Citation Nr: 1631218 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 13-09 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for cold injury residuals. 2. Entitlement to service connection for diabetes mellitus, to include diabetic coma. 3. Entitlement to service connection for a back disorder, to include scoliosis and spondylosis. 4. Entitlement to an initial rating in excess of 50 percent for dysthymic disorder. 5. Entitlement to an initial rating in excess of 10 percent for residuals of a left knee meniscal tear. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Rebecca C. Wanee, Attorney ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to July 1985 in the United States Army, and from January 1986 to March 1986 in the United States Marine Corps. He also served in the Mississippi Army National Guard and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2010 and October 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2014, the Veteran withdrew his request for a Board hearing. See 38 C.F.R. § 20.704(e) (2015). The Board notes that additional evidence has been received since the Agency of Original Jurisdiction's (AOJ's) June 2014 supplemental statement of the case (SSOC) and August 2014 statement of the case (SOC). In May 2016, the Veteran and his representative submitted correspondence and evidence, which was not accompanied with a waiver of initial review by the AOJ. However, since the Veteran's substantive appeals were received after February 2, 2013, the Board is no longer required to obtain a waiver of initial review by the AOJ. See § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence.) This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing systems. Any future consideration of this Veteran's case must take into account the existence of these electronic records. The issues of entitlement to service connection for a back disorder, entitlement to an increased rating for a left knee disability, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran does not have current cold injury residuals. 2. The Veteran's diabetes mellitus did not manifest during a period of active service or within one year of a period of active service lasting 90 days or more. The May 2000 episode of diabetic ketoacidosis occurred during a period of INACDUTRA. 3. The Veteran's dysthymic disorder symptoms have been productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for cold injury residuals have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for diabetes mellitus, to include diabetic coma, have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 30307, 3.309 (2015). 3. The criteria for an initial rating in excess of 50 percent for dysthymic disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, and 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Regarding the Veteran's service connection claims, the notice requirements were met in March 2009, July 2009, and September 2012 letters. These letters notified the Veteran of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of the evidence he should provide, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Furthermore, the letters were provided before the initial adjudication of the claims in March 2010 and October 2012. Accordingly, the duty to notify has been satisfied. Regarding the evaluation for the Veteran's service-connected dysthymic disorder, he is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to this issue. VA has also satisfied its duty to assist the Veteran. All available service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by the Board in connection with the claim. The Veteran has not identified any outstanding records that are relevant to the claim. The Veteran's Army National Guard records are available; however, the AOJ was unable to obtain records from his period of active duty from July 1982 to July 1985. See December 2012 Formal Finding. When a Veteran's service records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, are heightened. See Washington v. Nicholson, 19 Vet.App. 362 (2005). In addition, when VA is unable to produce records that were once in the government's custody, an explanation should be given a claimant as to how service treatment records are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified. 38 U.S.C.A. § 5103A(b)(2). In this case, the AOJ notified the Veteran that it was unable to obtain a portion of his service treatment records and requested that he submit any records in his possession or other documents to substitute for service treatment records. See April 2012 correspondence. When VA undertakes to provide VA examinations or obtain VA opinions, it must ensure that the examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In connection with his diabetes mellitus claim, the Veteran was afforded a VA examination in April 2009 and a VA medical opinion was obtained in June 2014. The Veteran and his representative have argued that the medical opinion is inadequate for a number of reasons. See May 2016 correspondence. However, as will be explained below, there is no legal basis upon which the claimed benefits may be awarded. Therefore, any deficiency regarding the VA medical opinion would be of no consequence to the resolution of the claim. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010); Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes that the Veteran was not provided with a VA examination in conjunction with his claimed cold injury residuals. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As explained below, the evidence does not establish any chronic cold injury residuals during service or since service. Additionally, the evidence does not indicate that a disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service. See McLendon, 20 Vet.App. at 83 (holding that the third prong of § 3.159(c)(4)(i)(C), which requires that the evidence of record "indicates" that "the claimed disability or symptoms may be associated with the established event," establishes "a low threshold"); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed.Cir.2010) (rejecting that medical examinations are "virtually automatically" provided and concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Accordingly, the Board finds that a VA examination is not warranted. In connection with the Veteran's increased rating claim, the Veteran was afforded a VA examination for his dysthymic disorder in October 2012. The Board finds that the VA examination is adequate to decide this issue because the examination was based upon a review of the claims file and the Veteran's reported medical history and fully addressed the rating criteria that are relevant to rating the disability in this case. The evidence does not indicate that there has been a material change in the severity of the Veteran's dysthymic disorder. 38 C.F.R. § 3.327(a) (2015). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Hence, an additional examination is not warranted. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As diabetes mellitus is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With regard to lay evidence, medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Cold Injury Residuals The Veteran contends that he has cold injury residuals as a result of frostbite during service. In May 2016, he stated that he suffered from frostbite in his hands during a blizzard in Germany in December 1983; that he was unable to seek medical care and was told to slowly warm his hands over a heater, which was very painful; and that his hands have been sensitive to cold ever since that incident. In previous statements, he indicated that his feet also sustained frostbite. See September 2009 statement. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). In this case, as mentioned above, the Veteran service treatment records for the period of active duty from July 1982 to July 1985 are unavailable. However, service treatment records after this period of active duty are available and do not show any chronic cold injury residuals. A November 1985 enlistment examination for the Army National Guard indicates that his upper extremities were normal and that he had no neurologic abnormalities. On the corresponding report of medical history, the Veteran did not report any cold injury residuals or problems with his hands. Similarly, a June 1994 enlistment examination indicates that his upper extremities were normal and that he had no neurologic abnormalities. On the corresponding report of medical history, he did not report any cold injury residuals or problems with his hands. A May 2000 periodic examination report notes residuals from a 1999 motor vehicle accident, but no cold injury residuals in his upper extremities. His neurologic system was also normal and he did not report any problems with his hands on the corresponding report of medical history. The evidence also does not note any cold injury residuals to his feet, although it was noted that he had pes planus. After service, the Veteran's VA and private treatment records have not shown any evidence of cold injury residuals. During the April 2009 VA examination for diabetes mellitus, the examiner noted that the Veteran had decreased sensation over the right index, second, third, and forth fingers in an ulnar distribution up the elbow. The examiner indicated the signs and symptoms were suggestive of right ulnar neuropathy and that this was most likely due to a motor vehicle accident he had during civilian life in 1999. The Board has considered the Veteran's lay statements and notes that he is competent to testify as to his symptoms, including having sensitivity to cold. In addition, he is competent to testify that he suffered from cold hands during a blizzard in service and that they were painful when rewarming them. The Board also finds his statements credible. However, he is not competent to relate his current symptoms to an in-service incident that occurred over 32 years ago, as this particular inquiry is within the province of training medical professionals because it goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau, 492 F .3d at 1377 ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board.") For these reasons, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has cold injury residuals. In the absence of proof of a present disability due to disease or injury, there can be no valid claim for service connection. See 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. As such, service connection for cold injury residuals must be denied. 2. Diabetes Mellitus, to include Diabetic Coma The Veteran contends that his diabetes mellitus was incurred or aggravated during a period of INACDUTRA with the Mississippi Army National Guard. See May 2016 correspondence. Although the exact date is unclear, the evidence indicates that the Veteran was diagnosed with diabetes mellitus sometime in 1999. See April 2009 VA examination; private medical records from R.M.H. [initials used to protect privacy]. According to the Veteran, he told medics in May 2000 that he was a "type-2 diabetic." Hence, diabetes mellitus was diagnosed prior to the May 2000 period of INACDUTRA. During the May 2000 period of INACDUTRA, the Veteran began feeling ill and was treated for weakness and dehydration. On May 22, 2000, while driving home, Sergeant S. noticed that the Veteran was asleep and he was unable to wake him. Sergeant S. took the Veteran to the hospital where he was diagnosed with severe diabetic ketoacidosis and dehydration. See May 2000 private treatment records from R.M.H.; July 2000 Line of Duty report. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 1131. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). Additionally, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. §12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. As an initial matter, the Board notes that it is unclear whether the May 2000 period of INACDUTRA was Federal service. The May 2000 temporary duty order was issued by the Adjutant General's Office of the Mississippi Military Department. However, service connection may be granted for disability resulting only from injuries incurred or aggravated during a period of INACDUTRA, not disability resulting from diseases, such as diabetes mellitus. 38 U.S.C.A. § 101(23), (24); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty"). "Injury" is defined as harm resulting from some type of external trauma and "disease" is defined as harm resulting from some type of internal infection or degenerative process. VAOPGCPREC 4-2002. There is no indication in the record that the Veteran's diabetes mellitus and diabetic ketoacidosis resulted from external trauma. Therefore, the Board finds that the condition is appropriately categorized as a disease rather than an injury. Dorland's Illustrated Medical Dictionary, 535 (31st ed.2007) (a disease is any deviation from the normal structure or function of an organ as manifested by characteristic symptoms). As the disposition of this claim is based on the law as applied to undisputed facts, there is no basis on which service connection may be granted and the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). Increased Rating Claim - Dysthymic Disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, as in this case, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. The Veteran's service-connected dysthymic disorder is currently assigned a 50 percent evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9433, which refers to the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. The 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 worklike setting); inability to establish and maintain effective relationships. 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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. Psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. According to the Fourth Edition of the "American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders" (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score 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). The Board notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In this case, the Veteran's records from the Social Security Administration (SSA) indicate that he reported he was "mildly" depressed in April 2006. The report of an October 2012 VA examination indicates that the Veteran had a history of chronic low-grade dysthymia. He complained of low energy and low motivation (anergia) and an inability to experience the joy available to most individuals. It was noted that he had depressed mood, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The diagnosis was dysthymic disorder and the examiner assigned a GAF score of 68. The examiner further opined that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation. It was also noted that the Veteran had never been married and had no children; that he lived with a friend; that he completed 11th grade and obtained his GED prior to joining the military; and that he was last employed in 1999, but was fired after being involved in a serious motor vehicle accident. VA treatment records are unremarkable for any treatment for a psychiatric disorder. Depression screens were negative in July 2010, September 2011, and May 2012. When asked how often he had little interest or pleasure in doing things, he indicated "not at all." When asked how often he felt down, depressed, or hopeless, he responded "not at all." A November 2011 optometry note indicates that he denied depression. See Virtual VA, CAPRI records received September 11, 2012, pgs. 1, 7, 17, 31. In this case, the Veteran has exhibited psychiatric symptoms listed among the criteria for 30 and 50 percent ratings. He has had depressed mood, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. Overall, when considering the frequency and severity of his symptoms, the Board finds that a rating in excess of 50 percent is not warranted. The Veteran's symptoms have not resulted in occupational and social impairment with deficiencies in most areas. In April 2006, he described his depression as "mild." The September 2012 VA examiner opined that his symptoms resulted in occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks, which corresponds to the criteria for a 30 percent rating. In addition, the Board notes that the GAF score of 68 is consistent with no more than a 50 percent rating. GAF scores of 61 to 70 are indicative of some mild symptoms or some difficulty in social and occupational functioning. Finally, the VA treatment records indicate that he denied having symptoms of depression on multiple occasions. Accordingly, the Board finds the criteria are not met for a higher 70 percent or 100 percent rating for any period since the effective date of service connection. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's dysthymic disorder is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the 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 extra-schedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Regarding dysthymic disorder, a comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes depressed mood, and chronic sleep impairment. Indeed, the rating criteria contemplate the overall effect of all of his symptomatology on his occupational and social functioning. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. 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 of the service-connected disabilities experienced. However, the Court has also held that "[a]lthough the Board must consider any combined effects resulting from all of a claimant's service-connected disabilities insofar as they impact the disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal." Yancy v. McDonald, 27 Vet.App. at 496. In this case, the Veteran has not asserted, and the evidence of record does not show or suggest, any combined effect or collective impact from multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. See Yancy, 27 Vet. App. at 495 (holding that "[n]othing in Johnson changed the long-standing principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record"). Thus, 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. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected dysthymic disorder under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Service connection for cold injury residuals is denied. Service connection for diabetes mellitus, to include diabetic coma, is denied. Entitlement to an initial rating in excess of 50 percent for dysthymic disorder is denied. REMAND The Veteran contends that his current back disorder was incurred in or caused by active service. A February 1986 X-ray report during active duty noted mild scoliosis; possible bilateral spondylosis L5-S1; and prominent posterior discovertebral margins of unclear significance. The clinician indicated that the findings might represent spondylosis, which was rare for his age group. A March 1986 service treatment record notes that the Veteran complained of a one-year history of mid back pain, which increased with exercise and lifting. It was also noted that he complained of sciatica on differential testing. A June 1994 enlistment examination for the Army National Guard reflects that the Veteran's spine was normal and he denied having recurrent back pain on the corresponding report of medical history. A VA examination was conducted in September 2012. The Veteran reported that he had back pain since 1984 when lifting and that it had progressively worsened since then. The diagnosis was spondylosis. The examiner indicated that diagnostic testing had been performed and that no arthritis was shown, but the actual X-ray report is not in the Veteran's claims file. The examiner opined that the spondylosis was less likely than not incurred in or caused by service. The examiner stated that spondylosis was slow degeneration of the spine caused by normal wear and tear and was a common diagnosis of back pain in aging patients. The examiner opined that the Veteran's spondylosis was more likely from normal wear and tear and not from any specific injury while in the service. The examiner, however, did not address the February 1986 X-ray, which showed findings of possible spondylosis during active service. Therefore, the Board finds that a remand is required for another VA examination and medical opinion. Regarding the Veteran's claim for an increased rating for a left knee disability, the Board finds that a remand is required for another VA examination. Recently, the Court found that pursuant to 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 2016 WL 3591858, at *8-9 (July 5, 2016). In this case, the September 2012 VA examiner did not test the Veteran's left knee for pain on both active and passive motion in both weight-bearing and nonweight-bearing positions. The examiner also did not test the opposite joint. Therefore, the Board finds that another VA examination is needed. Regarding the Veteran's claim of entitlement to TDIU, this issue is inextricably intertwined with the service connection and increased rating claims. Therefore, they must be considered together. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back and left knee. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records, including from the Smithville Community Based Outpatient Clinic. The AOJ should also obtain any reports of diagnostic testing associated with the September 2012 VA examination. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of his back disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The Veteran has contended that his back pain began during active service when lifting and has progressively worsened since then. A March 1986 X-ray showed scoliosis and possible spondylosis, which was noted to be rare for his age. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should identify all current back disorders, including spondylosis and scoliosis. Then, for any disorder identified, the examiner should opine as to whether it is at least as likely as not that such disorder is causally or etiologically related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After obtaining all identified and outstanding records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected left knee meniscal tear. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected left knee disability. The examiner should report all signs and symptoms necessary for rating the Veteran's left knee meniscal tear under the rating criteria. In particular, the examiner should test the range of motion of each knee in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing in not necessary in this case, he or she should clearly explain why this is so. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs