Citation Nr: 1815010 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 06-11 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder prior to November 10, 2016, and entitlement to a rating in excess of 70 percent thereafter. 2. Entitlement to an initial compensable rating for anterior cruciate ligament (ACL) tear with patellofemoral, left knee prior to November 10, 2016, and entitlement to a rating in excess of 10 percent thereafter. 3. Entitlement to an initial compensable rating for patellofemoral pain syndrome, right knee prior to November 10, 2016, and entitlement to a rating in excess of 10 percent thereafter. 4. Entitlement to an initial compensable rating for degenerative arthritis of the spine prior to November 10, 2016, and entitlement to a rating in excess of 10 percent thereafter. 5. Entitlement to a compensable rating for hallux valgus with bunion formation, left great toe. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2004 and November 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina and New York, New York. Jurisdiction of the claims file is currently with the RO in Newark, New Jersey. In October 2015, the Veteran failed to report for his requested video conference hearing before the Board. The Veteran's hearing request is deemed withdrawn because he failed to report for the scheduled hearing, has not presented good cause for having failed to report, and no request to reschedule the hearing has been received. See 38 C.F.R. §§ 20.703, 20.704 (2017). This case was originally before the Board in May 2016, when the Veteran's claims were remanded for further development. An August 2016 supplemental statement of the case was issued, addressing all issues except for his TDIU claim, and the case is once again before the Board. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD with major depressive disorder resulted in occupational and social deficiencies in most areas. 2. At no point during the period on appeal was the Veteran's left knee flexion limited to 45 degrees or less or his left knee extension limited to 10 degrees or more due to his service-connected ACL tear with patellofemoral, left knee; however, the service-connected left knee condition was manifested by pain on movement. 3. At no point during the period on appeal was the Veteran's right knee flexion limited to 45 degrees or less or his right knee extension limited to 10 degrees or more due to his service-connected patellofemoral pain syndrome, right knee; however, the service-connected right knee condition was manifested by pain on movement. 4. Prior to November 10, 2016, the Veteran's lumbar spine disability was manifested by localized tenderness; at no point during the appeal period did the Veteran have forward flexion of the thoracolumbar spine that was greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine that was not greater than 120 degrees, or muscle spasms or guarding that were severe enough to result in an abnormal gait or abnormal spinal contour. 5. The service-connected left great toe disability is productive of mild to moderate symptoms. 6. The Veteran has not been diagnosed with a sleep disability. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a rating of 70 percent rating, but no higher, for PTSD with major depressive disorder have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for an evaluation of 10 percent, and no higher, for an ACL tear with patellofemoral, left knee, have been met for the period prior to November 10, 2016. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, DC 5260 (2017). 3. The criteria for an evaluation in excess of 10 percent have not been met for an ACL tear with patellofemoral, left knee, for the period beginning November 10, 2016. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, DC 5260 (2017). 4. The criteria for an evaluation of 10 percent, and no higher, for patellofemoral pain syndrome, right knee, have been met for the period prior to November 10, 2016. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, DC 5260 (2017). 5. The criteria for an evaluation in excess of 10 percent have not been met for patellofemoral pain syndrome, right knee, for the period beginning November 10, 2016. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, DC 5260 (2017). 6. The criteria for an initial compensable rating of 10 percent, and no higher, for degenerative arthritis of the spine have been met for the period prior to November 10, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§4.7, 4.71a, DCs 5242-5237 (2017). 7. The criteria for an evaluation in excess of 10 percent have not been met for degenerative arthritis of the spine, for the period beginning November 10, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§4.7, 4.71a, DCs 5242-5237 (2017). 8. The criteria for a compensable rating for hallux valgus with bunion formation, left great toe are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5280 (2017). 9. The Veteran does not have a sleep disability that is the result of a disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has referenced no such records, and all pertinent records have been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, and VA examination reports. Next, the Veteran was afforded VA examinations for his PTSD, knees, spine and foot in July 2004 and November 2016. An examination for his sleep apnea was provided in November 2016. The VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. As such, the Board finds that the VA examinations are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the Veteran's bilateral knees, spine and foot disabilities, the Board has also considered the United States Court of Appeals for Veterans Claims' (Court's) recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016), addressing the proper interpretation of the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." In this regard, the Court concluded that VA examinations should include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Board finds the musculoskeletal examinations of record are adequate for rating purposes and that higher disability ratings are not warranted based on limitation of motion even when considering the functional effects of pain, to include during flare-ups and after repetitive use. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner. The reports do not suggest that the findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran's lay statements. Simply put, as more fully discussed below, after taking into account the medical findings and the lay statements, the evidence does not suggest that motion is limited to the requisite degree for a higher rating at any point. The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. PTSD with Major Depressive Disorder In the present case, entitlement to service connection for PTSD was granted in a November 2006 rating decision. The RO assigned an initial 30 percent rating, effective September 28, 2005. Then, by an August 2017 rating decision, the 30 percent rating was increased to 70 percent, effective November 10, 2016. The Veteran's disability was recharacterized as PTSD with major depressive disorder. For all periods on appeal, the Veteran's PTSD with major depressive disorder has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Based on a review of the record, the Board finds that a 70 percent rating for his PTSD with major depressive disorder is warranted throughout the entire appeal. Under Diagnostic Code 9411, a 50 percent rating is warranted when there is occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Although certain symptoms must be present in order to establish the diagnosis of PTSD, it is not the symptoms but their effects that determines the level of impairment. Id. The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130 (2017). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, during the pendency of this claim, effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV. It was recommended that the GAF be dropped from DSM-5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. However, as the current claim was received prior to August 4, 2014, the GAF scores will be considered in accordance with DSM-IV to the extent GAF scores are offered. GAF scores included in the record are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Id. A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41-50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A review of the evidence reflects that a rating of 70 percent is warranted throughout the appeal period. The evidence prior to November 10, 2016 (the date of his increased 70 percent rating) includes numerous VA treatment records with GAF scores of 40 and 50, indicative of serious symptomatology, as early as 2005. Additionally, VA treatment records in October 2007 noted mood swings, anger and irritability, and long-lasting periods of depression. At an October 2006 VA examination the Veteran reported frequent panic attacks and stated that he cries frequently. The Veteran reported being very angry and that he had gotten involved in many road rage incidents since he had been home from Iraq. The Veteran reported that he was much more isolated. The VA examiner noted that the Veteran was experiencing severe symptoms of PTSD related to his combat experience. A mental status examination at that time revealed no impairment of thought process or communication. The Veteran did report getting paranoid, particularly when around Arab people. Although he denied current suicidal thoughts, he did admit having homicidal thoughts, but denied any current plans. He reported having difficulty maintaining minimal personal hygiene and other basic activities of daily living, particularly if he has a break in his schedule at work or in school. Then he reported that he just shuts down and becomes very depressed and stays in bed. He reported being hypervigilant. His speech was within normal limits. His mood was depressed. Frequent panic attacks were noted. A GAF score of 55 was assigned. A review of the extensive evidence reflects that the Veteran's PTSD with major depressive disorder was more consistent with a 70 percent disability rating, not a 30 percent disability rating, prior to November 10, 2016. Although some VA treatment records appear to reflect milder PTSD symptomatology, the voluminous treatment records are, overall, more consistent with a 70 percent disability rating. Based on these findings, the Board finds that an initial 70 percent rating is warranted, prior to November 10, 2016. Nevertheless, the Board finds that a rating in excess of 70 percent is not warranted for any period during the pendency of the claim as the Veteran's symptomatology does not manifest as total occupational and social impairment, due to such symptoms as (for example only): 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. While the Veteran has severe difficulties with social functioning outside of interaction with family and would have extreme difficulty interacting with employers, his symptoms do not rise to the severity necessary for a total rating. The Veteran's reported social functioning has been fairly consistent throughout the period on appeal, with social isolation and some interaction. Thus, while limited, he is still able to continue relationships with some people. Although he experienced unemployment during the appeal period, a rating of 100 percent is only warranted for both total social and total occupational impairment due to his PTSD. The Board concludes the criteria for a 100 percent rating for PTSD with major depressive disorder have not been met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9411. His own reports at various evaluations regarding how his PTSD impacts him, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating have not been met in this case. In summary, while the Veteran is significantly socially limited by his service-connected PTSD, the evidence during the period on appeal fails to show that this impairment is "total" so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran's PTSD with major depressive disorder more nearly approximates the rating criteria for 70 percent rating during the entire period on appeal. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects that the Veteran's symptomatology more closely approximates that contemplated by a 70 percent evaluation. Therefore, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Anterior Cruciate Ligament Tear with Patellofemoral, Left Knee and Patellofemoral Pain Syndrome, Right Knee The Veteran claims entitlement to a compensable evaluation prior to November 10, 2016, and an evaluation in excess of 10 percent after November 10, 2016, for ACL tear with patellofemoral, left knee. He additionally claims entitlement to a compensable evaluation prior to November 10, 2016, and an evaluation in excess of 10 percent after November 10, 2016, for patellofemoral pain syndrome, right knee. For each knee, he is currently evaluated as 0 percent disabled prior to November 10, 2016 and 10 percent disabled thereafter, based upon limitation of flexion, pursuant to Diagnostic Code (DC) 5260. See 38 C.F.R. § 4.71a, DC 5260. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, which concerns limitation of flexion of the leg, a noncompensable (zero percent) evaluation is assigned for flexion limited to 60 degrees; a 10 percent evaluation is assigned for flexion limited to 45 degrees; a 20 percent evaluation is assigned for flexion limited to 30 degrees; and a 30 percent evaluation is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, which concerns limitation of extension of the leg, a noncompensable evaluation is assigned for extension limited to 5 degrees; a 10 percent evaluation is assigned for extension limited to 10 degrees; a 20 percent evaluation is assigned for extension limited to 15 degrees; a 30 percent evaluation is assigned for extension limited to 20 degrees; a 40 percent evaluation is assigned for extension limited to 30 degrees; and a 50 percent evaluation is assigned for extension limited to 45 degrees. In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Finally, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Veteran was afforded a VA examination for his knees in July 2004. Both knees were noted to be normal in outline and symmetric in form and function. There was no heat, redness or tenderness noted. No effusion was detected. Muscle atrophy and sensory perception were within normal limits. The Veteran's deep tendon reflexes were within normal limits. Drawer and McMurray testing was negative. The range of motion was full without restriction or pain. No evidence of recurrent subluxation or locking pain were noted. Range of motion was to 140 degrees flexion with extension to 0 degrees. It was noted that pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the range of motion. Treatment records throughout the period on appeal reflect complaints of pain by the Veteran. The Board notes that the period on appeal spans from 2004 through the present. The Veteran was afforded another VA examination in November 2016. The Veteran was diagnosed with a left knee anterior cruciate ligament tear. It was noted that he had undergone left ACL tear reconstruction in 2007. He was also diagnosed with patellofemoral pain syndrome of both knees. Range of motion testing in the left knee reflected flexion to 130 degrees and extension to 0 degrees. Range of motion testing in the right knee reflected flexion to 140 degrees and extension to 0 degrees. Pain was noted on examination but did not result in or cause functional loss. There was no evidence of pain with weight bearing. Additionally it was noted that there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. Muscle strength testing was 5/5 and there was no muscle atrophy. No ankylosis was noted. Joint stability testing revealed no recurrent subluxation or lateral instability. There was no history of recurrent effusion noted. No meniscus condition was noted. An ACL tear of the left knee in 2007 was noted. All evidence considered, the Board finds that the Veteran has suffered from some painful motion of his left and right knees throughout the period on appeal. His complaints of such pain are relatively consistent throughout the period on appeal. The currently assigned 10 percent evaluations, for each knee should thus be assigned for the period prior to November 10, 2016. To that extent, the appeal is granted. However, even taking into account the DeLuca factors, there is no objective evidence of flexion limited to 30 degrees or less, any knee instability, or any other left or right knee-related symptoms at any time during the period on appeal that would give rise to an evaluation of more than 10 percent under DC 5260 at any time during this appeal. There is also no evidence of ankylosis (DC 5256), dislocated semilunar cartilage (DC 5258), extension limited to 10 degrees (DC 5261), or impairment of the tibia and fibula (DC 5262). In this case, the Board finds no basis for separate evaluations for extension and flexion of either the left or right knees, given the range of motion findings described. The Board also finds no basis for separate evaluations for instability and arthritis. Although the Veteran has complained of instability, his VA examinations have not shown instability objectively, and the Board is thus unable to conclude that there is instability that is slight in degree to warrant a separate 10 percent evaluation under DC 5257. See 38 C.F.R. § 4.31. In conclusion, the Board finds that the currently assigned 10 percent evaluations for each knee should be assigned for the period prior to November 10, 2016. To that extent, the appeal is granted. However, a rating higher than 10 percent is not warranted for either knee at any point during the period on appeal. Degenerative Arthritis of the Spine The Veteran claims entitlement to an initial compensable rating for degenerative arthritis of the spine prior to November 10, 2016, and entitlement to a rating in excess of 10 percent thereafter. At a July 2004 examination the Veteran complained of a history of low back pain. An examination at that time revealed normal posture and gait. Range of motion testing revealed flexion to 95 degrees, extension to 35 degrees, right and left lateral flexion to 40 degrees each, and right and left rotation to 35 degrees each. It was noted that pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the range of motion. An X-ray at the time revealed transitional lumbosacral segment and minimal degenerative disc space narrowing L4-5. The Veteran underwent an additional VA examination in November 2016. The Veteran reported low back pain and aching. He stated that with standing, pain shoots down his right hip, but never past his mid-thigh. Range of motion testing reflected flexion to 80 degrees, extension 0 to 20 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each. Pain was noted on examination on rest/non-movement. There was no evidence of pain with weight bearing. The VA examiner noted no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. It was noted that the Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The VA examiner indicated that there was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing revealed normal findings. There was no muscle atrophy observed. Reflex, sensory, and straight leg testing were all normal. The VA examiner noted no radicular pain or any other signs or symptoms due to radiculopathy. No ankylosis was observed. The VA examiner indicated that there were no other neurologic abnormalities and that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. The Board finds, first, that the Veteran is entitled to a rating of 10 percent, prior to November 10, 2016, for his lumbar spine disability. In this regard, the Board notes that in his 2004 examination, the Veteran reported pain (localized tenderness) not resulting in abnormal gait or abnormal spinal contour. Therefore, the Board finds that an initial rating of 10 percent, prior to November 10, 2016, is warranted. 38 C.F.R. § 4.71a, DCs 5242-5237 (2017). However, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his lumbar spine disability at any point during the period on appeal. In this regard, the Board notes that there is no indication from the record that, at any point during the period on appeal, the Veteran has had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Therefore, the Board finds that a rating in excess of 10 percent, at any point during the period on appeal, is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237 (2017). Consideration has been given to assigning a higher rating based on incapacitating episodes. However, the record reflects that the Veteran has not been diagnosed with IVDS and that no bed rest was prescribed for the Veteran at any point during the period on appeal. Therefore, a higher rating based on incapacitating episodes is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Compensable Rating: Hallux Valgus with Bunion Formation, Left Great Toe The Veteran's left foot hallux valgus with bunion formation has been evaluated as noncompensable under DC 5280. DC 5280 contemplates unilateral hallux valgus and assigns a compensable, 10 percent, rating for severe unilateral hallux valgus, if equivalent to amputation of great toe or unilateral hallux valgus that has been operated on with resection of metatarsal head. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The Veteran underwent a VA examination in July 2004, just prior to separation from service. At that time the VA examiner noted that the left foot was normal in outline and symmetric in form and function with the right. No residual injuries were observed on the first metatarsal where the impact occurred by history. The VA examiner noted no heat, redness or tenderness, lack of stability or endurance. There were no callosus observed to indicate unusual pressure points. No valgus deviation of the first toes was noted. Movement was not compromised and arches were present. There was no sensory or vascular disturbance identified. There was good weightbearing alignment of the Achilles tendon observed. The Veteran was diagnosed with mild hallux valgus and minimal bunion formation first MP joint left foot, by X-ray. The Veteran's foot was again examined in November 2016. The Veteran was diagnosed with hallux valgus with bunion of the left foot. Degenerative arthritis was noted. The VA examiner noted that the Veteran had injured his left foot by metal object and was told there was no fracture. The Veteran reported that it got swollen and painful, but was not as painful as before. The VA examiner noted a bony prominence, dorsum head 1st metatarsal left foot, with no pain upon palpation or range of motion. The Veteran did not report any pain. Additionally, the Veteran reported no flare-ups that impacted the function of the foot. The Veteran reported no functional loss or functional impairment of the foot. The VA examiner noted that the Veteran had not had surgery for hallux valgus. The VA examiner noted that there was no functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. An X-ray reflected mild hallux valgus with prominent soft tissue and bony bunion suspected medially and mild-to-moderate multilevel degenerative osteoarthritic changes in the left ankle and foot. The examiner indicated that the Veteran's left foot disability did not impact his ability to perform occupational tasks. Upon review of the record, the Board finds that throughout the period on appeal, the Veteran's left foot hallux valgus with bunion formation has been productive of mild or, at most, moderate symptoms. He had not had any surgery for his hallux valgus, and there was not functional impairment of the left foot such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. These manifestations are adequately contemplated by the assigned non-compensable rating. Further, the Veteran has not been shown to have Morton's neuroma and metatarsalgia, hammer toe, hallux rigidus, pes cavus (claw foot), malunion or nonunion of tarsal or metatarsal bones, any other foot injury or weak foot; therefore, a compensable rating is not warranted pursuant to any other diagnostic criteria contemplating foot disabilities. Other Considerations The Veteran also submitted written statements, discussing the severity of his service-connected PTSD, bilateral knees, spine, and foot. In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Credibility and weight are a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report symptoms of his feelings, knee pain, back pain, and toe issues because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his PTSD with major depressive disorder, bilateral knee disability, spine disability or left foot disability when applied to appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's PTSD with major depressive disorder, bilateral knee disability, spine disability or left foot disability-has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports directly address the criteria under which his disabilities are rated. III. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §1110 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden / Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Service treatment records have been reviewed and do not reflect a sleep disability in service. The Veteran was afforded a November 2016 VA examination to assess his claimed sleep disability. The Veteran reported that he had a history of excessive daytime sleepiness and possible loud snoring, but no witnessed apneas. He reported that he was not on CPAP treatment and that he had been diagnosed with borderline obstructive sleep apnea. The VA examiner noted no continuous medication was required for control of a sleep disorder. The VA examiner noted that the Veteran did not require the use of a breathing assistance device or continuous positive airway pressure (CPAP) machine. A sleep study was performed in May 2007. The VA examiner noted that there was no evidence of obstructive sleep apnea in the sleep study report and his diagnosis was primary snoring. While the Board has considered the Veteran's complaints of sleep problems, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. VA needs to identify a "disability," not symptoms of a disability, or treatment. Accordingly, service connection cannot be granted for symptoms of a disability, standing alone. The United States Court of Appeals for Veterans Claims (Veterans Court) has held that the presence of a disability at any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Hence, where the evidence does not support findings of a sleep disability upon which to predicate a grant of service connection, there can be no valid claim for this benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of a diagnosis of a sleep disability, the Board finds that service connection is not warranted. The Board has considered all of the evidence of record, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board finds the preponderance of the evidence is against the claim, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). ORDER A 70 percent rating, but no more, for PTSD with major depressive disorder, throughout the period on appeal, is granted. A 10 percent evaluation prior to November 10, 2016 for anterior cruciate ligament tear with patellofemoral, left knee, is granted. An evaluation in excess of 10 percent as of November 10, 2016 for anterior cruciate ligament tear with patellofemoral, left knee, is denied. A 10 percent evaluation prior to November 10, 2016 for patellofemoral pain syndrome, right knee, is granted. An evaluation in excess of 10 percent as of November 10, 2016 for patellofemoral pain syndrome, right knee, is denied. A 10 percent evaluation prior to November 10, 2016 for degenerative arthritis of the spine is granted. An evaluation in excess of 10 percent as of November 10, 2016 for degenerative arthritis of the spine is denied. A compensable rating for hallux valgus with bunion formation, left great toe is denied. Service connection for sleep apnea is denied. REMAND Further evidentiary development is required prior to review of the remaining issue on appeal. Pursuant to the May 2016 Board remand, the Board noted that the issue of entitlement to a TDIU had been raised. As part of the Remand, the RO was instructed to issue a supplemental statement of the case (SSOC) on all remanded issues that remained denied. The RO did not readjudicate the Veteran's claim for TDIU and promulgate an SSOC on this issue as requested by the Board in its May 2016 Remand. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Because there was not substantial compliance with the remand instructions, the Board is compelled to remand the appeal for appropriate adjudicatory consideration of his claim and the promulgation of an SSOC. Id; see also 38 C.F.R. §§ 19.9, 19.31(c) (2017). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice in compliance with the VCAA that notifies him of what evidence he must show to support a claim for a TDIU. 2. After completing the above, and any other development deemed necessary, readjudicate the issue currently on appeal with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 (2012). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs