Citation Nr: 1512921	
Decision Date: 03/26/15    Archive Date: 04/03/15

DOCKET NO. 13-09 244	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2. Entitlement to an initial rating in excess of 10 percent for a low back disability.

3. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy.

4. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy.

5. Entitlement to an initial rating in excess of 10 percent for a left wrist disability.

6. Entitlement to service connection for a left knee disability.

7. Entitlement to service connection for a right knee disability.

8. Entitlement to service connection for a bilateral shin disability, to include shin splints.

9. Entitlement to service connection for a bilateral hearing loss disability.

10. Entitlement to service connection for a respiratory disorder.


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 2004 to April 2005 and from June 2008 to August 2009, with a period of Active Duty for Training (ACDUTRA) from September 1999 to January 2000.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that decision, the RO granted service connection for PTSD, a low back disability, bilateral lower extremity radiculopathy and a left wrist disability, while denying the service connection claims on appeal.

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran indicated in his March 2012 VA examinations that he was currently employed, and since then has not submitted evidence that he is unemployed due to his disabilities. Therefore, TDIU has not been raised by the record.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issue of service connection for a bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's PTSD has been manifested by depressed mood, short-term memory and concentration impairment, irritability with outbursts of anger, hypervigilance, anxiety, low frustration tolerance, social and emotional isolation, flattened or restricted affect, severe sleep impairment, disturbances of motivation and mood, persistent negative emotions and mental state, frequent nightmares and intrusive thoughts, an inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, and consistent Global Assessment of Function Scores of 45; resulting in occupational and social impairment in most areas. A total occupational and social impairment has not been shown.

2. Throughout the period on appeal, the Veteran's low back disability is manifested by disc herniation at L4-L5 and L5-S1, DDD, flare-ups, pain on movement, difficulty walking and sitting, forward flexion to 67.5 degrees at worst, a combined range of motion of 204 degrees at worst, tenderness, stiffness, flare-ups, and no further limitation after repetitive testing due to weakness, fatigability or other factors; but not by forward flexion of 60 degrees or less, a combined range of motion of less than 120 degrees, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes.

3. Throughout the period on appeal, the Veteran's service-connected left lower extremity radiculopathy is manifested by occasional or intermittent pain, normal sensation to light touch, normal reflexes, and normal muscle bulk; resulting in mild incomplete paralysis of the sciatic nerve.

4. Throughout the period on appeal, the Veteran's service-connected right lower extremity radiculopathy is manifested by occasional or intermittent pain, normal sensation to light touch, normal reflexes, and normal muscle bulk; resulting in mild incomplete paralysis of the sciatic nerve.

5. The Veteran is right hand dominant. Throughout the appellate period the left wrist disability is manifested by pain on motion, tenderness, limitation of motion in both dorsiflexion and palmar flexion without further limitation due to weakness, fatigue or other factors, pain, weakness, and stiffness; but not by favorable or unfavorable ankylosis of any type.

6. A left knee disability has not been diagnosed at any time during the pendency of this claim.

7. A right knee disability has not been diagnosed at any time during the pendency of this claim.

8. A bilateral shin disability, to include shin splints, has not been diagnosed at any time during the pendency of this claim.

9. A respiratory disability has not been diagnosed at any time during the pendency of this claim.



CONCLUSIONS OF LAW

1. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2014).

2. The criteria for an initial rating in excess of 10 percent for a low back disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2014).

3. The criteria for an initial rating in excess of 10 percent for left lower extremity radiculopathy have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2014).

4. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2014).

5. The criteria for an initial rating in excess of 10 percent for a left wrist disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2014).

6. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2014).

7. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2014).

8. The criteria for service connection for a bilateral shin disability, to include shin splints, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2014).

9. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in October 2009, prior to the initial unfavorable adjudication in June 2010. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability ratings and effective dates are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

Concerning the increased ratings claims, the appeals arise from the Veteran's disagreement with the initial evaluations 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). No additional discussion of the duty to notify as to these claims is therefore required.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in April 2010, May 2010, March 2012, and February 2014. The examinations were adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, conducted thorough medical examinations of the Veteran, and provided sufficient supporting rationales for the opinions where necessary. 

Concerning the May 2010 VA psychiatric examination, the Board notes that the examiner indicated the claims file was not made available for review. However, review of the claims file is not required in order for a VA opinion or examination to be adequate. Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 302-05 (2008). Instead, the examiner need only be apprised of sufficient facts so as to make it possible to render an informed opinion. Id. Further, with respect to increased rating claims, it is the present level of disability that is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, the examiner need only have been aware of enough facts so as to render an informed opinion concerning the current severity of the Veteran's PTSD 

Here, the examiner noted a history of the disability and a description of the current symptomatology provided by the Veteran. The examiner then conducted an objective examination. The Board finds that between the examiner's objective medical observations noted in the examination report and the Veteran's own account of the history and symptomatology of his PTSD, the examiner was informed of a sufficient number of the relevant facts to render an informed opinion as to the severity of the Veteran's PTSD. Therefore, the Board finds that the May 2010 PTSD examination report is adequate for rating purposes, despite the fact the claims file was not reviewed.

Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claims. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Increased Schedular Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran contends he is entitled to increased ratings for PTSD, a low back disability, bilateral lower extremity radiculopathy, and a left wrist disability. The Board will address the schedular rating criteria for each disability in turn, applying the general legal framework stated above.



A. PTSD

The Veteran contends he is entitled to an initial rating in excess of 30 percent for service-connected PTSD. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id.

The Veteran's PTSD is rated at 30 percent under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent rating is assigned 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 assigned 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. 

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 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th Ed. 1994) [hereinafter DSM-IV]).

Throughout the period on appeal, the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas. The Veteran has not submitted any lay statements concerning the current severity of his PTSD symptoms.

Turning to the medical evidence, the Veteran was provided with VA examinations in May 2010, March 2012, and February 2014. The May 2010 examiner noted complaints of depression, difficulty falling asleep, irritability resulting in being easily aggravated and unprovoked yelling, hypervigilance, and anxiety. On objective examination the Veteran was noted to be alert and oriented to time, place, and person. Speech was halting and eye contact was sporadic. His mood was noted to be depressed with a congruent affect, and both recent and remote memory were noted to be impaired. Hallucinations, suicidal ideation, and homicidal ideation were all noted to not be present. Thought processes were found to be intact, although insight was limited. Overall the examiner noted the symptoms to be mild to moderate, with significant suggestions of intrusive thoughts, irritability, hypervigilance, and anxiety.

The March 2012 examiner indicated that the Veteran endorsed frequent intrusive thoughts concerning his PTSD stressors. The Veteran also indicated that he works the night shift as a security guard in order to ensure that he does not have to deal with other people, and that he was fighting more often with his wife. On examination the examiner noted depression with a restricted affect. The Veteran was found to be alert and oriented to time, place, and person. The examiner noted difficulty adapting to stressful situations, disturbances of motivation and mood, an inability to establish and maintain effective relationships, and anxiety. Hallucinations, suicidal ideation, and homicidal ideation were not present. Overall the examiner determined the Veteran had social and occupational impairment with deficiencies in most areas.

The February 2014 examiner noted that the Veteran reported continued problems with irritability, anger and verbal aggression, specifically with respect to his wife, as well as difficulties with his peers and supervisors at work. On examination the examiner indicated that the Veteran was alert and oriented, but appeared slightly anxious. Affect was noted to be congruent. The examiner noted symptoms of intrusive memories, nightmares, anger, irritability with unprovoked angry outbursts, low frustration tolerance, anxiety, depressed mood, sleep disturbance, social and emotional isolation, hypervigilance, and attention, concentration and memory problems. 

The examiner also noted that the Veteran had difficulty adapting to stressful circumstances, an inability to establish and maintain effective relationships, persistent negative beliefs about himself or others, and a persistent negative emotional state. However, overall the examiner indicated that the Veteran's PTSD was characterized by occupational and social impairment due to mild or transient symptoms. No GAF score was assigned.

The symptomatology noted in the VA examinations is largely reflected in the VA treatment records throughout the period on appeal. Specifically, treatment records throughout the period reflect anxiety, depressed mood, constricted affect, frequent nightmares, insomnia, and frequent irritability with angry outbursts. Treatment records also consistently indicate that the Veteran was oriented to time, person and place, had normal thought and speech processes, and denied suicidal ideation, homicidal ideation and hallucinations.

Finally, the Veteran has been almost exclusively assigned GAF scores of 45 throughout the period on appeal, with exceptions of 46 in May 2010 and 50 in March 2013. None of the specific scores, or ranges of scores, have been outside of the 41 to 50 range. GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation or severe obsessional rituals) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV for rating purposes). GAF scores ranging from 51 to 60 reflect more 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.

The Veteran's GAF scores over the course of the appeal have fallen exclusively in the 41 to 50 range, which correlates with serious symptoms or serious impairment in social or occupational functioning. The Board notes that GAF scores are not determinative of disability rating for psychiatric disabilities, and are instead only one consideration in evaluating the overall level of disability. It is further noted that, despite consistent scores in the 41 to 50 range, the Veteran does not display most of the symptoms listed as representative of that range, such as suicidal ideation. However, in light of the consistency of the Veteran's GAF scores based on his consistently noted symptomatology, the Board finds that the scores in this case are highly probative of the current severity of the Veteran's overall disability picture.

Based on this evidence, the Board finds that the Veteran's disability picture more nearly approximates that contemplated by the 70 percent rating. See 38 C.F.R. § 4.7. As shown from the examination reports and treatment records, the Veteran does not have several of the symptoms associated with a 70 percent rating, although difficulty with stressful situations and an inability to maintain effective relationships have been noted. However, as explained above, the overwhelming consistency with which he has been assigned GAF scores corresponding with a 70 percent rating is highly probative of the severity of the current overall disability picture. Further, although he does not specifically have several of the listed symptoms provided with a 70 percent rating, the provided symptoms are not to be treated as a checklist when determining what rating is appropriate. Mauerhan, 16 Vet. App. at 442. 

Finally, impairment with deficiencies in most areas was noted by the March 2012 examiner based on symptoms consistent with those displayed over the entire period on appeal. Although the most recent February 2014 examiner indicated the Veteran only had mild or transient symptoms overall, the examiner specifically endorsed irritability with unprovoked outbursts, an inability to establish and maintain effective relationships and difficulty adapting to stressful situations, all of which are severe symptoms associated with the 41 to 50 GAF range and a 70 percent rating. Further, the noted persistent self-direct negative feelings and consistent negative emotional state approximate the continuous depression or panic contemplated by a 70 percent rating. Therefore, the Board finds that the Veteran's overall disability picture more nearly approximates the level of severity contemplated by a 70 percent rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 9411.

A rating of 100 percent is not warranted because the preponderance of the evidence is against a finding that the Veteran has a total occupational and social impairment. There is no medical or lay evidence of a gross impairment in thought processes or communication. The medical evidence consistently reflects that he has logical and coherent thought processes, and normal unremarkable speech patterns. VA examination reports and treatment records reflect that he has without exception denied any suicidal or homicidal ideation, hallucinations, or obsessional rituals. All of the examination reports and treatment records reflect the Veteran consistently presents well dressed and groomed, and thus there is no evidence of an inability to perform activities of daily living, such as the maintenance of minimal hygiene.

The Veteran does not have memory loss so severe that he forgets information such as the names of close relatives or his own name. The May 2010 VA examiner noted some remote and recent memory impairment and the February 2014 examination report and VA treatment records reflect some difficulty with concentration and memory. However, there is no lay or medical evidence that the Veteran's memory problems are so severe that he has been unable to remember core facts such as his own name, the names of close family members, or his own occupation. As such, the current memory difficulties do not rise to the level of a 100 percent rating. Finally, the medical evidence consistently shows that the Veteran was oriented to time and place during examinations and appointments.

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that an initial rating of 70 percent, but no higher, for service-connected PTSD is warranted. See Hart, 21 Vet. App. 505.

B. Low Back

The Veteran contends he is entitled to an initial rating in excess of 10 percent for his low back disability. The low back disability is rated under Diagnostic Code 5237, covering lumbosacral strains. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id.

Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding or localized tenderness not resulting in abnormal gain or spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Formula.

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 

Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id.

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id.

Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1.

The objective medical evidence is against a finding that an initial rating in excess of 10 percent for a low back disability is warranted. The Veteran was provided with VA examinations in May 2010, March 2012 and February 2014. The May 2010 examiner noted that the Veteran had forward flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 45 degrees, for a combined range of motion of 240 degrees. The examiner noted pain and muscle stiffness to be present, but that there was no additional limitation of motion after repetitive testing. Deformity, fatigue, lack of endurance, weakness, tenderness, and muscle spasm were noted to not be present. Gait was noted to be normal. The veteran denied loss of bladder control.

The March 2013 examiner found forward flexion to 78 degrees, extension to 18 degrees, left and right lateral flexion to 24 degrees, and left and right lateral rotation to 30 degrees, for a combined range of motion of 204 degrees. There was no additional functional loss after repetitive testing due to weakness, fatigue or incoordination, although the examiner noted both pain and tenderness to be present. Gait was found to be normal, and no deformity, muscle spasm or guarding was noted to be present.

Finally, the February 2014 examiner noted forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 25 degrees, and left and right lateral rotation to 30 degrees, for a combined range of motion of 230 degrees. No objective evidence of pain on motion in any direction was noted, and no additional functional loss was noted to be present after repetitive testing. Muscle spasms or guarding resulting in abnormal gait or contour were noted to not be present. 

VA treatment records reflect continued complaints of back pain generally. December 2010 and July 2011 treatment records noted the Veteran's spine was straight, with some muscle tenderness. The December 2010 record further noted no guarding. A September 2011 record noted tenderness on palpation and a normal gait. Range of motion was noted to be seventy-five percent of normal flexion and extension, which translates to approximately 67.5 degrees of flexion and 22.5 degrees of extension, with full side bend and full rotation. 38 C.F.R. § 4.71a, Plate V. These notations result in a combined range of motion of approximately 210 degrees. Lumbar spine range of motion was noted to be normal in all directions in October 2011, with a normal gait also being noted. Tenderness was noted to be present in November 2011, but full range of motion in flexion and rotation was still noted. Finally, in February 2013 diffuse discomfort on palpation was noted, along with a limited range of motion due to pain, but no measurements were provided.

Based on the objective medical evidence of record, the Veteran's low back disability does not more nearly approximate the level of severity contemplated by a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237. At no point has range of motion testing reflected flexion less than 60 degrees or a combined range of motion less than 120 degrees. Further, an abnormal gait or abnormal spinal contour due to spasm or guarding has at no point been noted in the examination reports or the Veteran's treatment records. Therefore, an increased rating in excess of 10 percent is not warranted.

In evaluating the Veteran's level of disability functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The Veteran has complained of limitation of motion, flare-ups, pain on movement and stiffness, which he is competent to report. Jandreau, 492 F.3d 1372. However, all three VA examiners found that there was no additional loss of motion after repetitive testing due to fatigue, lack of endurance, incoordination or other factors. As such, the Board finds that the VA medical opinions outweighs the Veteran's statements regarding additional functional loss due to pain, weakness, fatigue or other factors. 38 C.F.R. §§ 4.40, 4.45, 4.59.

No additional higher or alternative ratings under different Diagnostic Codes can be applied. None of the VA examiners noted that the Veteran had IVDS or suffered from incapacitating episodes, with the February 2014 examiner specifically noting IVDS was not present. The Veteran's treatment records are silent for any notations of IVDS or incapacitating episodes, and the Veteran has not indicated that he suffers from incapacitating episodes as contemplated by the Incapacitating Episodes Formula. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. In light of the lay and medical evidence of record, a rating in excess of 10 percent based on incapacitating episodes lasting at least two weeks but less than four weeks is not warranted. Id.

When evaluating disabilities of the spine, any associated objective neurologic abnormalities, including bowel or bladder impairment, are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, the Veteran is already service connected for bilateral lower extremity radiculopathy as a result of his low back disability, the ratings for which are currently on appeal. The Veteran has not been diagnosed with any other neurologic or intestinal abnormalities. Thus, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's service-connected low back disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.
C. Bilateral Lower Extremity Radiculopathy

The Veteran's left and right lower extremity radiculopathy are currently rated under Diagnostic Code 8520, covering impairment of the sciatic nerve, and are assigned 10 percent ratings based on the presence of mild incomplete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. An 80 percent rating is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or lost. Id.

Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id.

Neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the scale provided for injury of the nerve identified, with a maximum rating equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Tic douloureux may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124.

The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Based on the evidence of record, the Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's service connected left and right lower extremity radiculopathy. Throughout the period on appeal the Veteran has complained of pain and tingling, which he is competent to report. Jandreau, 492 F.3d 1372. He has not complained of any physical manifestations, such as muscle atrophy, muscle weakness or decreased reflexes.

Turning to the medical evidence, the May 2010 VA examiner noted that the veteran denied radiating pain into his legs, but did endorse a tingling feeling in his right lower extremity. Muscle strength bilaterally was noted to be 5+, with slightly decreased deep tendon reflexes in the knees and ankles bilaterally. Sensation was found to be grossly intact to light touch. Based on the findings the examiner diagnosed the Veteran with bilateral lumbar radiculitis. The examiner further noted that the complained-of lower extremity pain was likely related to the radiculitis. 

The March 2012 VA examiner noted negative straight leg testing bilaterally, with symmetric patellar and Achilles deep tendon reflexes. The examiner noted normal knee strength bilaterally, normal light touch sensation bilaterally, and that the left and right calves had good tone with no evidence of atrophy. The examiner did not subjective complaints by the Veteran of bilateral lower extremity pain.

The February 2014 examiner noted that the Veteran denied both radiating pain and weakness in the lower extremities, although a tingling sensation on the right side was endorsed. On examination the examiner noted muscle strength to be normal bilaterally, with no indications of muscle atrophy. Reflexes were noted to be slightly decreased bilaterally, but sensation to light touch was normal in all areas. Straight leg raise testing was negative bilaterally. Overall, the examiner indicated there was no evidence of radicular symptoms, and indicated that neither the left or right lower extremity was affected by radiculopathy. No other neurologic, bowel, or bladder problems were found.

VA treatment records reflect numerous complaints of intermittent bilateral lower extremity pain. December 2010 and July 2011 treatment records reflect that straight leg testing was negative at the time. A September 2011 treatment record noted normal muscle strength, reflexes, and light touch sensation, with a negative straight leg test. The Veteran was again noted to have normal sensation to light touch bilaterally in October 2011. The October 2011 treatment record also noted that there was no evidence of neurological involvement and that straight leg testing was negative. Treatment records are wholly silent for any indications of physical manifestations, such as muscle weakness or atrophy. 

Based on the lay and medical evidence of record, the Board finds that the Veteran's left and right lower extremity radiculopathy is purely sensory in nature. The Veteran has almost exclusively complained of bilateral lower extremity pain, along with the May 2010 complaint of right leg tingling. The VA examination reports and treatment records also almost exclusively reflect only notations of bilateral lower extremity pain, with no notations of muscle atrophy, or loss of reflexes or motion. Impairment that is sensory in nature warrants a maximum rating commensurate with moderate incomplete paralysis. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. Here, the Veteran's bilateral lower extremity radiculopathy is manifested exclusively by pain of an intermittent or occasional nature, with no accompanying alternative sensory loss or physical manifestations. In weighing the evidence of record, the Board finds that manifestations consisting solely of intermittent pain, without any other sensory issues, do not warrant the maximum allowable rating for purely sensory impairments or approach the level of disability contemplated by moderate incomplete paralysis. Id. Therefore, the Board finds that the Veteran's bilateral lower extremity radiculopathy more nearly approximates the currently assigned 10 percent rating for mild impairment of the sciatic nerve, and that an increased rating of 20 percent is not warranted.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. The VA examination reports and treatment records are silent for notations concerning impairment of any nerves other than the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Codes 8521-8530. The Veteran's bilateral lower extremity pain has never been described as moderate or severe, and no objective signs of other sensory impairments have been noted in the medical evidence of record. As the Veteran's symptoms consist only of intermittent pain, his overall disability picture does not warrant the maximum assignable ratings for purely sensory involvement for neuralgia or neuritis. 38 C.F.R. §§ 4.123, 4.124. There is no medical evidence of tic douloureux. 38 C.F.R. § 4.124.

The lay evidence concerning the Veteran's symptomatology is competent and has been considered. However, as discussed above, the evidence as a whole does not reflect that the Veteran's level of disability in either lower extremity more nearly approximates moderate incomplete paralysis. Therefore, the Board finds that initial ratings in excess of 10 percent for left and right lower extremity radiculopathy are not warranted. 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520. Additionally, staged ratings are not warranted, as the Veteran has had a stable level of symptomatology throughout the period on appeal. See Hart, 21 Vet. App. 505. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

D. Left Wrist

The Veteran contends that he is entitled to an initial rating in excess of 10 percent for his left wrist disability. For disabilities affecting certain extremities, different ratings are available for the dominant (major) and non-dominant (minor) side. Here, the Veteran has consistently reported that he is right-hand dominant. As such, the ratings for the minor side must be considered. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. 

The Veteran's left wrist disability is assigned a 10 percent rating under Diagnostic Code 5215, covering limitation of motion of the wrist. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Under Diagnostic Code 5215, a 10 percent rating for the major wrist is warranted for either limitation of palmar flexion in line with the forearm or limitation of dorsiflexion to less than 15 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5215. No higher ratings based on limitation of motion are possible. See id. As the maximum allowable rating is 10 percent, it is not possible to assign the Veteran a higher disability rating under Diagnostic Code 5215. As such, a higher rating for limitation of dorsiflexion or palmar flexion is not warranted. Id.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. For the purposes of Diagnostic Code 5214, governing ankylosis of the major wrist, ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis, 3 Vet. App. 259 (citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH 68 (4th ed. 1987)). The May 2010 and March 2012 VA examiners both specifically noted that the Veteran was able to move his left wrist, and therefore it is clearly not ankylosed for VA purposes. Further, VA and private treatment records at no point indicate that the Veteran's wrist actually is ankylosed, or is of such condition that it is the functional equivalent of ankylosis.

Extremely unfavorable ankylosis of the wrist is rated based on the loss of use of the hand under Diagnostic Code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214, Note. Loss of use of a hand is present when no effective function remains other than that which could be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2). There is no medical or lay evidence indicating that the Veteran has lost the use of his left hand as a result of his left wrist disability. 

In evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain on movement, tenderness and limitation of motion, all of which he is competent to report. Jandreau, 492 F.3d 1372. However, the VA examiners found that upon repetitive testing there was no additional functional loss due to pain, weakness, fatigue, or incoordination, despite some notations of objective evidence of pain on motion. Neither of the examiners noted that these symptoms result in complete loss of use of the left hand or effectively resulted in ankylosis of the left wrist. As such, the Board finds that the VA medical opinions outweigh the Veteran's statements regarding additional functional loss due to pain, weakness, fatigue, or other factors. 38 C.F.R. §§ 4.40, 4.45. Additionally, the Veteran's complaints of pain on motion are fully contemplated by his current rating. 38 C.F.R. § 4.59.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected left wrist disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

III. Extraschedular Ratings

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

The Board will address the extraschedular considerations applicable to each disability in turn, applying the framework above.

A. PTSD

In this case, the first Thun element is not satisfied. The Veteran's service-connected PTSD is manifested by signs and symptoms such as depressed mood, short-term memory and concentration impairment, irritability with outbursts of anger, hypervigilance, anxiety, low frustration tolerance, social and emotional isolation, flattened or restricted affect, severe sleep impairment, disturbances of motivation and mood, persistent negative emotions and mental state, frequent nightmares and intrusive thoughts, an inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, and consistent Global Assessment of Function Scores of 45. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule as part of the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. The General Formula contemplates varying degrees of social and occupational impairment based on a wide range of symptomatology, such as memory loss, anxiety and depression, and an inability to establish and maintain effective relationships. Id.

Given the variety of ways in which the rating schedule contemplates occupational and social impairment due to a mental disorder, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, as all of the Veteran's noted symptoms are directly contemplated by the rating schedule and the General Formula to some degree. In short, there is nothing exceptional or unusual about the Veteran's PTSD because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, an extraschedular rating for the Veteran's PTSD is not warranted.

B. Low Back

The first Thun element is not satisfied in this case. The Veteran's service-connected low back disability is manifested by disc herniation at L4-L5 and L5-S1, DDD, pain on movement, flare-ups, difficulty walking and sitting, forward flexion to 67.5 degrees at worst, a combined range of motion of 204 degrees at worst, tenderness, stiffness, flare-ups, and no further limitation after repetitive testing due to weakness, fatigability or other factors. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. 

For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. While some of the Veteran's symptomatology is not explicitly considered in the rating criteria, such as difficulty walking, these symptoms are inherently contemplated by the currently assigned rating. The Veteran's difficulty walking and bending over have been specifically related to his limited range of motion and the presence of back pain. Limitation of motion is directly considered by the rating criteria, and the presence of pain, and any further functional effects resulting therefrom, was fully considered in determining the Veteran's current rating, as discussed above. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. 202. In short, there is nothing exceptional or unusual about the Veteran's low back disability as the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. As the first element is not met, referral for an extraschedular rating is not warranted in this case.




C. Bilateral Lower Extremity Radiculopathy

The first Thun element has not been met. The Veteran's service-connected left and right lower extremity radiculopathy are manifested by mild neurological impairment, occasional or intermittent pain, and tingling. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the Rating Schedule for Diseases of the Peripheral Nerves. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The rating schedule specifically contemplates sensory impairment, varying severities of sensory impairment, and physical manifestations, such as loss of movement, loss of reflexes or muscle atrophy. 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 5280. In summary, the schedular criteria for nerve disabilities contemplate a wide variety of manifestations.

Given the variety of ways in which the rating schedule contemplates impairment due to nerve disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested almost exclusively by intermittent or occasional pain bilaterally. In short, there is nothing exceptional about the Veteran's left and right lower extremity radiculopathy as the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, extraschedular referral is not warranted in this case.

D. Left Wrist

In this case, the first Thun element is not met. The Veteran's service-connected left wrist disability is manifested by pain, tenderness, and limitation of motion. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule as part of the General Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. Factors such as pain were specifically considered by the VA examinations when determining the Veteran's range of motion, and thus the functional limitations resulting from left wrist pain are inherently contemplated by the criteria covering limitation of motion. There is nothing exceptional or unusual about the Veteran's left wrist disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted.

E. Johnson v. McDonald Considerations

Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service connected for PTSD, a low back disability, bilateral lower extremity radiculopathy, a left wrist disability, and tinnitus. The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's PTSD, low back disability, left wrist disability, or bilateral lower extremity radiculopathy combines or interacts either with one another or his other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

IV. Service Connection

Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

Finally, for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 C.F.R. § 3.317.

A claimant's signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, 492 F.3d at 1377.

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends he is entitled to service connection for bilateral knee disabilities, bilateral shin splints, a respiratory disability, and a bilateral hearing loss disability. The Board will address each claim in turn, applying the legal framework outlined above. Each claim will be addressed individually for the purposes of clarity at the expense of some repetition.

A. Left and Right Knee Disabilities

The Veteran claims he is entitled to service connection for bilateral knee disabilities. For the reasons stated below, the Board finds that service connection on a direct or presumptive basis is not warranted. As stated above, in order for there to be a viable claim for service connection, there must a current disability. Brammer, 3 Vet. App. at 225. Here, there is no competent evidence of record showing current bilateral knee disabilities. The Veteran has stated that he experiences knee pain. While the Veteran is competent to describe lay observable symptoms, such as pain, he is not competent to diagnose himself with a knee disability, as to do so requires medical expertise in the field of orthopedic medicine. Jandreau, 492 F.3d 1372. As there is no competent lay evidence of record establishing a current knee disability, the issue of a current disability must be decided based on the medical evidence.

Turning to the medical evidence, the May 2010 knee examiner noted that on objective examination the Veteran's knees demonstrated no gross deformity, tenderness, laxity or effusion, with almost full range of motion. The examiner stated that the knee examination was unremarkable. The accompanying x-ray report was negative for any abnormalities. A September 2011 treatment record noted normal x-rays and full range of motion bilaterally. No effusion, pain, laxity, or evidence of meniscal or ligamentous injury was noted. Tenderness was found to be present bilaterally, and a diagnosis of arthralgia was given. Additional treatment records December 2010, July 2011, October 2011, and November 2011 reflect full range of motion. X-rays were also negative for any abnormalities in November 2011.

VA treatment records do reflect continued complaints of knee pain generally and repeated diagnoses of arthralgia. Arthralgia is defined as "pain in a joint." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 150 (32d ed. 2012). Thus, the only diagnosis of record concerning the left or right knee is simply a diagnosis of joint pain. For VA disability compensation purposes, pain alone is not considered to be a disability, but instead there must be another disability underlying complaints of pain. See Sanchez-Benitez, 13 Vet. App. at 285. As such, the Veteran does not have a currently diagnosed left or right knee disability for VA purposes. 

As there is no competent lay or medical evidence of record indicating that the Veteran has a current diagnosis of a left or right knee disability for VA purposes, service connection on a direct basis is not warranted. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. As service connection on a presumptive basis also requires, as a threshold matter, that there be a current disability, service connection on these bases is also not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.307, 3.309(a).

Finally, while the Veteran has qualifying service in Southwest Asia during the Persian Gulf War, the Veteran has not alleged, and the medical evidence does not show, that the complaints of bilateral knee pain do not have a known clinical diagnosis or are a symptom of a medically unexplained multi-symptom illness. See 38 C.F.R. § 3.317. Indeed, as noted above the Veteran's complaints of bilateral knee pain have been attributed to his radiculitis, and therefore diagnosis has been rendered. The medical evidence is silent for any notations concerning fibromyalgia. 38 C.F.R. § 3.317(a)(3), (b). Therefore, service connection for a bilateral knee disability based on Southwest Asia service is not warranted in this case.

The preponderance of the evidence weighs against a finding that the Veteran has a current left or right knee disability for the purposes of direct or presumptive service connection. Since the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claims are denied.

B. Bilateral Shin Disability

The Veteran claims he is entitled to service connection for a bilateral shin disability, to include shin splints. For the reasons stated below, the Board finds that service connection on a direct or presumptive basis is not warranted. The Veteran has stated that he experiences bilateral shin pain, particularly when running. While the Veteran is competent to describe lay observable symptoms, he is not competent to diagnose himself with shin splints, as to do so requires expertise in the field of orthopedic medicine. Jandreau, 492 F.3d 1372. As there is no competent lay evidence establishing a current disability, the issue must be decided based on the medical evidence.

The May 2010 VA examiner noted complaints of intermittent pain in both shins. On objective examination the examiner noted no deformity, edema, or calf tenderness. Mild tenderness was noted on palpation over the anterior lateral aspect of the shins. Based on this examination, the examiner indicated that the Veteran did not have shin splints, and that the pain in his legs was more likely due to lumbar radiculitis.

VA treatment records are silent for any diagnosis of shin splints. A May 2010 radiological note indicated that there was no indication of a tibia or fibula impairment on either the left or the right side. An additional x-ray report from November 2011 again noted that there was no tibia or fibula impairment on either the left or right side. A September 2011 treatment record stated that the Veteran likely did not have shin splints, but noted tenderness over the shins bilaterally. Additional treatment records from July 2011, September 2011, October 2011 and November 2011 all diagnose the Veteran with arthralgia. 

As noted with respect to the knee claims above, while the treatment records do reflect diagnoses of arthralgia, a diagnosis of arthralgia is merely a diagnosis of pain. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 150 (32d ed. 2012). As pain alone is not considered to be a disability for VA purposes, the diagnoses of arthralgia are insufficient to support a claim of service connection for bilateral shin disabilities. See Sanchez-Benitez, 13 Vet. App. at 285. As such, the Veteran does not have a currently diagnosed left or right shin disability for VA purposes.

The Board notes a February 2009 in-service complaint of bilateral shin pain in service, which resulted in a diagnosis of shin splints. While this reflects an in-service bilateral shin injury or disability, it does not establish a current disability, which is required before the in-service aspect of a service connection claim is reached. Further, the VA examination reports and treatment records all uniformly indicate throughout the period on appeal that while the Veteran has shin pain, there is not a current left or right shin disability, with the VA examiner and the September 2011 VA treatment record affirmatively ruling out a diagnosis of shin splints. 

As there is no competent lay or medical evidence of record indicating that the Veteran has a current diagnosis of a left or right shin disability, service connection on a direct basis is not warranted. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. As service connection on a secondary and presumptive basis also requires, as a threshold matter, that there be a current disability, service connection on these bases is also not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.307, 3.309(a).

Finally, while the Veteran has qualifying service in Southwest Asia during the Persian Gulf War, the Veteran has not alleged, and the medical evidence does not show, that the complaints of bilateral knee pain do not have a known clinical diagnosis or are a symptom of a medically unexplained multi-symptom illness. See 38 C.F.R. § 3.317. Indeed, as noted above the Veteran's complaints of bilateral knee pain have been attributed to his radiculitis, and therefore diagnosis has been rendered. The medical evidence is silent for any notations concerning fibromyalgia. 38 C.F.R. § 3.317(a)(3), (b). Therefore, service connection for a bilateral knee disability based on Southwest Asia service is not warranted in this case.

The preponderance of the evidence weighs against a finding that the Veteran has a current disability for the purposes of direct or presumptive service connection. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

C. Respiratory Disability

The Veteran claims he is entitled to service connection for a respiratory disability. For the reasons stated below, the Board finds that service connection on a direct or presumptive basis is not warranted. The Veteran has stated that he experiences shortness of breath. While the Veteran is competent to say he experiences shortness of breath, he is not competent to diagnose himself with a respiratory disability, as to do so requires medical expertise in the field of pulmonology. Jandreau, 492 F.3d 1372. As there is no competent lay evidence of record concerning a current disability, the issue must be decided based on the medical evidence.

The April 2010 VA examiner noted that on objective examination the Veteran's chest was normal, his lungs were clear to auscultation and percussion, and that no rales or rhonchi were heard. The examiner noted a normal chest x-ray in August 2009. The examiner then stated that there was no respiratory abnormality, as all evaluations were within normal limits. Pulmonary function tests conducted in August 2009 and May 2010 indicated pulmonary function was within normal limits. Treatment records are silent for any diagnoses of a respiratory disability. While an August 2009 record notes subjective complaints of dyspnea, this was not accompanied by a diagnosis of any respiratory disorder. Further, the Veteran denied having dyspnea in a subsequent December 2012 treatment record.

As there is no competent lay or medical evidence of record indicating that the Veteran has a current diagnosis of a respiratory disability, service connection on a direct basis is not warranted. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. As service connection on a presumptive basis also requires, as a threshold matter, that there be a current disability, service connection on these bases is also not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.307, 3.309(a), 3.309(e), 3.310.

Finally, the Veteran has not alleged, and the medical evidence does not show, that the claimed respiratory disability does not have a known clinical diagnosis or is a symptom of a medically unexplained multi-symptom illness. See 38 C.F.R. § 3.317. The Veteran's pulmonary function tests exclusively reflect normal results, as do all other objective examinations of the Veteran's lungs and chest. Thus, there are no objective medical indications of a respiratory disability. 38 C.F.R. § 3.317(a)(3), (b). While the Veteran has at times endorsed dyspnea, the Veteran has also as recently as December 2012 denied any dyspnea, which undermines the credibility of the Veteran's statements concerning respiratory symptomatology and renders them of no probative value. Therefore, service connection for a respiratory disability based on Southwest Asia service is not warranted.

The preponderance of the evidence weighs against a finding that the Veteran has a current respiratory disability for the purposes of direct or presumptive service connection. Since the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Entitlement to an initial rating of 70 percent, but no higher, for PTSD is granted, subject to the laws and regulations controlling the award of monetary benefits.

Entitlement to an initial rating in excess of 10 percent for a low back disability, to include lumbar DDD, is denied.

Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied.

Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied.

Entitlement to an initial rating in excess of 10 percent for a left wrist disability is denied.

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for a right knee disability is denied.

Entitlement to service connection for a bilateral shin disability, to include shin splints, is denied.

Entitlement to service connection for a respiratory disorder is denied.


REMAND

VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. 
§ 3.159(c)(4). In this case, the Veteran's audiological evaluations in October 2009 and April 2010 reflected that the Veteran had normal hearing from 500 to 4000 Hertz bilaterally, and therefore did not have a current hearing loss disability for VA purposes. However, in March 2013 a VA audiologist noted that the Veteran had mild sensorineural hearing loss in the left ear at 3000 Hertz, but provided no precise measurement as to what the Veteran's threshold at 3000 Hertz was. This raises the possibility that the Veteran could have a threshold of 40 decibels or greater in the left ear at 3000 Hertz, which would constitute a hearing loss disability. As there is an indication the Veteran might have a current disability, the Board finds it must remand for a new examination. 

While on remand, appropriate efforts must be made to obtain any records, whether VA or private, identified and authorized for release by the Veteran.

Accordingly, the case is REMANDED for the following action:

1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran.

All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them.

2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's bilateral hearing loss. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions:

a) Does the Veteran have a current bilateral hearing loss disability for VA purposes?

b) If so, did the bilateral hearing loss disability manifest to a compensable degree within one year of the Veteran's separation from service?

c) If the bilateral hearing loss disability did not manifest within one year of separation from service, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral hearing loss was otherwise incurred in or aggravated by this period of service?

A detailed rationale for the opinion must be provided. If an opinion is rendered as to the presence of a causal relationship, the examiner should address the significance, if any, of the hearing threshold shift noted on a June 2009 in-service audiogram.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 

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 2014).



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs