Citation Nr: 1605309	
Decision Date: 02/11/16    Archive Date: 02/18/16

DOCKET NO.  10-39 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability (TDIU).

2.  Entitlement to an effective date earlier than November 24, 2008, for the grant of a 10 percent disability rating for left knee sprain with instability.

3.  Entitlement to an effective date earlier than November 24, 2008, for the grant of a 10 percent disability rating for right knee sprain with instability.

4.  Entitlement to an initial rating in excess of 20 percent for left osteoarthritis acromioclavicular joint with subacromial bursitis.

5.  Entitlement to an initial rating in excess of 10 percent for Achilles tendonitis with osteoarthritis, right ankle.

6.  Entitlement to an initial rating in excess of 10 percent for Achilles tendonitis with osteoarthritis, left ankle.

7.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney at Law


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel


INTRODUCTION

The Veteran served on active duty from March 1988 to August 1995.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

The Board notes that the Veteran requested a BVA Hearing in his substantive appeal.  Nevertheless, in a December 2015 statement the Veteran indicated that he did not want a hearing.  The Board finds that the Veteran's hearing request has been withdrawn. 

A review of the evidence reflects that the issue of a total disability rating based on individual unemployability (TDIU) has been raised by the record.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record.  

In light of the Veteran's statements, the Board finds that the issue of entitlement to a TDIU is reasonably raised by the record and considered to be part of the Veteran's increased rating claims, as reflected on the first page of this decision.

The Board notes that additional evidence has been associated with the claims file following the issuance of the September 2015 Supplemental Statement of the Case and the March 2014 Statement of the Case.  However, in a January 2016 statement the Veteran waived AOJ consideration of such evidence.  38 C.F.R. § 20.1304 (2015).  Therefore, the Board may properly consider such evidence.

This appeal is comprised of documents contained in the Veterans Benefits Management System (VBMS) and the Virtual VA system.  All future documents should be incorporated into the Veteran's VBMS file.  


FINDINGS OF FACT

1.  The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation.

2.  It was not factually ascertainable that the Veteran's right knee sprain with instability and left knee sprain with instability increased to that recognized by a 10 percent disability rating, prior to November 24, 2008.

3.  The Veteran's left osteoarthritis acromioclavicular joint with subacromial bursitis is manifested by limitation of motion at shoulder level with pain, stiffness, and swelling but not manifested by limitation of motion to 25 degrees from side; anklyosis has not been demonstrated. 

4.  The Veteran's Achilles tendonitis with osteoarthritis, of both the right and left ankles, were manifested by no more than moderate limitation of motion of the left and right ankles; there is no evidence of ankylosis or other significant impairment.


5.  For the entirety of the period on appeal, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity.
 

CONCLUSIONS OF LAW

1.  The criteria for a total disability rating based on individual unemployability have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).

2.  An effective date earlier than November 24, 2008, for a 10 percent rating for left knee sprain with instability, is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015).
 
3.  An effective date earlier than November 24, 2008, for a 10 percent rating for right knee sprain with instability, is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015).

4.  The criteria for an initial disability rating in excess of 20 percent for left osteoarthritis acromioclavicular joint with subacromial bursitis are not met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5201, 5202, 5203 (2015).

5.  The criteria for an initial rating in excess of 10 percent for Achilles tendonitis with osteoarthritis, right ankle, are not met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5271 (2015). 

6.  The criteria for an initial rating in excess of 10 percent for Achilles tendonitis with osteoarthritis, left ankle, are not met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5271 (2015). 


7.  The criteria for an initial disability rating in excess of 50 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. TDIU

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2015).  

The Veteran is currently service connected for PTSD (50 percent), pseudofolliculitis barbae and subungual onychomycosis (30 percent), left osteoarthritis acromioclavicular joint with subacromial bursitis (20 percent), left knee sprain with instability (20 percent), right knee sprain with instability (10 percent), Achilles tendonitis with osteoarthritis, right ankle (10 percent), Achilles tendonitis with osteoarthritis, left ankle (10 percent), right knee sprain with limitation of flexion (10 percent), left knee sprain with limitation of flexion (10 percent). 

The Veteran has a combined rating of 90 percent.  The Veteran meets the schedular requirements for a TDIU.

The evidence reflects the significant impact his service-connected disabilities have on his ability to work.

The Veteran has submitted a December 2015 private disability assessment, completed by a vocational consultant.  After reviewing the Veteran's records she noted that the Veteran has a combination of physical and emotional conditions which interact in terms of severity level.  She noted that the major area of limitations appear to be mental and physical activity involved in sustaining work, which is extremely limiting for the Veteran.  She opined that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected PTSD, pseudofolliculitis barbae and subungual onychomycosis, left osteoarthritis acromioclavicular joint with bursitis, left knee sprain with instability, right knee sprain with instability, right knee sprain with limitation of flexion, left knee sprain with limitation of flexion, Achilles tendonitis, left ankle, and Achilles tendonitis of the right ankle and the record supports this findings as far back as the date of filing.

In light of the Veteran's occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level.

Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU for the period on appeal is warranted.  38 U.S.C.A. § 1507; 38 C.F.R. § 3.102.

II.  Earlier Effective Date

Under 38 U.S.C.A. § 5110(a), the effective date of an increase in a veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(b)(2) provides an exception to this general rule: 'The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.'  Thus, 'the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.'

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). See also Harper v. Brown, 10 Vet. App. 125, 126 (1997).

In this case, the Veteran's claim for an increased rating was filed on July 10, 2009. 

The Board must, however, also consider the possibility that a prior claim was filed and not acted upon, or that a decision on a prior claim did not become final. As to what constitutes a claim, a claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. §§ 3.1(p); 3.155 (2015).  Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim.  38 C.F.R. § 3.155(a). 

As to finality, an RO decision becomes final unless a notice of disagreement is filed or new and material evidence is received within the one year appeal period. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156(b), 20.1103 (2015).  If VA fails to act on an appeal by issuing a statement of the case or on new and material evidence by readjudicating the claim, the claim remains pending.  See 38 C.F.R. § 3.160(c) ('pending claim' is '[a]n application, formal or informal, which has not been finally adjudicated'); Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) ('a claim remains pending - even for years - if the Secretary fails to act on a claim before him); Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim became final).

In this case, the Veteran's first claim for entitlement to service connection for left and right knee disabilities was his claim for service connection in August 1995.  In December 1996, the RO granted entitlement to service connection for chondromalacia of the left knee and chondromalacia of the right knee, and assigned noncompensable ratings for both knees.  Although notified of this decision and his appellate rights in a letter later that month, the Veteran neither appealed nor submitted new and material evidence within the one year appeal period.  The decision assigning noncompensable ratings therefore became final. 

The Veteran filed claims for increased ratings for his bilateral knees in July 2009.  The RO granted increased ratings of 10 percent for both his right knee and left knee.  The effective date was found to be July 10, 2009.  This corresponded to the date of the Veteran's claim. 

Significantly, there is no document dated between the December 1996 rating decision, and the July 10, 2009 claim for increase that indicates intent on the part of the Veteran to seek increased ratings for his bilateral knee disorder.  38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  Rather, there are multiple statements from the Veteran relating to other claims.  Additionally, while there are treatment records dated during this time period, there is no indication in any of these records of an intent to apply for increased compensation benefits with regard to any knee disorder.  The Board therefore finds that there was no pending claim prior to the July 10, 2009 claim for increased ratings for the Veteran's knee disabilities. 

The only remaining question is whether it was factually ascertainable that there was an increase in disability within a year prior to the July 10, 2009 claim.  In an August 2010 Decision Review Officer (DRO) decision, the RO awarded earlier effective dates for both the right and left knees, back to November 24, 2008, finding that a treatment record dated on that day demonstrated that the Veteran was issued knee braces at that time.  The Board notes that although there is a September 11, 2008 VA treatment record reflecting X-rays of the Veteran's knees, examination at that time reflected normal knee findings, thus not meeting the requirements for a 10 percent disability of either knee at that time. 

Under the general rating formula, a 10 percent rating under Diagnostic Code (DC) 5257, requires the showing of slight recurrent subluxation or lateral instability.  While the Veteran was issued knee braces on November 24, 2008, treatment records from September 2008 reflect that his knees were normal at that time.  No lateral instability or subluxation were noted.  Neither the symptoms exhibit by the Veteran nor his overall impairment, as shown in the September 2008 VA treatment record, more nearly approximated the criteria for a 10 percent disability rating under DC 5257. 

As there is no document dated between  December 1996 and July 10, 2009, that could be construed as an informal claim for an increased rating for the Veteran's left or right knee disabilities and it was not factually ascertainable that the Veteran's left or right knee disabilities increased to a 10 percent disability rating between July 10, 2008 and November 23 ,2008 (the remaining portion of the one-year period before the filing of the July 10, 2009 claim), an effective date earlier than November 24, 2008 for the 10 percent ratings the Board has granted for his right and left knees is not warranted. 

As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b).




III.  Increased Ratings

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015).  When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2015).

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2015).  However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination.  See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.

VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology.  38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Left Shoulder

The Veteran's left shoulder disability is rated 20 percent disabling pursuant to Diagnostic Codes 5003-5201.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2015).  Here, the use of Diagnostic Codes 5003-5201 reflects that the Veteran's disability is rated as degenerative arthritis of the left shoulder under Diagnostic Code 5003 and that the rating assigned is based on limitation of arm motion under Diagnostic Code 5201.

The Board notes that the Veteran is right-handed, thus, his left shoulder is considered the minor extremity.

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent 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 20 percent disability rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  A 10 percent disability rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Diagnostic Code 5003.

Disabilities of the shoulder and arm are rated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203).  Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I.

Diagnostic Code 5200 rates ankylosis of the scapulohumeral joint. Where arm limitation of motion is limited to 25 degrees from the side, a 30 percent disability rating is assigned for the minor side and a 40 percent disability rating is assigned for the major side, under Diagnostic Code 5201.  Limitation of motion midway between the side and shoulder level contemplates a 20 percent disability rating for the minor side and 30 percent disability rating for the major side.  Limitation of motion at shoulder level for either the major or minor extremity contemplates a 20 percent disability rating. 

Under Diagnostic Code 5202, for impairment of the humerus, malunion, with marked deformity, contemplates a 20 percent disability rating for the minor side and 30 percent disability rating for the major side.  Also under Diagnostic Code 5202, for recurrent dislocations of the minor arm at the scapulohumeral joint, a 20 percent disability rating (minor or major) is granted with infrequent episodes, and guarding of movement only at shoulder level; a 20 percent disability rating (minor) and a 30 percent disability rating (major) is granted when there are frequent episodes and guarding of all arm movements for the minor arm.  A 40 percent disability rating (minor) and a 50 percent disability rating (major) is granted for fibrous union arm; a 50 percent rating (minor) and a 60 percent disability rating (major) is warranted for nonunion (false flail joint) of the arm and a 70 percent disability rating (minor) and a 80 percent disability rating (major) is warranted for loss of head of (flail shoulder) for the arm.

Under Diagnostic Code 5203, for impairment of the clavicle or scapula in either the major or minor arm, a 10 percent disability rating is granted for malunion or nonunion without loose movement, and a 20 percent disability rating is granted for nonunion with loose movement or for dislocation.

The Board has reviewed the evidence of record, to include the VA outpatient treatment records, the Veteran's contentions, and a VA examination report.

In consideration of the applicable rating criteria of the shoulder, the Board finds that the objective medical evidence does not support a disability rating in excess of 20 percent for left shoulder disability.

A 30 percent disability rating is not warranted for a minor extremity pursuant to Diagnostic Code 5201, as the objective evidence does not show limitation of motion to 25 degrees from side.  On examination in October 2011, the Veteran reported experiencing flare-ups, and that these were precipitated by physical activity.  The Veteran reported that during flare-ups he is unable to raise his arm above his head or behind his back.  He reported receiving physical therapy.  The Veteran indicated that in the past 12 months his disability had not resulted in any incapacitation. 

Range of motion studies revealed that flexion was from 0 to 90 degrees with pain at 90 degrees.  Abduction was to 102 degrees, with pain at 90 degrees.  The VA examiner noted that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  No ankylosis was noted.  Based on this evidence, the Veteran's left shoulder range of motion is not limited to 25 degrees from his left side.

The Board has additionally reviewed VA treatment records which reflect that the Veteran has received physical therapy and cortisone injections for his left shoulder. 

In light of such clinical observations, the Board finds that the Veteran's left shoulder disability manifests no higher than a 20 percent disability rating under the provisions of 38 C.F.R. §§ 4.3 , 4.7, 4.71a (Diagnostic Code 5201).  The Veteran is not entitled to a rating under Diagnostic Code 5200, as he has no ankylosis of the shoulders (Diagnostic Code 5200).

The Board has also considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206 -07.  Here, the Veteran's functional loss and pain have been taken into consideration in contemplation of the 20 percent evaluation under Diagnostic Codes 5003-5201.  In consideration of the statements of the Veteran and the comments of the VA examiner, the Board finds that the currently assigned 20 percent disability rating adequately compensates him for any pain and functional loss. To the extent that additional functional loss is shown, it does not rise to the level that would enable a finding that the overall disability picture most nearly approximates the next-higher 30-percent evaluation.

Overall, the demonstrated impairment of the left shoulder disability warrants no higher than a 20 percent disability rating under applicable rating criteria.  Thus, the Veteran's claim for a disability rating in excess of 20 percent for the claimed disability must be denied.

Right and Left Ankles

The Veteran is currently in receipt of 10 percent disability ratings for both his Achilles tendonitis with osteoarthritis of the right and left ankles. 

Under Diagnostic Code 5271, used for rating limitation of motion of the ankle, a 10 percent rating is assigned for moderate limitation of motion; and a 20 percent rating is assigned for marked limitation of motion. That is the maximum schedular rating. 

Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38 C.F.R. § 4.71, Plate II (2015).

After a careful review of the record, the Board finds that a higher initial rating is not warranted for either the Veteran's service-connected left or right ankles. 

At an October 2011 VA examination the Veteran reported weakness, stiffness, swelling, giving way, lack of endurance and pain in both his right and left ankles.  The Veteran reported the use of ankle braces. Upon examination, the VA examiner noted tenderness in both the right and left ankles.  However, no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment and drainage of either the right or left ankles were observed. Range of motion testing reflected dorsiflexion of the right and left ankles from 0-20 degrees, with pain at 18 degrees (right ankle), and pain at 12 degrees (left ankle).  Plantar flexion was noted to be 0-45 in both ankles, with pain at 31 degrees (right ankle) and 27 degrees (left ankle).  The VA examiner indicated that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  X-rays at that time reflected no malunion to the os calcis or malunion of the astragalus of both the right and left ankles.  No anklyosis was noted on either ankle. 

The Veteran underwent an additional VA examination in January 2013.  It was noted that the Veteran was using braces and a cane as assistive devices.  Examination at that time reflected right ankle plantar flexion of 45 degrees or greater with painful motion beginning at 45 degrees or greater.  Similar plantar flexion results of the left ankle were noted. Right and left ankle dorsiflexion was noted to be 20 degrees or greater, with pain at 20 degrees or greater.  Following repetitive testing similar range of motion findings were reflected.  The VA examiner indicated that the Veteran did not have any functional loss and/or functional impairment of the ankle.  He noted no localized tenderness or pain on palpation of the joints/soft tissue of either ankle.  Muscle strength testing of both ankles was normal.  No joint instability was note; additionally, anklyosis was not demonstrated. Achilles tendonitis was indicated.

The Board has additionally reviewed voluminous treatment records found in the Veteran's Virtual claims file. 

After a review of the evidence, the Board finds that the criteria for a higher 20 percent rating are not met, for either ankle.  The Board has considered functional loss due to pain and other factors, to the extent shown by the evidence of record, in making this determination.  The evidence does not reflect marked limitation of motion of either the left or right ankles. 

Without evidence of ankylosis or malunion of the ankle, the Board finds that no other diagnostic code provides for a higher or separate rating.

The Board finds that the claims for initial ratings in excess of 10 percent for either the right or left ankles must be denied.  The preponderance of the evidence is against a finding that increased ratings are warranted based on the evidence of record.  Therefore, the claims must be denied.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.655 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

PTSD

The Veteran is currently assigned a 50 percent disability rating for his service-connected PTSD.  He contends that a higher disability rating is warranted. 

The Veteran's PTSD has been rated under DC 9411, which provides that a 10 percent disability rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous mediation.  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).  38 C.F.R. § 4.130, DC 9411.

A 50 percent rating is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  Id.  A 70 percent rating is warranted for PTSD when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships.  Id.

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.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  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.  38 C.F.R. § 4.126.

In addition to the applicable rating criteria, in evaluating the Veteran's PTSD, the Board has also considered the Global Assessment of Functioning (GAF) scores assigned and the definition of those scores. While the GAF score and the interpretations of the score are important considerations in rating a psychiatric disability, the GAF score assigned is not dispositive; rather, such score(s) must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned).  See 38 C.F.R. § 4.126(a); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).

After reviewing the evidence of record throughout the rating period on appeal,  which includes VA treatment records, and August 2008 and March 2012 VA examination reports, the Board finds the competent medical evidence and his reported symptoms, do not show that the manifestations of his PTSD more closely approximate the criteria necessary for a higher rating.  38 C.F.R. § 4.7.

An August 2010 VA examination reports notes that the Veteran had significant problems initiating sleep as well as staying asleep.  Mental examination reflected that he was oriented times four.  His appearance and hygiene were noted to be appropriate, as was his behavior.  The VA examiner noted that the Veteran had anxiety and some degree of a depressed mood.  His speech and communication were normal.  While the Veteran did not have true panic attacks it was evident he had high amounts of anxiety particularly if something has triggered him.  There was no history of delusions or hallucinations. Moreover, no obsessive compulsive behavior was noted.  His thought processes were normal.  The Veteran denied suicidal and homicidal ideation.  The Veteran was assigned a GAF score of 55.

The Veteran underwent an additional VA examination in March 2012.  The VA examiner characterized the Veteran's level of occupational and social impairment as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.  The VA examiner indicated that the Veteran exhibited anxiety, suspiciousness, chronic sleep impairment, and flattened effect.  Suicidal ideation was not noted.  An examination at that time reflected that the Veteran was oriented to time, place, person and purpose.  He behaved appropriately and maintained good eye contact.  The VA examiner noted that the Veteran's speech was coherent and relevant.  The Veteran denied panic attacks but admitted that at times he is suspicious.  No delusions or hallucinations were reported.  It was noted that the Veteran's thought process is normal and no suicidal or homicidal ideations are reported.  A GAF score of 65 was noted.

The Board has additionally reviewed hundreds of pages of VA treatment records.

While the Veteran has "difficulty" in establishing and maintaining effective work and social relationships, the evidence fails to show that he suffered from occupational and social impairment with deficiencies in most areas so as to warrant a 70 percent rating.  

The criteria listed in Diagnostic Code 9411 and the General Formula for Rating Mental Disorders, for a 70 percent rating, include occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.  With regard to work, the Board notes that, although the Veteran's PTSD has no doubt affected his employment throughout the appeal period, he has been awarded TDIU based on the cumulative effect of his service-connected disabilities as a whole.  Moreover, with regard to social impairment, the Board notes that, while the Veteran has difficulty establishing and maintaining social relationships, he continues to care for his two young children.  

With regard to judgment and thinking, at most, minimal to no impairment of each has been shown by the objective record. VA treatment records and the VA examination report show that he has had good judgment and his thought process was within normal limits.  The Board notes that the Veteran mood has been 
described as depressed.  Of significant, the evidence does not reflect suicidal ideation or homicidal ideation. 

In summary, the findings in such areas as work, family relations, judgment, thinking, and mood do not show that the Veteran has deficiencies in most areas, so as to support the assignment of a 70 percent rating.  While he may have had some problems in some of those areas, he has for the most part not had problems (or had minimal problems) in these areas.  Rather, it appears his PTSD manifestations more nearly approximate the criteria for a 50 percent rating which would (it is important to understand) cause the Veteran many problems.

The Board also notes that the GAF scores assigned in VA treatment records and on the VA examination reports have ranged during the appeal period from 55 to 65. 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). GAF scores ranging from 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships.

When the Veteran's various GAF scores are considered together with other findings in the medical evidence, including the Veteran's own statements of how this problem was impacting him, the Board finds that the criteria for a rating in excess of 50 percent have not been met.  With consideration of the Veteran's complaints, symptoms, and clinical findings of record, the Board concludes that his PTSD manifestations do not approximate the criteria for a 70 percent rating. 38 C.F.R. § 4.130, DC 9411.  Accordingly, the preponderance of the evidence is against a finding that the Veteran's PTSD meets, or more nearly approximates, the criteria for a 70 percent rating.  38 C.F.R. § 4.130, DC 9411.  Thus, he is not entitled to a rating in excess of 50 percent.  38 U.S.C.A. § 5107(b). 

Other Considerations

With respect to his increased rating claims, the Board has considered whether an extraschedular rating under 38 C.F.R. § 3.321 is warranted.  The Board finds that the applicable rating criteria reasonably describe the Veteran's disability levels and symptomatology.  The rating criteria are thus adequate to evaluate the disabilities, and referral for consideration of an extraschedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board further notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014), 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.  However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  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.  Duties to Assist and Notify

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

With respect to the Veteran's increased rating claims for his left shoulder, left ankle, right ankle, and PTSD, these claims arise from his disagreement with the initial ratings following the grant of service connection.  Once service connection is granted, the claim is substantiated.  Therefore, 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).  Therefore, no further notice is needed.  With respect to his earlier effective date claims, information regarding effective dates was provided to the Veteran in a July 2009 notice letter. 

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions.  Moreover, the Board has reviewed the Veteran's Virtual VA (VVA) claims file and Veterans Benefits Management System (VBMS) file.  

Next, the Veteran was afforded VA examinations and/or opinions for his shoulder (October 2011), ankles (October 2011 and January 2013), and PTSD (August 2010 and March 2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  VAOPGCPREC 11-95.  Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left shoulder, ankles, or PTSD, since the most recent VA examinations.  The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria.

The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Beyond the above, in light of the TDIU finding, the Board finds that further development is simply unwarranted. 



ORDER

Entitlement to a TDIU is granted.

Entitlement to an effective date prior to November 24, 2008, for the assignment of a 10 percent disability rating for left knee sprain with instability is denied. 

Entitlement to an effective date prior to November 24, 2008, for the assignment of a 10 percent disability rating for right knee sprain with instability is denied. 

An initial rating in excess of 20 percent for left osteoarthritis acromioclavicular joint with subacromial bursitis is denied.

An initial rating in excess of 10 percent for Achilles tendonitis with osteoarthritis, right ankle, is denied.

An initial rating in excess of 10 percent for Achilles tendonitis with osteoarthritis, left ankle, is denied.


An initial rating in excess of 50 percent for PTSD is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs