Citation Nr: 1647348 Decision Date: 12/20/16 Archive Date: 12/30/16 DOCKET NO. 13-24 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for neurogenic bladder. 5. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a left knee disability. 6. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disability. 7. Entitlement to service connection for neurogenic bladder. 8. Entitlement to a rating in excess of 30 percent for a mood disorder. 9. Entitlement to a rating in excess of 30 percent for a total arthroplasty of the left knee, also claimed as an earlier effective date for a rating in excess of 60 percent. 10. Entitlement to an effective date prior to December 2, 2011, for the grant of a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1981 to January 1982. These matters come to the Board of Veterans' Appeals (Board) from June 2011, March 2013, and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As a procedural matter, the claims for, among other things, a right knee disorder and a neurogenic bladder were previously denied by the RO in September 2000. The Veteran properly initiated an appeal to the Board, but following a May 2005 Board remand, he subsequently withdrew his appeal in December 2005. As such, the September 2000 RO decision is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). Next, the Veteran filed a June 2011 notice of disagreement (NOD) with a June 2011 RO decision which denied an increased rating for a left knee disability. While no statement of the case (SOC) was issued, a remand to do so would only serve to further delay adjudication of the appeal on this claim. Rather, the Board has considered the matter in conjunction with the earlier effective date on the same issue. As such, in order to avoid additional confusion, the Board has characterized the issue regarding the left knee as shown on the Title page. Additionally, to the extent that the Veteran had previously requested a hearing before the Board regarding his claims on appeal, this request was withdrawn in an August 2016 statement, which also waived any further consideration of the evidence of record by the RO. 38 C.F.R. §§ 20.704(e), 20.800, 20.1304(c) (2015). FINDINGS OF FACT 1. In August 2016, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal regarding his application to reopen a previously-denied claim of entitlement to service connection for a neck disorder. 2. In July 2009, the RO denied reopening a claim for a lumbar spine disorder on the basis that new and material evidence had not been shown. The Veteran did not appeal that decision or submit new and material evidence within one year of the decision and it became final. 3. In September 2000, the RO denied service connection for a right knee disorder and a neurogenic bladder on the basis that no nexus to service was shown. The Veteran did not appeal that decision or submit new and material evidence within one year of the decision and it became final. 4. Evidence received since the September 2000 and July 2009 RO decisions support reopening the claims for the lumbar spine, right knee, and neurogenic bladder. 5. A lumbar spine disorder is related to a service-connected left knee disability. 6. The right knee disorder did not have onset during active duty, or within one year of service discharge, and is not otherwise related to active duty, to include a service-connected left knee disability. 7. A neurogenic bladder is related to the now service-connected lumbar spine disability. 8. The Veteran's mood disorder is manifested by subjective complaints of depression, anhedonia, dysphoria, insomnia, anergia, low self-esteem, poor appetite, passive suicidal thoughts, inability to handle stress, isolation, decline in personal hygiene, and impaired concentration; objective findings include low mood, anxiety, depression, deficiencies in occupational and social functioning, social withdraw, and a limited capacity to establish relationships. 9. Since June 1, 2010, the Veteran's left knee disability has been manifested by subjective complaints of knee pain, giving away, stiffness, and tenderness; objective findings included effusion, antalgic gait, crepitus, tenderness, pain at rest, abnormal motion, guarding of movement, and limitation of flexion with pain. 10. Since June 1, 2010, the Veteran's service-connected disabilities have precluded his ability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an application to reopen a previously denied claim of entitlement to service connection for a neck disorder have been met. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.101, 20.200-20.205 (2015). 2. The September 2000 and July 2009 RO decisions denying entitlement to service connection for a lumbar spine disorder, a right knee disorder, and a neurogenic bladder are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 3. As evidence received since the July 2009 denial is new and material, the criteria for reopening the claim for service connection for a lumbar spine disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 4. As evidence received since the September 2000 denial is new and material, the criteria for reopening the claim for service connection for a right knee disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 5. As evidence received since the September 2000 denial is new and material, the criteria for reopening the claim for service connection for a neurogenic bladder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 6. A lumbar spine disorder is due to a service-connected left knee disability. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 7. A right knee disorder was not incurred in or aggravated by service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). 8. A neurogenic bladder is due to a now service-connected lumbar spine disability. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 9. The criteria for an initial 70 percent rating for a mood disorder have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9434 (2015). 10. The criteria for a 60 percent rating, but no more, for a total arthroplasty of the left knee have been met effective June 1, 2010. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5055 (2015). 11. The criteria for an effective date of June 1, 2010, for the grant of a TDIU rating have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2015); Harper v. Brown, 10 Vet. App. 125 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Withdraw of Neck Disorder The Board has jurisdiction where there is a question of law or fact necessary to a decision by the Secretary of VA under a law that affects the provision of benefits administered by VA. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202. A substantive appeal to the Board is initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. An appeal as to any or all issues may be withdrawn, by the appellant or by an authorized representative, in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). In August 2016, the Veteran requested to withdraw his appeal regarding his application to reopen a previously denied claim of entitlement to service connection for a neck disorder. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. Accordingly, the Board has no further jurisdiction in the matter, and the appeal is dismissed. New and Material Evidence to Reopen Claims Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly-submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly-submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). The claim of entitlement to service connection for a lumbar spine disorder was previously denied in September 2000 and July 2009 RO decisions. The July 2009 decision is the last final denial. At that time, the RO found that the Veteran had not submitted new and material evidence to reopen the claim as the evidence did not show that a lumbar spine disorder was related to service or to a service-connected disability. He did not appeal that decision or submit new and material evidence within one year of the decision and the July 2009 RO decision became final. The claims of entitlement to service connection for a right knee disorder and a neurogenic bladder were previously denied in a September 2000 RO decision. At that time, the RO found that there was no evidence of a nexus between the claimed disorders and service. The Veteran did not appeal that decision or submit new and material evidence within one year of the decision; therefore, the September 2000 RO decision became final. Since the prior final denials in September 2000 (knee and bladder) and July 2009 (lumbar spine), evidence added to the record includes VA treatment records, private treatment records, and lay statements. VA treatment records from December 2004 document chondromalacia of the right knee and a neurogenic bladder. Notably, the VA physician stated that the right knee chondromalacia may be related to the left knee disability and the resulting increased stress on the right knee. Further, evidence submitted to the record reflects that it was suspected that a neurogenic bladder was related to back pain. A January 2014 private medical opinion similarly noted that the Veteran's neurogenic bladder may be secondary to his lower lumbar pathology. An additional January 2014 private medical opinion reported that it was at least as likely as not that the service-connected left knee disability was the direct cause of the lumbar spine disorder, diagnosed by the private physician as mechanical low back syndrome. The evidence discussed above was not previously of record, or cumulative, or redundant of evidence already of record, and relates to previously unestablished facts necessary to substantiate the Veteran's claims and therefore raises a reasonable possibility of substantiating the claims. As the information submitted since the prior final RO decisions constitutes new and material evidence, the appeal is granted to this extent and the claims will be reopened. Service Connection Claims Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, none of the claims on appeal (mechanical low back pain, chondromalacia and anterior cruciate ligament (ACL) deficiency of the right knee, and neurogenic bladder) are listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. As above, none of the claims on appeal are listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply. Next, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Finally, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Knee VA treatment records dated in December 2004 reflect a diagnosis of right knee chondromalacia. In a March 2013 VA examination, the Veteran self-reported knee pain on an intermittent basis since 1998. He was diagnosed with right knee anterior cruciate ligament (ACL) deficiency. Private medical treatment records from May 2013 document a right knee MRI which showed a complete tear defect of the right ACL, with additional degeneration in all three compartments in the right knee. Therefore, a right knee disorder is shown. Nonetheless, the evidence does not reflect an in-service incurrence or injury. Service treatment records do not show complaints of, treatment for, or a diagnosis related to the right knee. While the findings of a December 1981 Physical Evaluation Board document a left knee disability (which is already service-connected), there are no related complaints regarding his right knee. Therefore, a right knee disorder was not shown in the service treatment records. As the second element (in-service incurrence) is not demonstrated with respect to the right knee, the claim for service connection on a direct basis is denied. As to the issue of secondary service-connection, medical evidence in support of the claim includes a December 2004 VA treatment records indicating that the Veteran's right knee disorder may be associated with his left knee disability. However, a physician's statement that a disorder "could be" or "may be" the causative factor speculative and insufficient to establish a medical nexus. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). Therefore, this evidence is assigned lesser probative value. In March 2013, the Veteran underwent a VA examination to specifically address the secondary issue. At that time, he reported daily right knee pain, which had been previously intermittent since 1998. He also noted increased pain upon ambulation and occasional giving way, which required him to use bilateral hinged knee braces. Following a physical examination, the examiner opined that the right knee ACL deficiency was less likely than not proximately due to or the result of a service-connected left knee disability. He noted that contralateral knee conditions, including ACL deficiency, were not likely to develop or be aggravated following a total knee arthroplasty, as supported by reference to current medical literature. Based on the above, the preponderance of the evidence weighs against the claim of entitlement to service connection for a right knee disorder, to include as secondary to a total arthroplasty of the left knee. Notably, while there is evidence of a current right knee disorder, there is no probative evidence that it first manifested during active service or that it is due to a service-connected left knee disability. The Veteran's lay statements of record are competent insofar as they report right knee pain and instability which are capable of lay observation. See Layno, 6 Vet. App. at 469. However, to the extent that his statements assert a nexus between his current right knee disorder and his service-connected left knee disability, such statements are of little probative value, as he is not shown to possess expert orthopedic knowledge. See Jandreau, 492 F.3d at 1376-77. Also, while the December 2004 VA treatment records indicate that the Veteran's right knee disorder may be associated with his left knee disability, greater probative value is afforded to the subsequent March 2013 VA examiner's opinion (which was well-supported by reference to current medical literature) which concluded that the right knee ACL deficiency was less likely than not proximately due to or the result of the a service-connected left knee disability. Thus, the preponderance of the evidence weighs against the claim of entitlement to service connection for a right knee disorder, to include as secondary to left knee disability. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the appeal is denied. Lumbar Spine In January 2014, a private physician diagnosed the Veteran with mechanical low back syndrome. He noted that this was an umbrella diagnosis that covered a multitude of abnormal pathology related to a chronic painful lumbar region. Therefore, a current low back disorder is shown. Service treatment records do not document any complaints, treatment, or diagnosis of a lumbar spine disorder. A physical examination at service enlistment in July 1981 documents a normal clinical evaluation, and the Veteran denied any related conditions in a concurrent Report of Medical History. Additionally, while the findings of a December 1981 Physical Evaluation Board document a left knee disability, there are no complaints regarding the lumbar spine. Therefore, there was no low back disorder noted in the service treatment records. As the evidence does not reflect an in-service incurrence or injury related to the low back, the second element (in-service incurrence) is not demonstrated with respect to the lumbar spine, the appeal for service connection on a direct basis is denied. As to the issue of secondary service-connection, the evidence is in conflict. On one hand, post-service VA treatment records from August 2001 document that the Veteran's lumbar spine was not being affected by his left knee symptoms. On the other hand, VA treatment records from December 2004 indicate that the left knee was aggravating the lumbar spine symptoms. In January 2014, a private physician diagnosed the Veteran with mechanical low back syndrome. He noted that this was an umbrella diagnosis that covered a multitude of abnormal pathology related to a chronic painful lumbar region. As explained, the syndrome could be caused by a number of different etiologies, including postural low back pain, facet joint syndrome, lumbar bulging disc, and degenerative joint or disc disease. The precipitating event could be an acute injury or secondary to chronic insults to the lumbar spine, with typical resulting chronic back pain that can vary from intermittent to daily complaints. The physician also submitted an orthopedic treatise which explained the biomechanical effects of limping on the spine and the consequences of an unbalanced gait, which could come from any source that resulted in the normal mechanical forces being altered. The private physician noted that specifically, the Veteran's pain from weight bearing on his left lower extremity resulted in the natural tendency to diminish the weight on his left lower extremity and place more weight on his right lower extremity, which was a classical scenario for individuals who for one reason or another could not place normal weight bearing stresses on one of their lower extremities. Consequently the change in gait resulted in a significant alteration in the normal mechanical forces that were transmitted through the lower extremities into the pelvis and subsequently the lumbar spine. Thus, the private physician concluded that it was at least as likely as not that the Veteran's service-connected left knee injury was the direct cause of his present lumbar spine disorder. Thus, after consideration of all of the evidence, including the competent, highly probative, and thorough January 2014 private medical opinion, the evidence is at least in equipoise with regard to the claims of entitlement to a lumbar spine disorder, to include as secondary to his service-connected left knee total arthroplasty. Therefore, with application of the benefit of the doubt doctrine, service connection for the lumbar spine disorder as secondary to a service-connected left knee disability is warranted, and the appeal is granted. Neurogenic Bladder In a February 2014 VA examination, the Veteran was diagnosed with a neurogenic bladder. Therefore, a current disorder is shown. Service treatment records do not document any complaints, treatment, or diagnosis of a neurogenic bladder. A December 1981 Physical Evaluation Board report documents a left knee disability but there are no complaints documented regarding the bladder. Therefore, there was no bladder disorder noted in the service treatment records. As the evidence does not reflect an in-service incurrence or injury related to the bladder, the second element (in-service incurrence) is not demonstrated with respect to the bladder, the claim for service connection on a direct basis must be denied. The Veteran primarily asserts that his neurogenic bladder is due to his low back disability, which is now service-connected. There are essentially only two pieces of evidence addressing the neurogenic bladder as secondary to a low back disability and they both suggest a relationship. VA treatment records from December 2004 diagnose a neurogenic bladder, which was suspected to be related to back pain. Additionally, a January 2014 private medical opinion stated that the Veteran's neurogenic bladder may be secondary to his lower lumbar pathology. Although the private physician recommended further evaluation to determine the exact etiology of the Veteran's bladder difficulties, the evidence is sufficient to establish that a neurogenic bladder is secondary to a now service-connected lumbar spine disability. Therefore, with application of the benefit of the doubt doctrine, service connection for a neurogenic bladder as secondary to a service-connected lumbar spine disability is warranted and the appeal is granted. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Mood Disorder The Veteran's mood disorder is currently rated as 30 percent disabling from October 28, 2011, under DC 9434 of the General Rating Formula for Mental Disorders. Under the applicable rating criteria, a 30 percent rating is warranted where there is 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent disability rating is warranted when there is 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 disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals 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. Finally, a 100 percent disability rating is warranted when there is 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. One factor for consideration is the global assessment of functioning (GAF) score, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). A global assessment of functioning score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). Turning to the evidence of record, VA treatment records from January 2012 document the Veteran's diagnoses of anxiety disorder and depression, with a GAF of 46. He appeared obsessive and overly focused on his pain, with severe depression and symptoms of anhedonia, dysphoria, insomnia, anergia, low self-esteem, appetite impairment, and impaired concentration nearly every day. In May 2012, the Veteran was assigned a GAF of 55 due to his situational stressors related to health and physical limitations that decreased his ability to exercise, which was his primary source of stress relief. In June 2012, he again endorsed anhedonia, dysphoria, insomnia, feeling like a failure, impaired concentration, and passive suicidal thoughts, with a GAF of 48. In August 2012 and October 2012, his symptoms did not appear to improve, and his assigned GAF remained 48. Upon mental status examination in January 2013, he continued to have a low mood and anxiety, with normal speech, attention, concentration, memory, and thoughts. He denied hallucinations. He remained diagnosed with anxiety and depression, with a GAF of 50. In February 2013, he was diagnosed with a mood disorder due to general medical conditions which resulted in a GAF of 55 and 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 medication. In May 2013, his GAF was again lowered to 50. In July 2013, the Veteran's fiancé submitted a statement documenting his severe pain and agitation which required her to avoid his mood swings. She noted that he was unable to handle any sort of stress without decompensating and that he experienced impaired concentration, depression, isolation, anhedonia, and a decline in personal hygiene. During a private psychiatric evaluation in July 2013, the Veteran complained of depression, dysphoria, anxiety, irritability, initial insomnia, poor concentration, decreased energy, apathy, and forgetfulness, all of which were continuously severe for the past two years, with a spontaneous worsening of symptoms in 2011. He acknowledged one prior suicide attempt by medication overdose in 1999 and with ongoing suicidal ideation as recently as the day of the evaluation. The private physician documented insomnia and chronic sleep impairment, low energy with weight gain, poor concentration, impaired memory, and limited insight. He diagnosed mood disorder due to chronic pain with major depressive-like features and assigned a GAF of 50. Notably, the private physician found that the Veteran's severe psychological symptoms resulted in deficiencies in most areas of occupational and social function, with frequent suicidal ideation, continuous depression and anxiety affecting his ability to function independently, social withdrawal, limited capacity to establish and maintain effective relationships, and no capacity to adapt to stressful circumstances. The Veteran had these continuously severe symptoms without episodes of improvement since 2011, and he was, therefore, unfit to follow substantially gainful employment as a result of his mood disorder. VA psychiatric treatment records from May 2014 document ongoing depression and anxiety. In February 2015, the Veteran reported often feeling depressed and wishing he were dead, having thoughts of taking his life with a plan to overdose. In July and September 2015, he expressed having chronic thoughts of death and often wishing he did not wake up in the morning. In December 2015, he had a score of 27 in the PHQ-9 depression Scale, warranting treatment for depression using antidepressant, psychotherapy and/or a combination of treatment. Through April and May 2016, he expressed continuing fleeting, intermittent passive suicidal ideations. Through June and July 2016, he reported chronic pain which contributed to feelings of depression, lack of ability to engage in enjoyable activities consistently, low motivation, and continued to be at a risk for suicide. Based upon the evidence of record, including that specifically discussed above, and resolving any reasonable doubt in favor of the Veteran, an initial 70 percent rating, but no more, is warranted for a mood disorder for the entire period on appeal. Notably, the Veteran has consistently endorsed suicidal ideation, and near continuous depression which affected his ability to function independently. Additionally, the Board affords great probative value to the comprehensive July 2013 private psychiatric evaluation which documents the Veteran's severe psychological symptoms that resulted in deficiencies in most areas of occupational and social function, with frequent suicidal ideation, continuous depression and anxiety affecting his ability to function independently, social withdrawal, limited capacity to establish and maintain effective relationships, and no capacity to adapt to stressful circumstances. The Veteran had these continuously severe symptoms without episodes of improvement since 2011, and he was, therefore, unfit to follow substantially gainful employment as a result of his mood disorder. Additionally, the Veteran's assigned GAF scores from 46 to 55 throughout the appeal period reflect ongoing moderate to severe psychiatric symptoms. See Carpenter, 8 Vet. App. at 242-44. The Board is mindful that the rating schedule does not assign disability percentages based solely on global assessment of functioning scores, 38 C.F.R. § 4.130, hence the GAF scores assigned during the period are but one factor to be considered in conjunction with all the other evidence of record. In light of the totality of the evidence, the GAF scores are consistent with an initial 70 percent rating throughout the appeal period. However, the preponderance of the evidence of record weighs against finding that the Veteran's mood disorder has resulted in total occupational and social impairment nor are his symptoms of similar severity, frequency, and duration in order to warrant an increased 100 percent rating throughout the rating period. While he is obviously impaired, he has not demonstrated symptoms consistent with or like or similar to those at a 100 percent rating. For example, the Veteran was specifically found not to have total occupational and social impairment in the July 2013 assessment. Further, he did not have panic attacks more than one a week, impaired memory, flattened affect, speech was not illogical, obscure, or irrelevant, no impaired judgment, no gross impairment of thought processes, and no disorientation. Further, a reasonable reading of the medical records is that he was able to participate with the medical personnel in his health care decisions and was cooperative during the examinations and assessments. He provided an accurate medical history and was noted to be appropriately groomed and dressed. In conclusion, an initial 70 percent rating, but no higher, is warranted for the entire period on appeal, and to that extent, the appeal is granted. Next, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as depression, anhedonia, dysphoria, insomnia, anergia, low self-esteem, poor appetite, passive suicidal thoughts, inability to handle stress, isolation, decline in personal hygiene, and impaired concentration, are "like or similar to" those explicitly listed in the rating criteria, which considers symptoms such as impairment of memory, impaired judgment, disturbances of motivation and mood, panic or depression, impaired impulse control, and difficulty adapting to stressful circumstances. Mauerhan, 16 Vet. App. at 443. Moreover, the Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his psychiatric disability is more severe than is reflected by the assigned rating. As was explained above, the criteria for an even higher rating were considered, but the now-assigned 70 percent rating is most appropriate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the service-connected disabilities, and referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted. Left Knee As discussed in the Introduction above, to the extent that the Veteran previously initiated an appeal with respect to his January 2011 claim of entitlement to an increased rating for a left knee disability, the Board has considered the issue in conjunction with his claim of entitlement to an effective date prior to December 2, 2011, for the grant of a 60 percent rating for left knee total arthroplasty. For the relevant period on appeal, the Veteran's left knee disability is rated as 100 percent disabling from April 28, 2009, at 30 percent disabling from June 1, 2010, and at 60 percent disabling from December 2, 2011. Given the assignment of a 100 percent temporary total disability rating prior to June 1, 2010, the Board will limit its consideration to the relevant period from June 1, 2010 to the present. The Veteran's left total knee replacement is rated under DC 5055, which provides for a 100 percent rating for one year following implantation of prosthesis and a minimum 30 percent rating following that one-year period. 38 C.F.R. § 4.71a, DC 5055 (2015). Where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. A February 2011 VA knee examination documents the Veteran's ongoing left knee pain since his April 2009 surgery, without improvement. He endorsed relevant symptoms including giving way, pain, stiffness, and tenderness, without deformity, instability, weakness, incoordination, decreased speed of joint motion, dislocation or subluxation, locking, effusions, or flair ups of joint disease. His standing limitations were 15-30 minutes and walking limitations were between one-quarter mile and one mile. He displayed an antalgic gait, without abnormal weight bearing. The physical examination revealed bony joint enlargement, crepitus, tenderness, pain at rest, abnormal motion, and guarding of movement. Range of motion was limited to 100 degrees flexion, with normal extension, and objective evidence of pain throughout. There were resulting decreased mobility problems with lifting and carrying, and pain, with moderate overall effects based on Veteran's history and symptoms. VA medical records document chronic left knee effusion from January 2010 through 2011, and that the Veteran had been walking with an antalgic gait since the surgery, with required assistive devices including a cane, Canadian crutches, and eventually a walker. In November 2011, he continued with diffuse soreness in the left knee, worsened with walking. In July 2012, a private physician opined that the Veteran's chronic left knee pain with genu recurvatum status-post left knee total arthroplasty resulted in very limited functional capacity which would prevent him from obtaining and participating in substantial gainful employment. Private treatment from March 2013 documents his limited range of motion with chronic residual significant painful motion. In July 2013, the Veteran's fiancé described how he experienced severe pain and inflammation almost all the time after his left knee surgery, and that instead of getting better after the surgery, everything went wrong. She noted that his left knee problems limited his ability to enjoy life. The following month, the Veteran reported immediate pain and instability following his left knee surgery, treated unsuccessfully with rehabilitation and physical therapy. He stated that he went to vocational rehabilitation to return to his prior training as a chef, but that it only lasted two weeks because of the increased pain, instability, and limited range of motion in his left knee. He concluded that nothing has changed with his left knee problem and that he continued to have severe pain, instability, and limitation of motion. Following a review of the relevant evidence of record, and after resolving reasonable doubt in favor of the Veteran, the service-connected left knee disability has resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity for the entire relevant period on appeal, from June 1, 2010. As such, a 60 percent rating is warranted from that date, but no sooner, and to that extent, the appeal is granted. By granting a higher rating effective June 1, 2010, the earlier effective date claim is rendered moot. Earlier Effective Date for TDIU In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award 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 that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). A "claim" is defined broadly to include 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). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). The law provides that a TDIU may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration under 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). In order to grant TDIU on an extraschedular basis, the record must reflect that circumstances, apart from nonservice-connected conditions, place the veteran in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of service-connected disability, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). With consideration of the Board's decision herein, the Veteran has now met the schedular criteria for a TDIU rating from June 1, 2010. Moreover, without duplicating discussion of the relevant evidence of record discussed above, there is ample evidence that he not been gainfully employed since 2008, prior to his left knee surgery, and that such unemployment is a result of his service-connected mood disorder, left knee total arthroplasty, and lumbar spine disorder. Notably, Social Security Administration (SSA) disability records document that he is unemployable due to his service-connected left knee disability, as well as his lumbar spine disorder, which is now service-connected. The SSA decision concludes that the Veteran's residual functional capacity has been reduced to less than a sedentary level of exertional activity secondary to his severe left knee and low back pain difficulties which limit his ability to perform prolonged sitting, standing, walking, or bending. Based upon the relevant evidence of record, and resolving any reasonable doubt in favor of the Veteran, the preponderance of evidence weighs in favor of an effective date for the grant of a TDIU rating from June 1, 2010, consistent with the Board's grant of an increased 60 percent rating for his service-connected left knee disability. To that extent, the appeal is granted. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With respect to the claim for a neck disorder, the Veteran has withdrawn that claim so no further duty to notify or the duty to assist is needed. With respect to the three claims to reopen based on new and material evidence and the claims for service connection for the lumbar spine and a neurogenic bladder, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered as to these issues. With respect to the remaining claims, the Veteran has been provided with prior adequate notice regarding how to substantiate his service connection claim on direct and secondary bases, the assignment of disability ratings and effective dates, and a TDIU. Moreover, he has not alleged prejudice with respect to a lack of notice. As such, no further notice is required prior to adjudication of the claims. Regarding the duty to assist, the RO has obtained and associated with the claims file the Veteran's service treatment records, VA treatment records, private treatment records, SSA disability records, and various lay statements. The Veteran was afforded relevant VA examinations which were adequate to decide the claims because they were based on a thorough examinations, appropriate diagnostic tests, and reviews of the relevant medical history. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Neither the Veteran nor his attorney has identified any outstanding evidence relevant to his claims. As all necessary development has been accomplished, no further notice or assistance is required for a fair adjudication of the claims, and appellate review may proceed without prejudice to the Veteran. ORDER The application to reopen a previously denied claim of entitlement to service connection for a neck disorder is dismissed. Based on the receipt of new and material evidence, the application to reopen a claim of entitlement to service connection for a lumbar spine disorder is granted and the claim is reopened. Based on the receipt of new and material evidence, the application to reopen a claim of entitlement to service connection for a right knee disorder is granted and the claim is reopened. Based on the receipt of new and material evidence, the application to reopen a claim of entitlement to service connection for a neurogenic bladder is granted and the claim is reopened. Service connection for a lumbar spine disorder as secondary to left knee total arthroplasty is granted. Service connection for a right knee disorder, to include as secondary to left knee total arthroplasty, is denied. An initial 70 percent rating for a mood disorder is granted for the entire period on appeal. A 60 percent rating for left knee total arthroplasty is granted from June 1, 2010. An effective date of June 1, 2010, is warranted for the grant of a TDIU rating. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs