In this case, however, these symptoms are described as moderately severe. At the April 2011 VA examination, the Veteran had depression and anxiety, but did not have suicidal or homicidal ideation, delusions or hallucinations, or panic attacks; his mood was depressed and his affect was anxious. Moreover, in February 2009, the Veteran complained of depression, sleep impairment, irritability, and difficulty concentrating. Although VA treatment notes dated from 2008 through 2011, indicate that the Veteran is alert and oriented, with appropriate speech and behavior, and without evidence of suicidal or homicidal ideation, the Veteran's insight and judgment have been fair and his grooming has been inconsistent. The VA providers and examiners also note the Veteran's symptoms, such as irritability, outbursts of anger, difficulty concentrating, difficulty adapting to stressful circumstances such as a work environment, and depression. However, the Board finds that the criteria for a disability rating of 100 percent have not been more nearly approximated for any part of the rating period on appeal. Although several of the Veteran's treating providers and the April 2011 VA examiner opined that the Veteran experiences social and occupational impairment, the evidence does not show that the Veteran experiences total occupational and social impairment due to grossly impaired thought processes, persistent delusions and hallucinations, persistent danger of hurting himself or others, or intermittent inability to perform activities of daily living, as contemplated by a 100 percent disability rating under Diagnostic Code 9434. As previously discussed, the Board acknowledges that the Veteran's major depressive disorder symptoms are suggestive of deficiencies in work, family relations, and mood. Nonetheless, as noted in the VA examination reports, and the Veteran's VA treatment records, the Veteran's functional impairments are not so severe as to impair his thought processes; there was no evidence of delusions or hallucinations and the Veteran did not have any active or passive suicidal ideation. Further, VA treatment records are negative for evidence of psychosis; the Veteran is able to communicate effectively and he is alert, oriented, and cooperative. None of the VA examination reports show impaired psychomotor activity. Significantly, the VA providers and examiners assessed that the Veteran's service-connected major depressive disorder was productive of no more than moderately severe effects on his activities of daily living. For these reasons, the Board finds that a preponderance of the evidence is against an initial disability evaluation in excess of 70 percent for major depressive disorder for the entire period. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's major depressive disorder, post-operative chondromalacia patella of the right knee, and limitation of extension of the right knee are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination reports and treatment records and which provided the basis for the disability ratings that were assigned. The Veteran primarily complained of pain, instability, and limitation of motion of his right knee, for which the assigned rating criteria adequately compensated him; these complaints were considered as part of determining his evaluations. With regard to his major depressive disorder, he complained of depression, recurrent recollections, sleep impairment, and hypervigilance, which were clearly contemplated in the currently assigned disability evaluation. In any event, the evidence does not reflect that there has been frequent hospitalization or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran alleged that his service-connected disabilities interfere with his ability to work, but he also indicated that he had difficulties finding employment due to his criminal conviction and six years of incarceration. Additionally, none of the Veteran's disabilities, standing alone, have an impact on his employment. Therefore, referral for consideration of extraschedular ratings for the Veteran's major depressive disorder, post-operative chondromalacia patella of the right knee, and limitation of extension of the right knee is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with major depressive disorder, post-operative chondromalacia patella of the right knee, instability of the right knee, and limitation of extension of the right knee, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to service connection for chondromalacia of the left knee is granted. Entitlement to service connection for lumbar strain with mild disc space narrowing at L4-5 is granted. Entitlement to a disability evaluation in excess of 10 percent for post-operative chondromalacia patella of the right knee for the period prior to December 9, 2009 is denied. Entitlement to a disability evaluation in excess of 20 percent for post-operative chondromalacia patella of the right knee, for the period from December 9, 2009 to April 18, 2011, is denied. Entitlement to a 30 percent disability evaluation for post-operative chondromalacia patella of the right knee is granted effective April 19, 2011, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a disability evaluation in excess of 30 percent for post-operative chondromalacia patella of the right knee is denied. Entitlement to a compensable disability evaluation for limitation of extension, chondromalacia patella of the right knee, is denied. A separate 10 percent evaluation for instability of the right knee is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a disability evaluation in excess of 70 percent for major depressive disorder is denied. REMAND Given that service connection is warranted for chondromalacia of the left knee and lumbar strain with mild disc space narrowing at L4-5, and that a separate 10 percent evaluation for instability of the right knee was granted, as discussed in the prior section, the Board finds that a decision on the TDIU issue must be deferred to allow the RO the opportunity to assign an evaluation for the left knee and low back disorders. Accordingly, the case is REMANDED for the following action: 1. After assigning an evaluation for the service-connected chondromalacia of the left knee and lumbar strain with mild disc space narrowing at L4-5, and an effective date for the grant of a separate 10 percent disability rating for instability of the right knee, the RO should readjudicate the issue of entitlement to a TDIU. 2. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, and provide the Veteran and his representative an opportunity to respond. 3. If, upon completion of the above action, the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs