Citation Nr: 1337220 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-02 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating higher than 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable disability rating for lumbar spine strain and unilateral right pars defect, L5. 3. Entitlement to an initial compensable disability rating for left knee strain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from September 2004 to September 2008. His service medals and decorations include the Combat Action Ribbon badge. This appeal to the Board of Veterans' Appeals (Board) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2012, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) of the Board. The Court has held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, however, the record reflects that the Veteran is currently employed as a sales associate. Although he reports pain in his low back and left knee upon prolonged standing(after three hours) requiring him to take a break at work, he has not asserted that he is unable to maintain or obtain employment on account of his service-connected disabilities. Therefore, the Board finds that a claim for a TDIU has not been raised and further discussion of such is unnecessary. FINDINGS OF FACT 1. The competent medical evidence approximates findings of occupational and social impairment with reduced reliability and productivity due to service-connected PTSD; the evidence does not show occupational and social impairment, with deficiencies in most areas. 2. The Veteran's service-connected low back disability is manifested by a strain, forward flexion of the thoracolumbar spine limited to 90 degrees, pars defect at L5, complaints of pain, objective evidence of tenderness, and difficulty with prolonged standing. There is no probative evidence of an abnormal gait, abnormal spinal contour, intervertebral disc syndrome, incapacitating episodes, or a related neurological disorder in the lower extremities. 3. The Veteran's service-connected left knee strain is manifested by normal range of motion, objective evidence of tenderness, and complaints of pain, with no evidence of recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for an initial disability rating of 10 percent, but no higher, for service-connected lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2013). 3. The criteria for an initial rating of 10 percent, but not higher, for service-connected left knee strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veteran's PTSD, lumbar spine, and left knee claims arise from his disagreement with the initial ratings assigned following the grants of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record contains the Veteran's service treatment records, VA medical evidence, and a hearing transcript. He has been afforded VA compensation examinations in conjunction with his claims on appeal. The duty to assist has been satisfied. Under 38 C.F.R. § 3.103(c)(2) (2013), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are two-fold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, during the August 2009 Board hearing, the undersigned informed the Veteran of the three issues on appeal in this case. The undersigned elicited testimony from the Veteran regarding his specific PTSD, lumbar spine, and left knee symptoms. The Veteran did not raise any new issues pertaining to the claims at the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming that there was such a deficiency, the Board finds that it did not prejudice the Veteran's claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that the issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given development of the Veteran's claim, the Board finds that any deficiency in the August 2009 Board hearing was non-prejudicial. See id. Moreover, as already stated, the Board does not find any deficiency related to the hearing officer's duties under Bryant, and none has been alleged. Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Claim for a Higher Initial Rating for PTSD The RO rated the Veteran's PTSD as 30 percent disabling, effective September 27, 2008, pursuant to Diagnostic Code 9411 of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Under Diagnostic Code 9411, 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent 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; difficulty in establishing and maintaining effective work and social relationships. Id. 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 that 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. Id. A 100 percent rating 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. Id. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Global Assessment of Functioning (GAF) scores are a scale reflecting the "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 (4th ed.), p. 32]. 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). The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R § 4.6. GAF scores are one relevant component of the Veteran's disability picture that must considered. However, they must be weighed alongside all additional relevant evidence. See, e.g., Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). In July 2009, the Veteran underwent a VA mental health examination. His appearance, hygiene, and behavior were appropriate. His orientation was within normal limits. He maintained good eye contact. His affect and mood were normal. His communication, speech, and concentration were within normal limits. Panic attacks were absent. Suspiciousness was not present. A history of delusions and hallucinations were not present. No delusions or hallucinations were observed during the examination. Obsessional rituals were absent. Thought processes were appropriate. The Veteran was able to read and understand directions. Slowness of thought was not present. He did not appear confused. Judgment was not impaired and abstract thinking was normal. The Veteran had mild memory impairment such as forgetting names, directions, and recent events. Suicidal and homicidal ideations were not present. Axis I diagnosis was PTSD with related alcohol abuse. The examiner noted that the Veteran's psychiatric symptoms were mild or transient but cause occupational and social impairment with decrease in work efficiency and occupational tasks only during periods of significant stress. Follow-up psychotherapy treatment was recommended. In early-February 2011, the Veteran called the VA and reported that he was having problems with his PTSD. In mid-February 2011, the Veteran presented to the emergency room at a VA hospital and requested a psychiatric evaluation. He was calm and cooperative. He appeared dysphoric. His affect was congruent to his mood. He reported sleeping about 4-5 hours a night and having frequent nightmares. His speech was clear and coherent. He was alert and oriented. He reported difficulty concentrating at times. The Veteran's short-term and remote memory appeared intact. His thought processes were lucid, intact, and logical. His thought content was organized and goal-oriented. He had limited insight into his PTSD. There was no evidence of psychosis, delusions, suicidal ideations, or homicidal ideations. His judgment was good. His insight was fair. Axis I diagnosis was PTSD. A GAF score of 53 was assigned. In April 2011, the Veteran underwent an initial intake session with a VA Primary Care Psychologist. The Veteran reported falling behind in his school classes due to a lack of motivation and concentration problems. He endorsed symptoms of depression and anxiety. He also had anger, memory, and sleep problems. On examination, he was cooperative and dressed appropriately. He had no psychomotor agitation or retardation. He did not display any repetitious activities. He was able to attend appropriately to conversational content. Speech rate was within normal range. He had an anxious mood and affect. He was alert and oriented. Intellect was deemed to be within the average range. His thought processes were coherent, logical, and goal-directed. There was no flight of ideas, loose associations, or thought blocking. He denied any current hallucinations or delusions. He also denied any suicidal and homicidal ideations. The Veteran's judgment and insight were within normal limits. Impression was depression not otherwise specified (NOS), sub-threshold PTSD; rule out major depressive disorder versus adjustment disorder. GAF score was 60. Also in April 2011, the Veteran was seen for an "OEF/OIF" social work screen. He reported having unresolved pain in his lower back which causes him to find little to no pleasure in leisure and recreational activities. The Veteran reported being employed part-time at a retail store. The social worker determined that case management services did not appear to be needed at the time. A review of the record shows the Veteran's reports of a depressed mood, lack of motivation, and anger. He, as a layperson, has competently and credibly reported his psychiatric symptoms. During the appeal period, the Veteran sought emergency room treatment for his psychiatric symptoms and subsequent psychotherapy. His lowest GAF score was 53 in February 2011, which is reflective of moderate symptoms or moderate difficulty in social, occupational, or school functioning. Based on the above-noted psychiatric symptomatology, the Board finds that the Veteran's psychiatric symptomatology more nearly approximates the criteria for a higher initial rating of 50 percent for the entire appeal period. However, an initial rating in excess of 50 percent is not warranted. In this regard, the evidence does not show psychiatric symptomatology indicative of a 70 percent rating, such as 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; or neglect of personal appearance and hygiene. In fact, the medical evidence shows that the Veteran has been oriented in all spheres, his speech has been coherent and goal-directed, and he has been appropriately groomed and dressed. Hallucinations, delusions are not present. Moreover, his concentration, abstract reasoning, and impulse control have been intact. Accordingly, the Board finds that the evidence supports an initial disability rating of 50 percent, but no higher, for the Veteran's PTSD. His disability has never been more severe than contemplated by a 50 percent rating, thus, staged ratings are not warranted. Claim for a Higher Initial Rating for a Lumbar Spine Disability In this case, the RO assigned an initial noncompensable rating for the Veteran's lumbar spine strain and pars defect, under Diagnostic Code 5237, which contemplates a lumbosacral strain. 38 C.F.R. § 4.71a (2013). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating requires forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2. Under Diagnostic Code 5243, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25, separate ratings of its chronic orthopedic and neurologic manifestations along with rating of all other disabilities, whichever method results in the higher rating. This code provides that a 10 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. Where a Veteran has intervertebral disc syndrome, the condition may be evaluated either based on the total duration of incapacitating episodes over the past twelve months under Diagnostic Code 5243, or by combining, under 38 C.F.R. § 4.25, separate ratings of chronic orthopedic and neurologic impairment, whichever method results in the higher rating. On July 2009 VA examination of the low back, the Veteran's posture and gait were within normal limits. There was no evidence of radiating pain on movement. Muscle spasm was absent. Spinal contour was preserved although there was paraspinal tenderness. There was no guarding of movement or weakness. Musculature and muscle tone were normal. Straight leg raising was negative, bilaterally. Lasegue's sign was also negative. There was no muscle atrophy in the limbs, or ankylosis of the thoracolumbar spine. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. Extension of the thoracolumbar spine was to 30 degrees, and flexion was to 90 degrees. Bilateral lateral flexion and rotation were to 30 degrees. There was no evidence of additional limitation of function upon repetitive use. Neurological examination of the lower extremities was within normal limits. Knee and ankle jerks were 2+, bilaterally. Peripheral nerve involvement was not evidence during the examination. There were no sensory deficits from L1-5 or S1. There were no signs of degenerative disc disease of the lumbar spine with chronic and permanent nerve root involvement. X-rays of the lumbar spine showed evidence of joint irregularity in that there is unilateral pars defect at L5 but with no evidence of subluxation. Diagnosis was lumbar spine strain and unilateral at pars defect at L5. VA x-rays of the lumbar spine taken in April 2011 showed evidence of minimal grade 1 anterolisthesis of L5 on S1 with extension, with bilateral L5 pars defects. According to an April 2011 VA occupational therapy consultation note, the Veteran reported chronic pain symptoms in his low back primarily treated with oral medications. He sought an alternate means of pain management through Transcutaneous Electrical Nerve Stimulation (TENS). A May 2011 VA physician's note shows the Veteran's report of continued back pain, particularly after prolonged periods of standing at work. He stated that he has trouble lifting weights. He prefers to not take oral pain medication and indicated that the TENS unit has not helped much. He also stated that he has been sleeping and depression has been okay. X-rays of the lumbar spine taken in October 2011 showed no instability. He was referred to the pain clinic due to the pars defects at L5. During his August 2012 hearing, the Veteran rated his low back pain as 5 to 8, on a 10 point scale. He stated that he could no longer do activities that he used to do, such as play sports and lift weights, on account of his low back pain. The Board finds that an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected lumbar spine disability. As reflected in VA examination report, treatment notes, and testimony, he has complained of pain in the low back with activities of daily living. As his lumbar spine is painful, the Board finds that, pursuant to 38 C.F.R. § 4.59 and Burton, supra, a minimum compensable rating, ten percent, is warranted. A rating higher than 10 percent, however, is not warranted. As to orthopedic manifestations, the evidence does not demonstrate forward flexion of the thoracolumbar spine less than 60 degrees; the combined range of motion of the thoracolumbar spine less than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Here, the applicable evidence shows that the Veteran exhibited forward flexion of the thoracolumbar spine to 90 degrees during the July 2009 VA examination. His combined range of thoracolumbar spine motion exceeds 120 degrees, and there is no evidence of any muscle spasms or guarding. Thus, an initial rating higher than 10 percent is not warranted for the Veteran's service-connected lumbar spine disability under the general rating formula. See Diagnostic Code 5237. As indicated, the Board has already considered and compensated the Veteran for the pain in his low back. There is no evidence of any additional limitations upon repetitive use. Overall, the Board finds that the functional loss present in his low back is adequately accounted for in the 10 percent rating assigned herein. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. The Board notes further that no medical professional has diagnosed the Veteran with intervertebral disc syndrome. Thus, Diagnostic Code 5243 is not for application. Indeed, the Veteran has not had any incapacitating episodes of low back disease having a total duration of at least 2 weeks but less than 4 weeks for a 12 month period during the appeal, and there is no evidence of any neurological impairment of the lower extremities associated with his service-connected lumbar spine disability. In sum, the Board concludes that an initial rating of 10 percent is warranted for the Veteran's service-connected lumbar spine disability for the entire appeal period. No staged ratings are warranted. Claim for a Higher Initial Rating for Left Knee Disability The RO assigned an initial noncompensable rating for the Veteran's left knee strain, effective September 27, 2008, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5024. The hyphenated Diagnostic Code indicates the use of an analogous rating using the criteria of the second part. See 38 C.F.R. § 4.27. The RO applied the criteria of Diagnostic Code 5024, which addresses tenosynovitis, by analogy. Diagnostic Code 5024 provides that tenosynovitis is rated on limitation of motion of the affected part as degenerative arthritis, which is addressed in Diagnostic Code 5003. Diagnostic Code 5003 provides that 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. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee. A noncompensable rating is warranted when leg extension is limited to 5 degrees. A 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees. Normal flexion and extension of the knee is from zero degrees to 140 degrees. 38 C.F.R. § 4.71, Plate II (2013). It is possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Diagnostic Code 5257 for subluxation/instability or under Diagnostic Code 5258-9 for cartilage impairment. Essentially, these opinions suggest that separate compensable ratings may be assigned when reported limitation of knee motion shown is compensable or when there is X-ray evidence of arthritis together with a finding of painful motion. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for impairment of the knee with slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for impairment of the knee with moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In considering the applicability of other diagnostic codes that may also be separately rated, the Board notes that Diagnostic Codes 5258-9, which concerns injury to cartilage of the knee. Under Diagnostic Code 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under Diagnostic Code 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. During a July 2009 VA left knee examination, there was evidence of tenderness. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage. There was no subluxation, locking pain, genu recurvatum, or crepitus. Range of left knee motion was from zero to 140 degrees. There was no limitation of function upon repetitive use. He was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Stability tests of the medial/lateral collateral ligaments, the anterior/posterior cruciate ligaments, and the medial/lateral meniscus ligaments were within normal limits in the left knee. Diagnosis was left knee strain with subjective pain, as well as objective evidence of tenderness. According to an October 2011 VA "SBOPC" Physician note, the Veteran reported knee pain when walking the stairs. He had some crepitus in the left knee. During his August 2012 personal hearing before the undersigned, the Veteran testified that he experiences left knee pain after prolonged standing. The Board finds that an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected left knee disability. As reflected in VA examination report, treatment notes, and testimony, he has complained of pain in the left knee with activities of daily living. As his left knee is painful, the Board finds that, pursuant to 38 C.F.R. § 4.59 and Burton, supra, a minimum compensable rating, ten percent, is warranted. An initial rating higher than 10 percent, however, is not warranted. The medical evidence shows that the Veteran has normal range of left knee motion as evidenced during the July 2009 VA examination. As the left knee is not limited to 30 degrees and extension is not limited to 15 degrees, a higher rating is not warranted under either Diagnostic Code 5260 or Diagnostic 5261. As indicated, the Board has duly considered the Veteran's reports of pain in his left knee on motion, and there is no evidence of any additional limitations upon repetitive use. Overall, the Board finds that the functional loss present in his left knee is adequately accounted for in the 10 percent rating assigned herein. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. There is also no evidence of recurrent subluxation or lateral instability of the left knee. During the July 2009 VA examination, all stability tests of the left knee yielded normal results. As moderate recurrent subluxation or lateral instability has not been shown, a higher or a separate rating is not warranted pursuant to Diagnostic Code 5257. In sum, the Board concludes that an initial rating of 10 percent is warranted for the Veteran's service-connected left knee disability for the entire appeal period. No staged ratings are warranted. Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's disabilities. His PTSD primarily consists of anger, depressed mood, and some occupational and social impairment with reduced reliability and productivity, which is contemplated in Diagnostic Code 9411. The Veteran's lumbar spine and left knee disabilities are primarily productive of painful motion, a manifestation that is contemplated in the applicable rating criteria. The Board, then, is not obligated to refer this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER For the entire appeal period, an initial 50 percent rating, but no higher, for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. For the entire appeal period, an initial 10 percent rating, but no higher, for lumbar spine strain and unilateral right pars defect is granted, subject to the laws and regulations governing the award of monetary benefits. For the entire appeal period, an initial 10 percent rating, but no higher, for left knee strain is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs