Citation Nr: 18156846 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-28 225A DATE: December 11, 2018 ORDER The appeal seeking entitlement to service connection for limited range of motion of the right hand is dismissed. The appeal seeking entitlement to service connection for a mental condition (other than service-connected posttraumatic stress disorder) is dismissed. The appeal seeking entitlement to service connection for sharp pains in the feet is dismissed. The appeal seeking entitlement to service connection for shortness of breath is dismissed. The appeal seeking entitlement to service connection for cervical spine strain is dismissed. The appeal seeking entitlement to service connection for obstructive sleep apnea is dismissed. The appeal seeking entitlement to service connection for sharp pain in fingers of the left hand is dismissed. The appeal seeking entitlement to service connection for sharp pain in fingers of the right hand is dismissed. The appeal seeking entitlement to service connection for memory loss is dismissed. Entitlement to service connection for hearing loss in the right ear is denied. Entitlement to a disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing payment of monetary awards. Entitlement to a disability rating of 20 percent, but no higher, for grade I levorotatory scoliosis (claimed as sharp pain in the spine) is granted, subject to the regulations governing payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the regulations governing payment of monetary awards. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for facial fractures is remanded. Entitlement to service connection for tendonitis of the right shoulder (limited range of motion of the right arm) is remanded. Entitlement to service connection for bilateral leg weakness, to include as due to service-connected grade I levorotatory scoliosis, is remanded. FINDINGS OF FACT 1. At the September 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his agent notified the Board that he wished to withdraw the appeals for the issues of entitlement service connection for limited range of motion of the right hand, a mental condition other than PTSD, sharp pains in the feet, shortness of breath, cervical spine strain, obstructive sleep apnea, sharp pain in the fingers of the left and right hands, and memory loss. 2. A right ear hearing loss disability was not manifested in service; sensorineural hearing loss (SNHL) in the right ear was not manifested in the first post service year; and the preponderance of the evidence is against a finding that the Veteran has a current right ear hearing loss disability that is related to an event, injury, or disease in service. 3. The Veteran’s PTSD symptoms result in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 4. For the period at issue, the Veteran’s grade I levorotatory scoliosis has been manifested by flexion limited to 40 degrees with painful motion, however, there is no evidence of ankylosis. 5. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to service connection for limited range of motion of the right hand have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal for entitlement to service connection for a mental condition (other than service-connected PTSD) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal for entitlement to service connection for sharp pains in the feet have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal for entitlement to service connection for shortness of breath have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of an appeal for entitlement to service connection for cervical spine strain have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of an appeal for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria for withdrawal of an appeal for entitlement to service connection for sharp pain in fingers of the left hand have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 8. The criteria for withdrawal of an appeal for entitlement to service connection for sharp pain in fingers of the right hand have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 9. The criteria for withdrawal of an appeal for entitlement to service connection for memory loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 10. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 11. The criteria for entitlement to a disability rating of 70 percent for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9411. 12. The criteria for entitlement to a disability rating of 20 percent for service-connected grade I levorotatory scoliosis has been met. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Codes 5237-5243. 13. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1992 to August 1992 and from April 1996 to June 2010. A videoconference hearing was held before the undersigned Veterans Law Judge in September 2017. A transcript is of record. At the hearing, the record was held open for 60 days for the submission of additional evidence. The Veteran waived Agency of Original Jurisdiction (AOJ) review of any subsequently added evidence. Additional evidence was received following the hearing and is considered herein. Withdrawn Issues 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. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. At the September 2017 Board hearing, the Veteran, through his agent, withdrew on the record the appeals for entitlement to service connection for limited range of motion of the right hand, a mental condition (other than service-connected PTSD), sharp pains in the feet, shortness of breath, cervical spine strain, obstructive sleep apnea, sharp pain in the fingers of the left and right hand, as well as memory loss and, hence, there remain no allegations of errors of fact or law for appellate consideration in these matters. See September 2017 hearing transcript. Notably, it was explained to the Veteran at the hearing that no further action would be taken to address his claims, and he expressed his agreement. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303(a). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Certain chronic diseases, such as organic diseases of the nervous system are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. § 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hearing loss in the right ear Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran seeks service connection for right ear hearing loss, which he asserts is related to his exposure to loud noises in service. Specifically, he testified that he was exposed to loud noises in Iraq, at the rifle range as well as an incident when a Humvee blew up which generated loud noises. After reviewing the claims file, the Board concludes that although the Veteran has a current right ear hearing disability (as that term is defined in VA regulations), which is a chronic disease under 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Significantly, the Veteran’s service treatment records are silent for any complaints, findings, treatment, or diagnoses related to hearing loss. His post service records also do not show that right ear hearing loss was diagnosed until many years after is separation from service. In sum, the evidence does not show that the Veteran’s sensorineural hearing loss was diagnosed within one year of his leaving active duty so as to warrant service connection on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. There is also no notation of hearing loss during service, so the chronic provisions and the continuity of symptomatology are not established. Indeed, the Veteran’s report of noise exposure in his hearing testimony was somewhat vague. Service connection for right ear hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right ear hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran attended an audiological examination in May 2011. At that time, the examiner indicated the Veteran showed no response to any pure-tone stimuli or speech in his right ear. Based on those results, he would be diagnosed with profound sensorineural hearing loss in the right ear. However, the examiner noted the conflicting audiological evaluation dated February 2010 which showed his hearing to be essentially within normal limits in both ears. In light of the inconsistent test results, the audiologist recommended another evaluation prior to adjudicating the claim. See VA examination. A subsequent VA examination was performed in March 2012. The VA examiner diagnosed the Veteran with right ear hearing loss pursuant to VA standards but indicated the Veteran had normal hearing in both ears when tested in February 2010 in service, with the exception of 35 dB in the right ear at 4000 Hz. On examination, he showed loss in both ears for some but not all frequencies. The audiometric configuration shown did not suggest that the loss was due to noise exposure in the military. Additionally, the examiner noted that while he felt the results of the testing were fairly reliable, the Veteran had been previously seen at the VA in March 2011 with results that were deemed unreliable. See examination. While the Veteran believes right right ear hearing loss disability is related to an in-service injury, event, or disease, including an in-service Humvee explosion, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt rule. However, where the evidence of record preponderates against a claim, the benefit of the doubt rule does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 2. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD. The average impairment of earning capacity due to PTSD is determined by the criteria set out in the General Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces 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 evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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. Id. Although PTSD is rated under the General Rating Formula, the use of the term “such as” in 38 C.F.R. § 4.130 indicates that the listed symptoms are not intended to constitute an exhaustive list. Rather, the symptoms listed under the General Rating Formula for Mental Disorders are to serve as examples of the type and severity of symptoms or their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms to be considered when rating a Veteran’s PTSD are not limited to those listed in 38 C.F.R. § 4.130. Instead, VA shall consider all symptoms of a Veteran’s PTSD that affect his level of occupational and social impairment, including, if applicable, those identified in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided additional guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Specifically, the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Id. at 2. It held 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. Id. at. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 2. The Veteran’s service-connected PTSD is currently assigned a 50 percent rating. After reviewing the pertinent evidence of record, the Board finds that the symptoms related to his service-connected PTSD more closely approximate the 70 percent disability rating. In a January 2011 statement from the Veteran’s friend, it was stated that the Veteran’s mental state remained in the war. The Veteran’s friend noted that he could hold a full conversation with himself and often talked to people that were not present. He also described the Veteran as suffering from separation anxiety and crying uncontrollably when someone would need to leave. Moreover, he had nightmares where he felt someone was chasing after him. The Veteran’s friend noted that the Veteran’s appetite was minimal and he had lost significant weight. The Veteran’s friend described him as a child who needed constant supervision and instruction. See statement. On July 2011 VA examination, the Veteran reported nightmares, insomnia, intrusive thoughts, flashbacks, hyperviligence, avoiding driving on roadways and avoiding any activities that he used to participate in. He reported that the severity of his symptoms was moderate to severe. His avoidance symptoms included avoiding talking about, avoiding activities, places and people and having no desire to be around anyone but his wife and daughter. The Veteran also reported having a history of auditory hallucinations, experiencing panic attacks 7-10 times per month along with depressed mood, anhedonia, decreased appetite, insomnia, psychomotor agitation, low energy, and difficulty with concentration. On mental status examination, the Veteran was found to be well-dressed and groomed and his behavior was within normal limits. The Veteran’s response to the interview was cooperative and his communication was clear. His eye contact was limited and his mood was anxious with congruent affect. Moreover, his thought processes and content were normal and he denied any suicidal ideation. There was no evidence of psychosis and his insight and judgment appeared to be adequate. He reported unemployment due to his mental difficulties but remained independent with his activities of daily living. The examiner did report the Veteran’s performance at the very least suggested that he may have been exaggerating his level of impairment. See examination. A March 2012 statement from the Veteran’s wife reflected the change in the Veteran from his military service. She described difficult sleeping habits, causing them to sleep in separate rooms. The difficulty included finding the Veteran at times experiencing a flashback but being afraid to help him. Similarly, the Veteran’s mother submitted a statement also describing the sleep difficulties and daily challenges the Veteran faced following the war. See statements. In a March 2012 statement, the Veteran reported he only left the house when he needed to, such as for a hospital appointment and church. He had lost interest in things he used to enjoy. See statement. Another VA examination was performed in March 2012. At that time, the examiner noted that the Veteran had “moderate impairment” due to his PTSD symptoms of hypervigilance, difficulty concentration, irritability, intense psychological/physiological distress at exposure to internal/external cues that symbolize or resemble an aspect of the trauma. The examiner opined the Veteran’s PTSD symptoms caused occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. His symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Additional symptoms including night sweats, anhedonia, fatigue, lethargic insomnia, avoidance of crowds, isolation, and appetite were included. The Veteran denied suicidal and homicidal ideations, as well as hallucinations. See examination. VA mental health treatment notations show continuous treatment for the Veteran’s PTSD symptoms. He repeatedly denied suicidal ideation, while reporting symptoms including sleep disturbance, social isolation, memory loss, nightmares, and flashbacks. See CAPRI. The Veteran testified at the Board hearing in September 2017 that he suffers from flashbacks, hallucinations and awakening in the middle of the night feeling like he is in a combat zone. He also described an emptiness feeling and a loss of interest in activities he used to enjoy. He did not like being around a lot of people. In fact, he indicated if he was not around family then he did not go out at all. He described a disassociation with the “outside world”. Additionally, the Veteran testified to anger and irritability associated with his PTSD. His wife stated he engaged in verbal altercations with people on a daily basis. The Veteran also indicated he suffered from panic attacks with overwhelming feelings of nervousness or dread about four days out of a week and flashbacks about three to four times a week. He also suffered from hallucinations and sometimes needed to be reminded to maintain his personal hygiene. The Veteran also reported difficulty with his memory, requiring him to write important information and appointments down or getting help from his wife. Moreover, the Veteran indicated he suffers from impaired sleep, getting only one to two hours of sleep a night. This caused him to have issues with his ability to function the next day. See transcript. Following the Board hearing, another VA examination was performed in November 2017. The examiner opined the Veteran’s PTSD caused occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner found the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The Veteran self-reported experiencing hallucinations and extreme sleep disturbance, including only 2 hours of sleep in a week. He also reported poor memory, mood changes, sadness and depression, loss of interest and pleasure, crying spells, loneliness, low self-worth, fatigue, lack of motivation, sleeping pattern/hours, guilt/shame and withdrawal from people. Anger and irritability were also reported along with flashbacks and nightmares. He had no plans or intent regarding suicidal or homicide. On examination, the Veteran’s overall MMSE score suggested normal cognitive functioning. Occupationally, the examiner found the Veteran’s symptoms causes moderate impairment in social functioning and would challenge his ability to perform in an occupational situation. See examination. The aforementioned medical and lay evidence of record supports the finding that the Veteran’s symptoms more closely approximate rating criteria for a 70 percent disability rating. In so finding, the Board acknowledges the mentions of possible malingering of symptomatology indicated by examiners, but finds the overwhelming evidence indicates the Veteran is more disabled than his present rating. In support of that finding, the VA examiners found the Veteran’s symptoms caused occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks. In that vein, it is important to note that the Veteran is married and lives with his wife and described a good relationship with his daughter but indicated he has disassociated with the outside world. Additionally, there was no evidence of suicidal or homicidal ideations or an inability to perform activities of daily living at any point during the record. However, in giving the Veteran the benefit of the doubt, his symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships more closely approximate the 70 percent disability rating. There is no evidence to support a total occupational or social impairment in order to warrant a 100 percent disability rating. As noted, the Veteran maintains positive relationships with his family and apart from occasionally needing to be reminded of his personal hygiene and sometimes having auditory hallucinations, it is not shown that he otherwise endorsed any of the symptoms associated with a 100 percent disability rating for mental disorders. It is also not shown that the Veteran suffers from any symptoms of similar frequency or severity to find that he has total occupational or social impairment from his PTSD. Entitlement to a compensable disability evaluation for service-connected grade I levorotatory scoliosis (claimed as sharp pain in the spine). Service connection was granted for Grade I levorotatory scoliosis in the July 2012 rating decision and assigned a non-compensable rating effective December 17, 2010. See decision. It is the Veteran’s contention that he warrants a compensable rating due to his symptoms. The General Rating Formula for Diseases and Injuries of the Spine assigns ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is only warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The normal range of motion for the thoracolumbar spine is from 0 degrees to 90 degrees forward flexion, 0 degrees to 30 degrees extension, 0 degrees to 30 degrees left and right lateral flexion, and 0 degrees to 30 degrees left and right lateral rotation. 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5242, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71, Plate V. Combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5242, General Rating Formula, Note (5). Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially ‘absurd results’. Id. at 43. The General Rating Formula also provides for the assignment of separate disability ratings under appropriate diagnostic codes for any objective neurologic abnormalities associated with a disease or injury of the spine, including, but not limited to, bowel or bladder impairment. 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5242, General Rating Formula, Note (1). Pursuant to Diagnostic Code 5243 intervertebral disc syndrome (IVDS) is rated under either the General Rating Formula outlined above or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating IVDS. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating IVDS, Note (1). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. After reviewing the pertinent evidence of record, the Board finds that the symptoms related to the Veteran’s service-connected grade I levorotatory scoliosis more closely approximates the 20 percent disability rating criteria. A May 2011 VA examination reported a sharp pain present 80 percent of the time. The Veteran highlighted the middle of the lumbar area at the midline with pain worse with prolonged standing. He did not report any radiating pain. The Veteran also denied urinary or fecal incontinence, except that he has urinated on himself 6-7 times in the past 2 months. At those times, he was laying in bed and could not get up. He denied flare-ups. On examination, his range of motion was 70 degrees of forward flexion, 16 degrees of extension, 16 degrees of bilateral lateral flexion and 15 degrees of bilateral lateral rotation. There was some diminished movement with repetition. The Veteran complained of pain at the end of the lateral rotation but no objective signs of pain were noted. Normal muscle strength, motor strength and sensory examination was found. See examination. In a March 2012 statement, the Veteran described severe pain in his back. He indicated he could hardly do anything physical. See statement. Another VA examination was performed in March 2012. The Veteran reported flare-ups with movement of the back and any weight lifting. The flare-up would be relieved in about an hour with medication, cream and rest. On examination, the Veteran’s range of motion was 40 degrees of forward flexion, 10 degrees of extension, 10 degrees of bilateral lateral flexion, and 15 degrees of bilateral lateral rotation. Additional functional loss including less movement than normal, pain on movement and interference with sitting, standing and/or weight-bearing was documented. Additionally, guarding and/or muscle spasms were present but did not result in abnormal gait or spinal contour. Muscle strength testing was normal and there was no muscle atrophy noted. His sensory examination was also normal. No radiculopathy, neurological abnormalities or IVDS were found. The Veteran also did not require the use of an assistive device. See examination. At the Board hearing, the Veteran, with the help of his wife, testified he had a compact back fracture from carrying heavy things that caused his spine to drop and noted that he might surgery to fix it. Because of the fracture, he described symptoms such as pain, inability to bend over, problems walking and needing to brace himself. He also wore a back brace for support. Furthermore, the Veteran testified to incapacitating episodes where he was unable to get out of bed due to the pain roughly two days out of a week. His wife indicated sometimes it was closer to four days a week. He was also on prescribed bed rest from the doctors for two months. An updated VA examination was performed in November 2017. The Veteran reported he was in a lot of pain with difficulty getting out of bed, going up and down stairs, and requiring assistance with daily activities. He reported flare-ups in which if he was in the wrong angle he had extreme discomfort. Functionally, it was difficult for him to prepare meals since standing up was unbearable. Sitting down and riding in cars for long periods of time was also difficult, so the Veteran did not drive anymore. Day to day activities were hard and he was unable to work. Range of motion testing showed 40 degrees of forward flexion, 10 degrees of extension, 20 degrees of bilateral lateral flexion and bilateral lateral rotation. Pain was noted on the examination and caused functional loss. There was also evidence of pain with weight bearing described as moderated sharp throbbing pain to lumbar spine on palpation and with active passive range of motion. Pain and weakness were noted as causing functional loss. There was no evidence of guarding or muscle spasms, muscle strength was normal, there was no muscle atrophy and his sensory examination was normal. There was, however, evidence of radiculopathy. In particular, the examiner found mild constant pain on the bilateral lateral extremities and mild numbness on the bilateral lateral lower extremities. There was no evidence of ankylosis of the spine, no neurologic abnormalities and no evidence of IVDS. See examination. Considering the medical evidence above, the Board finds a disability rating of 20 percent is warranted under the criteria for the General Rating Formula. The Veteran’s forward flexion, with consideration of pain and repetitive use, was the most limited at 40 degrees. As such, a rating of 20 percent is supported. There is no evidence of forward flexion limited to less than 30 degrees or ankylosis in order to warrant a higher evaluation. It is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-07. The evidence includes the Veteran’s consistent complaints of flare-ups of low back pain. Additionally, the record includes buddy statements with corroborate the Veteran’s reports of pain. However, the Board finds these symptoms and limitations are adequately contemplated by the rating criteria. In particular, the record shows that the Veteran has not used an assistive device for ambulation. Functional loss including less movement than normal and pain on movement were noted by the examiners. Finally, throughout the period at issue, the Veteran has retained normal muscle strength and did not have any muscle atrophy. Although the record has not reflected a diagnosis of IVDS, the Board has nevertheless considered whether the Veteran may be afforded a higher rating under Diagnostic Code 5243 for that condition. The Board finds, however, that although the Veteran reported incapacitating episodes of back pain, requiring him to stay home and be off his feet, including a 2-month bed rest, the medical evidence of record does not reflect any physician prescribed bed rest over having a total of 4 weeks but less than 6 weeks during the past 12 months to warrant a higher rating under Diagnostic Code 5243. Moreover, there were also no reports of neurogenic bladder or neurogenic bowel symptoms to warrant a separate compensable rating. The Board, however, acknowledges the November 2017 VA examination did find a diagnosis of radiculopathy. In particular, the examiner found mild radiculopathy of both the right and left lower extremities. 38 C.F.R. § 4.124a, Diagnostic Code 8520 provides the rating criteria for evaluation of paralysis of the sciatic nerve. Under this provision, moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Pursuant to Diagnostic Code 8520, a finding of mild radiculopathy of the bilateral lower extremities does not warrant a compensable rating under Diagnostic Code 8520. Lastly, the Board acknowledges the Veteran’s Grade I levorotatory scoliosis existed prior to military service but was found to have been permanently worsened as a result of his service. As such, the preservice percentage is normally deducted before assigning any service connected evaluation less than 100 percent. Here, the preservice percentage is zero, therefore, no deduction is necessary. Accordingly, a rating of 20 percent for service-connected Grade I levorotatory scoliosis is supported. 3. Entitlement to a TDIU Total ratings, referred to as TDIU, may be assigned in the first instance by the Board or the Regional Office when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). Neither the effect of nonservice-connected disabilities nor of the veteran’s age may be considering in determining whether TDIU is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to warrant TDIU. A high rating is in itself recognition that the disability makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As a result of this decision, the Veteran is now service-connected for PTSD with a disability rating of 70 percent, effective June 30, 2010, and his service-connected Grade I levorotatory scoliosis is assigned a 20 percent disability rating, effective December 17, 2010. Accordingly, the tenets of 4.16(a) now apply. At the September 2017 Board hearing, the Veteran testified to difficulties being around others, memory lapses and sleep disturbances which impact his ability to function. Additionally, the Veteran’s wife testified that a loud noise in a workplace would cause the Veteran to be irritable or worse. Furthermore, the Veteran testified that he could not bend over to even tie his shoes so he was unable to work. The Veteran reported in VA Form 21-8940 that his PTSD and back prevented him from securing or following substantially gainful occupation. He further reported he had not worked since his separating from the military. He reported completing two years of college education with no additional education or training before becoming too disabled to work. See form. Additionally, Social Security Administration (SSA) records show the Veteran was found disabled as of February 2010 with a primary diagnosis of disorders of the ear and anxiety related disorders. See records. Regarding the Veteran’s back, VA medical examinations consistently report that he is able to complete sedentary work, while being precluded from performing manual labor. See examination and see examination. Additionally, the March 2012 VA medical examination evaluating the Veteran’s PTSD found that while there might be limitations in his ability to maintain employment, his moderate symptoms did not completely prevent him from engaging in gainful employment. See examination. However, the most recent VA medical examination evaluating the Veteran’s PTSD, completed in November 2017, found that his symptoms were more debilitating. The examiner indicated the symptoms would be present whether he was sitting or standing, and that the likelihood of functioning in a work setting in a productive manner was high likely to affect the level of reliability and productivity due to his symptoms. After weighing all the evidence of record, reported earlier in this decision, and resolving all doubt in the Veteran’s favor, the Board finds the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. While the VA examiners did continuously find that the Veteran would not be physically precluded from a seated position, the Veteran’s psychiatric symptoms would further limit the type of work the Veteran would be able to perform. He would certainly have very restrictive limitations with interacting with others in an office setting, combined with the fact he had no prior work experience outside of the military. As a result, he would have a lack of additional skills which would be transferable in order to obtain an office position. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Accordingly, entitlement to TDIU is warranted. 38 C.F.R. §§ 3.341(a), 4.16, 4.18, 4.19. REASONS FOR REMAND 1. Entitlement to service connection for a right and left knee conditions are remanded. At the September 2017 Board hearing, the Veteran testified that he felt knee pain in service while carrying ruck sacks and doing road marches. His wife further testified he had pain in his feet and legs following his participation in jump school. The Veteran indicated he was given knee braces and topical cream for the knee pain while in service but his knees continued to pop in and out. Because of the ongoing knee pain, he is currently treated at the VA. VA medical treatment records and examinations confirm the Veteran has a diagnosis of osteoarthritis in the knees. See record and See record. The March 2012 VA examiner raised the issue of malingering in his opinion, but did not address the Veteran’s lay contentions regarding continuity of symptomatology from his service injuries. See examination. As such, the Board finds a VA medical addendum opinion is required prior to adjudicating this claim. 2. Entitlement to service connection for facial fractures is remanded. The Veteran, with the help of his wife, testified at the Board hearing that he suffered a seizure in service which caused him to break all the bones around his right eye. As a result of the seizure and subsequent fall, his right eye drains water and has impaired his vision. A May 2011 VA examination reported the Veteran complained of blurred vision in the right eye following his fall from his seizure but his examination was otherwise unremarkable. His facial structures were symmetrical and his nose was normal. There was no evidence of any discomfort or pain, though he did complain of headaches. See examination. The subsequent June 2011 VA examination showed decreased bilateral visual acuity. See examination. However, the examiner noted he could not find an explanation for the decreased visual acuity as compared to his visual acuity in 2009, following his injury. In so finding, the examiner noted the Veteran was “not very cooperative during examination” and was found to be unstable and weaving back and forth at a point. He indicated he was on medication for migraines at the time. The examiner concluded he could not find anything to explain the decrease in his visual acuity and had no speculation on the issue. See examination. Giving the Veteran the benefit of the doubt, the Board finds an addendum medical opinion is necessary prior to adjudicating this claim in order to address the Veteran’s testimony regarding the continuity of his symptoms with his right eye following his fall. In particular, the issue of his right eye draining was not specifically addressed in these examinations. 3. Entitlement to service connection for tendonitis of the right shoulder (limited range of motion of the right arm) is remanded. Again, in giving the Veteran the benefit of the doubt, the Board finds a supplemental VA examination is necessary to evaluate the nature and etiology of any diagnosed right shoulder disability. The record includes the March 2012 VA examination which assessed the Veteran with pain in the joint involving the shoulder region. In so finding, however, the examiner noted concerns of possible malingering, due to a lack of effort exerted with requests for movement. See examination. Additionally, the medical evidence of record reports continuous right shoulder pain and limitation of movement. See records. Because the Veteran continues to assert in-service injury to his right shoulder throughout the record and in his hearing testimony, a supplemental examination to determine whether the Veteran has a present diagnosis of a disability to the right shoulder and if so, whether the disability is caused by his assertions of in-service injury is needed. 4. Entitlement to service connection for bilateral leg weakness, to include as due to service-connected grade I levorotatory scoliosis, is remanded. At the Board hearing, the Veteran testified he experiences bilateral leg weakness because of his back condition. In fact, he testified he was told by his VA doctors at Sonny Montgomery that his bilateral leg weakness is caused by his back. See transcript. While a VA examination showed the Veteran maintained normal bilateral leg strength, it does not appear that the Veteran’s updated VA medical records are included in his claims file now. In an abundance of caution, the Board finds a remand is necessary to associate the Veteran’s updated medical treatment records with his file to determine whether the Veteran has been diagnosed with leg weakness and if so, whether it is caused or aggravated by his back condition. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s updated VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of osteoarthritis of the bilateral knees. The examiner must opine whether it is at least as likely as not (1) related to an in-service injury, event, or disease, including in-service knee pain (2) manifested within a year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right eye vision and leakage is at least as likely as not related to his in-service seizure and fall. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service injury due to lifting and carrying. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed bilateral leg weakness. The examiner must opine whether any such disability is at least as likely as not related to an in-service injury, event, or disease. Additionally, the examiner must opine whether it is at least as likely as not (1) proximately due to service-connected grade I levorotatory scoliosis, or (2) aggravated beyond its natural progression by service-connected grade I levorotatory scoliosis. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel