Citation Nr: 1808387 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-10 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a cervical spine disability, claimed as a neck injury. 2. Whether the reduction in disability rating from 20 percent to 10 percent effective January 25, 2013 for degenerative disc disease (DDD) of the thoracolumbar spine was proper. 3. Entitlement to an increased rating in excess of 20 percent for DDD of the thoracolumbar spine. 4. Entitlement to a separate compensable rating for radiculopathy of the left lower extremity prior to January 25, 2013, as a neurological manifestation of the Veteran's service-connected thoracolumbar spine DDD. 5. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity as a neurological manifestation of the Veteran's service-connected thoracolumbar spine DDD. 6. Entitlement to an increased rating in excess of 30 percent for an acquired psychiatric disability, effective November 16, 2010. 7. Entitlement to a compensable rating for right knee strain, effective November 16, 2010. 8. Entitlement to a compensable rating for left knee strain, effective November 16, 2010. 9. Entitlement to a total rating based on individual unemployability (TDIU), effective November 16, 2010. REPRESENTATION Veteran represented by: Adam R. Luck, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from: October 1981 to March 1986; May 1988 to June 1990; May 2003 to September 2003; and March 2004 to August 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of August 2011 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In June 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). The transcript has been associated with the claims file. In the January 2013 rating decision, the RO granted service connection for radiculopathy of the left lower extremity as a manifestation of the Veteran's service-connected lumbar spine disability. A 10 percent evaluation was granted effective January 25, 2013. However, when the Veteran disagreed with the amount of compensation awarded for his lumbar spine disability, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for the disability due to his service-connected back disability. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 CFR § 4.71a, Note (1) (2017). As such, the Board concludes that when the Veteran appealed the rating assigned for his lumbar spine disability, his appeal encompassed ratings for all manifestations of the condition. Thus, the issues before the Board are as shown on the title page. With respect to the TDIU claim, the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. After review of the record, the Veteran's testimony during the June 2017 hearing, and statements of the Veteran's representative, the Board finds that a claim of entitlement to a TDIU has been reasonably raised by the record. The Board accordingly finds that this issue is presently before it pursuant to Rice, and must be considered in adjudication of this appeal. The Veteran's increased rating claims for his thoracolumbar spine disability and associated left lower extremity neurological disabilities, as well as his claim for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's cervical spine disability is attributable to his active duty service. 2. The reduction of the disability rating for the Veteran's thoracolumbar spine disability from 20 percent to 10 percent, effective January 25, 2013, did not comply with applicable law and regulations. 3. As of November 16, 2010, the Veteran's acquired psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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) and difficulty in adapting to stressful circumstances (including work or a work-like setting). 4. The Veteran's service-connected right knee disability is manifested by painful and limited motion. 5. The Veteran's service-connected left disability is manifested by painful and limited motion. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for the reduction of a 20 percent rating to a 10 percent rating for DDD of the thoracolumbar spine have not been met; restoration is warranted. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 3. The criteria for the assignment of a disability rating of 70 percent, but no higher, for the Veteran's psychiatric disability have been met, effective November 16, 2010. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 3.102 , 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9422 (2017). 4. The criteria for the assignment of a disability rating of 10 percent, but no higher, for right knee strain have been met, effective November 16, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5620 (2017). 5. The criteria for the assignment of a disability rating of 10 percent, but no higher, for left knee strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection - Cervical Spine 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; 38 C.F.R. § 3.303(a). Generally, in order to award service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The competence, credibility, and probative weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A review of the record reveals that the Veteran was diagnosed in April 1998 with arthralgia of the cervical spine and in August 2013 with a chronic cervical spine strain and DDD of the cervical spine. See April 1998 VA Examination; see also August 2013 Back Conditions Disability Benefits Questionnaire. The Veteran contends that service connection for a cervical spine disability is warranted because of injuries he sustained during a parachute jump in early 1989. See June 2017 Hearing Transcript. During his June 2017 hearing, the Veteran stated that during a nighttime static line jump at Fort Stewart, Georgia, his parachute did not fully deploy. At the time of the jump, he was carrying a 100 pound ruck sack. After a failed attempt to fully deploy his parachute, the Veteran attempted to drop the ruck sack; however, he was unable to fully release it. He stated that he then attempted to land on the left side of body so that he could avoid as much of the ruck sack weight on his legs as possible. Upon landing, he stated that he took much of the blow to his left buttock, but at the same snapped his head back at the time of the impact. Id. Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the preponderance of the evidence supports a finding of service-connection. The Veteran's service treatment records indicate that he suffered a chronic upper back injury during a parachute jump in January 1989. See April 1990 Statement of Medical Examination and Duty Status. The Veteran's squad leader stated that, to his knowledge, the Veteran reported that his straps did not release, and that he landed carrying the full weight of his equipment at the time of the parachute jump. Id. The squad leader could not remember if the Veteran reported that he was injured that night but did state that it was not uncommon for soldiers to receive injuries but wait to seek medical treatment until after completing the mission or returning to garrison. Id. In June 1990, a line of duty finding found that the January 1989 chronic upper back injury occurred in the line of duty through no fault of the Veteran. Id. During a January 1998 VA Examination, the Veteran reported that he developed pain in his neck, shoulder blades, and cervical spine area following the parachuting accident. Upon examination, the examiner stated that there was no limitation of motion to the Veteran's cervical spine; however neck extension to 15 degrees was painful. Additionally, lateral flexion on the right was painful, as well as rotation on the left. The Veteran was diagnosed with arthralgia of the cervical spine. In August 2013, the Veteran underwent a private examination for his cervical spine disability. The examiner opined that it was at least as likely as not that the Veteran's chronic cervical spine strain was a result of his parachuting accident in 1989. The examiner stated that it was his opinion that during the parachuting accident, the Veteran suffered a muscular strain to his cervical spine muscles equivalent to a whiplash injury. The examiner stated that while normal x-rays from the 1990s showed no bone or alignment abnormalities or evidence of prior trauma, this was consistent with a whiplash/strain injury as it would not be present on x-ray images. In May 2014, a VA medical opinion was obtained. Upon review of the available records, the medical practitioner opined that Veteran's DDD of the cervical spine was less likely than not related to any incident in service. Specifically, the practitioner stated that the Veteran was seen in November of 1989 to address the after effects of the parachute hard landing. He stated that nothing was mentioned whatsoever about his cervical spine in these records. Additionally, he stated that x-rays of the Veteran's spine in 1998 were relatively normal and that a 1997 MRI of the cervical spine was normal. The practitioner stated that there were no reports of neck symptoms in any subsequent periods of active duty and that neck pain was not mentioned until the spring of 2010. The Board notes that May 2014 medical practitioner failed to address the 1998 VA examination containing the Veteran's reports of cervical spine pain, the April 1990 Statement of Medical Examination and Duty Status and diagnosis of a chronic upper back injury, and the June 1990 line of duty finding that the January 1989 chronic upper back injury occurred in the line of duty through no fault of the Veteran. As such, the Board finds the May 2014 medical opinion inadequate for adjudicatory purposes. The Board finds that the most competent, probative evidence of record demonstrates that it is at least as likely as not that the Veteran's cervical spine disability is related to his active duty service. Service connection for a cervical spine disability is warranted. II. Rating Reduction - Thoracolumbar Spine The Veteran filed a claim for an increased rating for a lumbar spine disability in November 2010. He was provided VA examinations in March 2011 and January 2013. The RO determined that the Veteran's lumbar spine disability had improved because his combined range of motion of the lumbar spine was greater than 120 degrees but not greater than 235 degrees and forward flexion of the lumbar spine was greater than 60 degrees at the March 2011 examination, and because his combined range of motion of the lumbar spine was greater than 120 degrees but not greater than 235 degrees and forward flexion of the lumbar spine was greater than 60 degrees but not greater than 85 degrees at the January 2013 VA examination. The RO reduced the disability rating from 20 percent to 10 percent, effective January 25, 3013. When a reduction in the rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, specific notice provisions apply. 38 C.F.R. § 3.105(e). In this case, the combined disability rating remained at 40 percent; and therefore, the special notice provisions need not be addressed. Other provisions regarding reductions include 38 C.F.R. § 3.344(a) and 38 C.F.R. § 3.344(b), which provide greater protection to recipients of disability ratings that have continued for five years or more. 38 C.F.R. § 3.344(c). Prior to reducing a long term disability rating, the RO must find: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly shows a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a), (b); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). In this case, the Veteran's 20 percent disability rating for a lumbar spine disability was in effect from May 22, 2007 until January 25, 2013, a period of more than five years. Therefore, the provisions of 38 C.F.R. § 3.44(a) and 38 C.F.R. § 3.344(b) are applicable. 38 C.F.R. § 3.344(c). Upon review of the evidence of record, the Board finds that any perceived improvement in the disability did not actually reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Indeed, although the Veteran was able to forward flex to 80 degrees at the March 2011 VA examination, after repetitive motion testing at the examination, the Veteran's ability to forward flex fell to 60 degrees. Limitation of flexion to 60 degrees still warrants a rating of at least 20 percent, notwithstanding any other factors, under the General Rating Formula for Diseases and Injuries of the Spine. At the Veteran's January 2013 VA examination, range of motion testing showed that the Veteran's ability to forward flex was limited to 65 degrees, to include after repetitive use. Although forward flexion of 65 degrees in and of itself would warrant the assignment of a 10 percent rating under the General Rating Formula, in assessing this 5-degree increase in range of motion, the RO did not adequately discuss whether fatigability or weakness or other impairment during flare-ups would warrant a higher rating. Without commenting on whether a rating higher than 20 percent should be awarded, the Board at the very least finds that discussions of impairment based on flare-ups outlined during the January 2013 VA examination (to include an inability to stand up for up to 15 minutes during a flare) demonstrate that even if the Veteran had regained 5 degrees of forward flexion, material improvement that would be maintained under the conditions of ordinary life is not shown by this examination. Notably, the Veteran submitted a private examination report dated within one year, in August 2013, that reflects limitation of flexion back to 60 degrees again. Since the rating decision that accomplished the reduction of the 20 percent rating for the Veteran's service-connected lumbar spine disability did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy in this case is a restoration of the 20 percent evaluation, effective on the date of the reduction. The Board finds that the Veteran's 20 percent rating for a lumbar spine disability was improperly reduced, and that the 20 percent evaluation for the Veteran's lumbar spine disability should be restored effective January 25, 2013. In doing so, the Board is leaving open the question as to whether a rating higher than 20 percent may be assigned. Indeed, such is the question at issue in the Veteran's increased rating claim discussed in the REMAND section below. III. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating period on appeal of a denial of an increased rating may be one year prior to the date of receipt of the increased rating claim, provided that the evidence reflects a worsening of the disability during that one year time period. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); see 38 C.F.R. §§ 4.1, 4.2, 3.400(o)(2). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases such as this, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating" may be warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). A. Acquired Psychiatric Disability Acquired psychiatric disabilities are evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, a 50 percent 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 understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. A 100 percent 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. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the "'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). It should be noted that prior to August 4, 2014, VA's Rating Schedule that addresses service connected psychiatric disabilities was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. Like this case, diagnoses many times included an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score (explained in more detail below). The DSM was recently updated with a 5th Edition (DSM-5), and VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 70 Fed. Reg. 45093 ((Aug. 4, 2014). This updated medical text recommends that GAF scores be dropped due to their "conceptual lack of clarity." See DSM-5, at 16. However, since the Veteran's acquired psychiatric claim was originally certified to the Board prior to the adoption of the DSM-5, the DMS-IV criteria will be utilized in the analysis set forth below. With regard to GAF scores, the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). Pertinent to this case, GAF scores ranging from 61 to 70 indicate that a veteran has some mild psychiatric symptoms (e.g., depressed mood and mild insomnia) or experiences some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household); however, the veteran is found to generally be functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co-workers). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Following a review of the evidence of record, the Board finds that a 70 percent rating is warranted from November 16, 2010, the date the Veteran filed his increased rating claim. During VA mental health examinations in March 2006 and October 2007, the Veteran was assigned GAF scores of 60 and 55. The March 2006 examiner observed pressured and tangential speech, depressive symptoms with irritability, periods of lethargy, evidence of social withdrawal, and reduction in hygiene and grooming. The October 2007 examiner noted additional social withdrawal, as well as difficulty modulating depressed mood. In November 2010, the Veteran filed his claim for increase, claiming worsened symptomatology. In April 2011, the Veteran underwent a VA mental health examination. The Veteran reported that his back pain resulted in not being able to work. He stated that he began getting depressed as a result of not being able to work. The Veteran reported that he was divorced and had not been on a date in four and a half years, He stated that he found it difficult to talk about his circumstances and had not worked in four years. Previous employments lasted one to two months due to his back pain and acquired psychiatric disability. He reported that he had trouble sleeping due to back pain and radiculopathy. The Veteran reported that he had a relationship with his mother and brother but did not have a relationship with his father or sister. He described himself as a "loner" and reported that he no longer participated in social and physical activities that he once enjoyed, including rock climbing and backpacking. He also stated that when his back pain increased he became "testie" with others. The examiner stated that the Veteran's symptoms were severe and were constant, continuous and ongoing. The Veteran was diagnosed with adjustment disorder with depressed mood. The examiner assessed a GAF score of 48 and stated that in the year prior to examination, the Veteran had social function changes, such as not participating in sports and not socializing. Upon examination, the examiner found the Veteran to be a reliable historian. His affect and mood showed findings of irritability. His speech was rapid, somewhat clipped, and the examiner concluded that the Veteran sounded irritated or annoyed. Appearance, hygiene, and behavior were appropriate. Panic attacks, suicidal ideation, and homicidal ideation were absent. The examiner opined that the Veteran was unable to establish or maintain effective work/school and social relationships because he was afraid to tell others of his situation. Additionally, the examiner opined that, "mentally, he intermittently is unable to perform activities of daily living." In August 2014, the Veteran underwent a private medical examination for his acquired psychiatric disorder. He reported that he was married and divorced twice and described himself as a "loner." He stated that since the onset of his mental health disability, he had withdrawn socially. He reported that he had no contact with his siblings and had no friends. He also reported that he did not date or socialize with others due to his inability to get along with others. Upon examination, the Veteran was diagnosed with severe persistent depressive disorder and pain disorder and assessed a GAF score of 45. His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain relationships, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The examiner opined that the patient's reports and psychiatric evaluations showed that his severe psychiatric symptoms continued to worsen. She stated that the Veteran's back and knee pain continued to exacerbate his mental health symptoms and increase his irritability, impair his concentration and memory, his motivation and mood, and intermittently interfered with his ability to perform activities of daily living. She stated that his pain also contributed to his social withdrawal as he was irritable, depressed, and unable to relate to others not similarly situated. While the Veteran reported that at one time he did have a few friends, he had lost contact with them as he did not leave his house due to pain. During his June 2017 hearing, the Veteran reported that the only people in his life were his parents, and implied that his only friends were dogs. He stated that he didn't get out of his house and had groceries delivered to his home. He stated that he drove less than 1,000 miles per year. He also reported that he had problems getting along with people, in part, due to his sleep issues. He stated that he could not sleep without pain medication and that he refused to take "high-powered" medications. He stated that this sleep deprivation made life extremely difficult and difficult to deal with people. He stated that he had very, very little interaction with others. He reported that he had zero friends. He also reported that when he was last employed, the combination of back pain and depression made it extremely difficult to interact and get along with others. He stated that he was unable to "see" this difficulty with interaction but that his family pointed out that he was too abrupt or mean to people, as he was working for his family business at the time. He also stated that he was sent home from work because of his behavior, even from his own family business. He stated that he would also remove himself from work as he knew he was being a disrupting influence. Based upon the totality of the evidence, the Board affords the Veteran the benefit of the doubt and finds that his overall disability picture more nearly approximates the criteria for a 70 percent disability rating based upon his severe persistent depressive disorder and pain disorder which resulted in serious impairment in social or occupational functioning throughout the entire appellate period. This award represents a full grant of the benefit sought on appeal. Indeed, the Veteran and his attorney specifically requested that a 70 percent rating be assigned, effective November 16, 2010 both at the June 2017 hearing before the undersigned, and in a June 6, 2017 brief. A claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). Accordingly, given the Veteran's and his attorney's limitation of the scope of this issue on appeal, the award of an increased rating to 70 percent effective November 16, 2010 represents a full allowance. B. Bilateral Knees The Veteran's service-connected bilateral knee strains are currently rated individually, both noncompensable under DC 5260 for limitation of flexion. 38 C.F.R. § 4.71a, DC 5260. As above, the Veteran and his attorney have specifically requested that both knee ratings be increased from zero percent to 10 percent, effective November 16, 2010, based on consideration of painful motion under the provisions of 38 C.F.R. § 4.59. Indeed, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Throughout the appeal period, although objective test results reveal noncompensable limitation of motion for both knees at each knee examination, the Veteran has competently and credibly reported the presence of painful knees. At a March 2011 VA examination, the Veteran complained of sharp, frequent knee pain when doing things such as pushing a lawn mower and going up stairs. He reported pain behind the patella of both knees. He also reported that his right knee was worse than his left knee and that right knee pain sometimes caused him to stop activity. In August 2013, the Veteran underwent a private medical examination, and was diagnosed with bilateral knee strain, bilateral knee osteoarthritis, and bilateral patellofemoral pain syndrome. The Veteran reported painful flare-ups of his knees that limited prolonged walking, standing, and maneuvering up and down stairs. The presence of painful motion has been observed and discussed by each examiner, and the Board finds no reason to call into question the Veteran's testimony as to experiencing painful motion. Accordingly, the Board finds that separate 10 percent ratings for the right and left knee are granted, effective November 16, 2010, under the provisions of 38 C.F.R. § 4.59. As the Veteran and his attorney have specifically requested a 10 percent rating for both knees under this provision, these awards represent a full grant of the benefit sought on appeal. ORDER Service connection for a cervical spine disability is granted. The reduction in disability rating from 20 percent to 10 percent for a lumbar spine disability was improper, and the 20 percent rating is restored as of January 25, 2013. From November 16, 2010, a 70 percent disability rating, but no higher, for the Veteran's psychiatric disability, is granted. From November 16, 2010, a 10 percent disability rating, but no higher, for the Veteran's right knee strain, is granted. From November 16, 2010, a 10 percent disability rating, but no higher, for the Veteran's left knee strain, is granted. REMAND The Veteran seeks an increased rating for his thoracolumbar spine disability, as well as his associated left lower extremity neurological disabilities. The Veteran's spine disability was last examined by VA more than five years ago in January 2013. Since that time, the Veteran has presented testimony suggestive of worsening symptoms of both his back disability, and associated left lower extremity radiculopathy. While new VA examinations are not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). So it is in this case. On remand, the Veteran should be scheduled for an updated VA spine examination to assess the severity of his service-connected thoracolumbar spine disability and associated radiculopathy. The Veteran also asserts that a TDIU should be awarded, effective November 16, 2010. With the Board's award of an increased rating to 70 percent for the Veteran's service-connected psychiatric disability above, effective November 16, 2010, the Veteran now meets the schedular criteria for a TDIU under the provisions of 38 C.F.R. § 4.16(a) for the entirety of the period under review. The Board believes that before an adjudication on the merits can be reached however, the Veteran should be asked to provide a detailed history of his work experience and training by submitting a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Upon review of the Veteran's reported history, the AOJ should adjudicate the Veteran's claim in the first instance, following implementation of the allowances outlined in the Order above. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to provide VA with a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), or a comparable statement, outlining his prior work history and training experience. 2. Schedule the Veteran for a VA spine examination to assess the nature and severity of his thoracolumbar spine disability and associated radiculopathy. A copy of the claims file should be sent to, and reviewed by the VA examiner. Range of motion testing should be performed. The Veteran should be tested for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. If such tests cannot be performed, the examiner should explain why that is the case. Further, the examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time. If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should also review the Veteran's medical history and discuss the Veteran's reported history of incapacitating episodes. The examiner should indicate whether the Veteran has been prescribed bed rest by his physicians. 3. After completing the above, and any other development as may be deemed necessary, readjudicate the issues on appeal, to include entitlement to a TDIU, effective November 16, 2010. If the benefits sought remains denied, in whole or in part, the Veteran and his attorney should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs