judge_norm: U R POWELL

disposition: granted

text:
Citation Nr: 0905000
Decision Date: 02/11/09    Archive Date: 02/13/09

DOCKET NO.  05-08 306	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona

THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30
percent for post-traumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected
disability.

REPRESENTATION

Appellant represented by:	Wade R. Bosley, Attorney at
Law

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

P. Sorisio, Associate Counsel

INTRODUCTION

The Veteran had active service from September 1966 to
September 1968.

These matters come before the Board of Veterans' Appeals (BVA
or Board) from a July 2004 rating decision of the Department
of Veterans Affairs (VA), Regional Office (RO) in
Indianapolis, Indiana.  The Board notes that during the
appeal process the claims folder was transferred to the
Phoenix, Arizona RO.

The Veteran appealed the Board's January 2007 decision that
denied the Veteran's claims of entitlement to an initial
rating in excess of 30 percent for PTSD and entitlement to
TDIU to the United States Court of Appeals for Veterans
Claims (Court).  In April 2008, the Veteran's attorney and a
representative of the VA Office of General Counsel, on behalf
of the Secretary, filed a Joint Motion for Remand (Joint
Motion).  In a May 2008 Order, the Court granted the motion,
vacated the Board's January 2007 decision, and remanded the
matter to the Board for action consistent with the Joint
Motion.

After the case returned to the Board, the Board issued a
letter, dated in July 2008, advising the Veteran and his
representative that they had the option of submitting
additional argument or evidence within 90-days of the date of
that letter.  It is noted that a letter from the Board to the
Veteran's representative, dated in October 2008, extended the
time period in which to respond to the July 2008 Board letter
to January 5, 2009.  The record reflects that the Veteran,
via his representative, has submitted additional evidence,
which was dated in December 2008.  Additionally, the record
contains a waiver of RO consideration of this additional
evidence that was signed by the Veteran and dated in December
2008.  See 38 C.F.R. � 20.1304 (2008).  The Board will accept
this evidence and consider it in this decision.

FINDINGS OF FACT

1.  From August 26, 2003 through September 18, 2007, the
Veteran's PTSD was manifested by symptoms including anger,
anxiety, nightmares, flashbacks, social withdrawal, and
impaired sleep, productive of no more than occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks.

2.  From September 19, 2007, the Veteran's PTSD has been
manifested by symptoms including depression, nightmares,
hyperstartle response, hypervigilence, panic attacks,
intrusive thoughts, impaired impulse control, and inability
to establish and maintain effective social relationships,
productive of no more than occupational and social impairment
with deficiencies in most areas, such as work, family
relations, judgment, and mood.

3.  From August 26, 2003 through September 18, 2007, the
Veteran failed to meet the percentage criteria for a TDIU,
and there was no demonstration by competent clinical evidence
of record that his service-connected disability precluded
employment consistent with the Veteran's education and
occupational experience.

4.  From September 19, 2007, the Veteran's service-connected
disability is of such nature and severity as to prevent his
participation in any regular substantially gainful employment
consistent with his education and occupational experience.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to an initial evaluation in
excess of 30 percent, for the period from August 26, 2003
through September 18, 2007, have not been met.  38 U.S.C.A.
�� 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. �� 3.321, 4.1,
4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411
(2008).

2.  The criteria for entitlement to an initial staged
evaluation of 70 percent, but no more, from September 19,
2007, have been met.  38 U.S.C.A. �� 1155, 5103A, 5107(b)
(West 2002); 38 C.F.R. �� 3.321, 4.1, 4.2, 4.3, 4.7, 4.10,
4.21, 4.126, 4.130, Diagnostic Code 9411 (2008).

3.  The criteria for the award of TDIU benefits, for the
period from August 26, 2003 through September 18, 2007, have
not been met.  38 U.S.C.A. �� 1155, 5107(b) (West 2002); 38
C.F.R. �� 3.321, 3.340, 3.341, 4.16-4.19 (2008).

4.  The criteria for the award of TDIU benefits, from
September 19, 2007, have been met.  38 U.S.C.A. �� 1155,
5107(b) (West 2002); 38 C.F.R. �� 3.321, 3.340, 3.341, 4.16-
4.19 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, and 3.326(a) (2008).

Duty to Notify

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a)
(West 2002 & Supp. 2008); 38 C.F.R. � 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; and (3) that the claimant is
expected to provide.  VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.  Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).

In March 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).  The Court in Dingess/Hartman held that the
VCAA notice requirements of 38 U.S.C. � 5103(a) and 38 C.F.R.
� 3.159(b) apply to all five elements of a "service
connection" claim.  As previously defined by the courts,
those five elements include:  (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability.  Upon
receipt of an application for "service connection,"
therefore, VA is required to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application.  Because the
Court's decision is premised on the five elements of a
service connection claim, it is the consensus opinion within
VA that the analysis employed can be analogously applied to
any matter that involves any one of the five elements of a
"service connection" claim, to include an increased rating
claim.

In this case, the Veteran is appealing the initial rating
assignment as to his PTSD disability.  In this regard,
because the July 2004 rating decision granted the Veteran's
claim of entitlement to service connection, such claim is now
substantiated.  His filing of a notice of disagreement as to
the July 2004 determination does not trigger additional
notice obligations under 38 U.S.C.A. � 5103(a).  73 Fed. Reg.
23,353 - 23,356 (Apr. 30, 2008) (as it amends 38 C.F.R.
� 3.159 to add paragraph (b)(3), effective May 30, 2008).
Rather, the Veteran's appeal as to the initial rating
assignment here triggers VA's statutory duties under
38 U.S.C.A. �� 5104 and 7105, as well as regulatory duties
under 38 C.F.R. � 3.103.  Dingess/Hartman, 19 Vet. App. at
493.  As a consequence, VA is only required to advise the
Veteran of what is necessary to obtain the maximum benefit
allowed by the evidence and the law.  This has been
accomplished here, as will be discussed below.

The February 2005 statement of the case (SOC), under the
heading "Pertinent Laws; Regulations; Rating Schedule
Provisions," set forth the relevant diagnostic code (DC) for
rating the mental disability at issue (38 C.F.R. � 4.130, DC
9411), and included a description of the rating formulas for
all possible schedular ratings under this diagnostic code.  A
May 2005 SOC, under the heading "Pertinent Laws; Regulations;
Rating Schedule Provisions," set forth the relevant law for
establishing entitlement to TDIU benefits.  The appellant was
thus informed of what was needed not only to achieve the
next-higher schedular rating, but also to obtain all
schedular ratings above the initial evaluation that the RO
had assigned as well as a TDIU evaluation.  Therefore, the
Board finds that the appellant has been informed of what was
necessary to achieve a higher rating for the service-
connected disability at issue and a TDIU.

Duty to assist

With regard to the duty to assist, the claims file contains
the Veteran's service treatment records and reports of post-
service private and VA treatment and examination.
Additionally, the claims file contains the Veteran's
statements in support of his claims, to include testimony at
a Travel Board hearing in April 2005.  The Board has
carefully reviewed his statements and testimony and concludes
that there has been no identification of further available
evidence not already of record.  The Board has also perused
the medical records for references to additional treatment
reports not of record, but has found nothing to suggest that
there is any outstanding evidence with respect to the
Veteran's claims.

The Veteran was afforded a VA examination in May 2004.

The Board notes that the RO sent letters in November 2003 and
June 2004 to the Ford Motor Company requesting additional
information, but the record does not show a response to VA's
requests.  Given Ford's failure to respond to the VA letters,
it appears further development would serve no useful purpose
and would result in unnecessarily imposing additional burdens
on VA with no benefit flowing to the Veteran.  See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991).

Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the Veteran in developing the facts
pertinent to his claims.  Essentially, all available evidence
that could substantiate the claims has been obtained.

Legal criteria

Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity.  38 U.S.C.A. � 1155
(West 2002); 38 C.F.R. Part 4 (2008).  When a question arises
as to which of two ratings applies under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating.  38 C.F.R. � 4.7.  Otherwise, the lower rating
will be assigned.  Id.  After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran.  Id. � 4.3.

In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).  Moreover, an appeal from the initial assignment of a
disability rating, such as this case, requires consideration
of the entire time period involved, and contemplates staged
ratings where warranted.  See Fenderson v. West, 12 Vet. App.
119 (1999).

When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, length of remissions, and the veteran's capacity
for adjustment during periods of remission.  38 C.F.R.
� 4.126(a).  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.  Id.  However, when evaluating the
level of disability from a mental disorder, the rating agency
will consider the extent of social impairment, but shall not
assign an evaluation on the basis of social impairment.
38 C.F.R. � 4.126(b).

PTSD is rated by applying the criteria in 38 C.F.R. � 4.130,
Diagnostic Code 9411 (2006).

VA's Schedule for rating mental disorders reads, in pertinent
part, as follows:

Under Diagnostic Code 9411, a 30 percent rating is warranted
when there is occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, recent
events).

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 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; and difficulty
in establishing and maintaining effective work and social
relationships.

In order to achieve a 70 percent rating under Diagnostic Code
9411, the evidence must show occupation and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as suicidal ideation; obsessional rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control;
spatial disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful circumstances;
and occupation and social impairment with deficiencies in
most areas, such as work, school, family relations, judgment,
or mood.

To warrant a 100 percent rating (the maximum schedular
rating), the evidence must demonstrate 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.

38 C.F.R. � 4.130, Diagnostic Code 9411.

Global Assessment of Functioning (GAF)

GAF is 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); see also Richard v. Brown, 9 Vet. App. 266,
267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 32 (4th ed. 1994)) (DSM-IV).

According to DSM-IV, a GAF score of 71 to 80 indicates the
examinee has, if at all, symptoms that are transient or
expectable reactions to psychosocial stressors but no more
than slight impairment in social, occupational or school
functioning.  A GAF score of 61 to 70 indicates the examinee
has some mild symptoms or some difficulty in social,
occupational, or school functioning, but generally functions
pretty well with some meaningful interpersonal relationships.
A GAF score of 51 to 60 indicates the examinee has moderate
symptoms or moderate difficulty in social, occupational, or
school functioning.  A GAF score of 41 to 50 indicates the
examinee has serious symptoms or a serious impairment in
social, occupational, or school functioning.  A GAF score of
31 to 40 reflects some impairment in reality testing or
communication (e.g., speech is at times illogical, obscure,
or irrelevant) or major impairment in several areas, such as
work or school, family relations, judgment, thinking, or mood
(e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up other children, is
defiant at home, and is failing at school).  See also QUICK
REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-47 (1994).

Analysis

I.  PTSD initial rating

The July 2004 rating decision granted service connection for
PTSD and assigned a 30 percent evaluation, effective August
26, 2003.  The Veteran asserts that an initial evaluation in
excess of 30 percent is warranted for his service-connected
PTSD.

From August 26, 2003 through September 18, 2007

The Board finds that the evidence of record does not support
an evaluation in excess of 30 percent for the Veteran's PTSD
prior to September 19, 2007.  The level of occupational and
social impairment due to a psychiatric disorder is the
primary consideration in determining the severity of a
psychiatric disorder for VA purposes and not all the symptoms
listed in the rating criteria must be present in order for a
rating to be warranted.  See Mauerhan v. Principi, 16 Vet.
App. 436 (2002) (finding that the psychiatric symptoms listed
in the rating criteria are not exclusive, but are examples of
typical symptoms for the listed percentage ratings).

After reviewing the evidence of record, the Board finds that
the Veteran's disability picture is appropriately reflected
by the initial 30 percent evaluation for the period from
August 26, 2003 through September 18, 2007 and that a rating
in excess of this amount is not warranted, as discussed
below.

Regarding occupational functioning, the Veteran has stated
that his PTSD has made it difficult for him function at work.
The psychological examination performed in September 2003
noted that the Veteran has had trouble dealing with authority
at his job and that this has caused him employment problems
over the years.  A VA mental health treatment report, dated
in January 2007, reflects that the Veteran was not working
(since 1999) and said that he had retired.  However, the
Board finds that the evidence of record does not demonstrate
that the Veteran's PTSD symptomatology has limited his
employability to the extent that the next-higher 50 percent
evaluation would be appropriate at any time during the rating
period from August 26, 2003 through September 18, 2007.
Indeed, the May 2004 VA examination and private reports
indicate that the Veteran worked at Ford Motor Company for
approximately 30 years before retiring in 1999 after being
discharged from the military in 1968.  Additionally, the
record does not indicate any firings due to his PSTD
symptoms.

The Board acknowledges that the Veteran has some difficulty
in establishing effective social relationships.  For example,
the 2003 private psychological evaluation noted that the
Veteran had been married to the same woman since 1968.
However, they divorced in 1979 for about a year and half and
then remarried.  The Veteran also stated that he was only
close to his wife and that all of his friends are Vietnam
Veterans.  The Veteran, during his April 2005 hearing,
testified that he does not socialize and that he just stays
at home.  (Transcript "Tr." at 9.)  A December 2006 VA
psychiatric history and assessment report reflects that the
Veteran is isolative.  It was also noted in the December 2006
VA record that the Veteran had been married twice.  He
reported a good relationship with his current wife, but
stated that his first marriage ended in divorce secondary to
a change in his personality and behavior.  A VA mental health
treatment report, dated in January 2007, reflects that the
Veteran is homebound and fears going out.  However, the Board
finds that the overall weight of the evidence fails to reveal
social impairment of such severity as to allow for a finding
that his disability picture is more analogous to the next-
higher 50 percent rating under Diagnostic Code 9411.

The competent evidence fails to reveal communication
difficulties.  In fact, upon VA examination in May 2004, the
Veteran's speech was of normal tone and volume.  Although the
Veteran had a constricted affect, he had good eye-contact and
was co-operative during the examination.  A September 2003
private psychological evaluation noted the Veteran as being
co-operative and as having a good rapport with the examiners.
See also December 2006 VA psychiatric history and assessment
(indicating speech of a regular rate and tone); March 2007 VA
mental health (indicating rate, quality, and quantity of
speech were within normal limits).  With regard to weekly or
more frequent panic attacks, neither the May 2004 nor the
September 2003 examination reports noted any complaints of
such attacks.  The Veteran reported feeling anxious and
overwhelmed in claustrophobic situations at the 2004 VA
examination.

Regarding comprehension skills, there is no evidence of any
difficulty in understanding complex commands.  The Veteran
did make some mistakes in performing serial 7s as noted in
the 2003 private examination.  There was no indication of
intellectual deficit upon either VA or private examination.
Upon private examination in 2003, the Veteran reported having
difficulty concentrating.  The December 2006 VA psychiatric
history and assessment report reflects that the Veteran's
thought process was logical, comparisons within normal
limits, and proverbs fair.  With respect to recall, the 2004
VA examiner found the Veteran's short- and long-term memory
were intact.  During the 2003 private examination, the
Veteran was able to remember 3 objects after a short
disruption.  The December 2006 VA record indicates the
Veteran had immediate recall of 3/3, recent events of 3/3 and
was able to remember childhood events.  The 2004 VA examiner
noted that the Veteran's thought process was logical and
sequential and that this judgment and insight were fair.  The
Board acknowledges that a March 2007 psychiatric treatment
record reflects that the Veteran's ability to abstract was
impaired.  However, clinical identification of impaired
abstract thinking is not dispositive of the disability rating
warranted, and must be considered in conjunction with the
full spectrum of psychiatric assessment.  In this regard, the
Board also observes that the March 2007 VA psychiatrist noted
that the Veteran's thought process had normal continuity and
rate and there were no hallucinations or delusions of
persecution, grandiosity, or religiosity.  See also July 2007
VA mental health record (noting goal directed though
processes).

The Board acknowledges the Veteran's complaints and findings
of record indicating his PTSD symptoms of nightmares,
impaired sleep, flashbacks, irritability, anxiousness, and
avoidance of crowds.  Additionally, the Veteran has indicated
difficulty in dealing with authority.  The Board also
acknowledges the Veteran's symptoms of exaggerated startle
response and suspiciousness.  At the April 2005 Travel Board
hearing, the Veteran reported that he will "go off" on
people for no reason.  (Tr. at 10.)  The Veteran's spouse
also testified as to the Veteran's outbursts and heated
arguments with others.  (Id. at 5-6.)  The Board notes that
after VA examination in 2004 the Veteran had an Axis I
diagnosis of depression, not otherwise specified.  The Board
observes that above examination reports indicate no history
of inpatient psychiatric care or hospitalizations.  Further,
there is no history of either suicidal or homicidal ideation.
Rather, the record prior to September 19, 2007 shows that
Veteran has denied suicidal and homicidal ideation.

The Veteran's GAF scores must also be assessed.  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, 242 (1995)
(quotation omitted).  A GAF score is highly probative, as it
relates directly to the Veteran's level of impairment of
social and industrial adaptability, as contemplated by the
rating criteria for mental disorders.  See Massey v. Brown, 7
Vet. App. 204, 207 (1994).

The Board further notes a GAF score of 60 was indicated upon
VA examination conducted in May 2004.  The 2004 VA examiner
opined that the Veteran's PTSD symptoms were moderately
affecting his daily activities as well as his social and
occupational functioning.  The Board finds this GAF score to
be highly probative because it was provided after the VA
examiner reviewed the chart (claims) folder, interviewed the
veteran, and conducted a complete psychological examination.
See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating
that a factor for assessing the probative value of a medical
opinion includes the thoroughness and detail of it).  Other
GAF scores of record include 50 upon VA psychiatric
assessment in December 2006 and a GAF score of 60 recorded at
a July 2007 VA mental health assessment.  The Board finds
that the Veteran's GAF scores, prior to September 19, 2007,
indicate no worse than moderate symptomatology or moderate
difficulty in social and occupation functioning, and are
adequately reflected in the 30 percent evaluation.  38 C.F.R.
� 4.130, Diagnostic Code 9411.  The Board notes that the 2003
private psychological examination noted a GAF score of 35,
and the December 2006 VA record noted a GAF score of 50,
indicating more serious symptoms.  However, the Board finds
that GAF score of 35 is not consistent with the evidence of
record for the period from August 26, 2003 through September
18, 2007.  As described above, a GAF score of from 31 to 40
indicates some impairment in reality testing or communication
or major impairment in several areas, none of which are
demonstrated by the evidence of record for the period from
August 26, 2003 through September 18, 2007.  Furthermore,
there is no indication that the two private examiners
reviewed the Veteran's claims folder as a part of the 2003
examination.  See Black v. Brown, 5 Vet. App. 177, 180 (1993)
(stating that the Board may discount medical opinions that
amount to general conclusions based on history furnished by
the veteran and that are unsupported by the clinical
evidence).  The GAF scores of 35 and 50 are not dispositive
of the disability rating warranted prior to September 19,
2007, as the Board finds that the Veteran's overall
disability picture is for consideration.

In conclusion, the Board finds that the Veteran's 30 percent
disability rating for PTSD for the period from August 26,
2003 through September 18, 2007 is appropriate.  The Board
also has considered whether the Veteran's rating should be
"staged."  The record, however, does not support assigning
different percentage disability ratings prior to September
19, 2007 because, as outlined above, the Veteran's PTSD
disability picture has not been shown by the competent
clinical evidence of record, to be productive of occupational
and social impairment with reduced reliability and
productivity at any time during the period from August 26,
2003 through September 18, 2007, when the record as a whole
is considered for that period.  Fenderson, 12 Vet. App. at
125-26.  As the preponderance of the evidence is against the
claim, the benefit of the doubt rule is not applicable.  See
38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
54-56 (1990).

From September 19, 2007

A VA treatment report, dated September 19, 2007, reflects
that the Veteran has severe active PTSD and is not able to
work because it is extremely hard for him to handle people.
It was also noted that the Veteran has a low tolerance for
the public and conversations, and that poor impulse control
was a problem.  This VA treatment report further indicates
that the Veteran's PTSD is worsening over time.  See also
Private treatment record from Advanced Cardiac Specialist
(ACS), dated September 26, 2007 (noting that the Veteran's
PTSD is severe).

The Board finds that the above evidence warrants an initial
staged rating of 70 percent for PTSD, effective September 19,
2007, the date of the VA treatment report, as that is when it
is factually ascertainable from the evidence of record that
his service-connected disability had worsened.  38 C.F.R.
� 3.400(o).  The Board finds that the VA treatment report
shows that the Veteran's PTSD was productive of moderate-
severe industrial and social impairment, and with resolution
of any doubt in favor of the Veteran, the Board finds the
Veteran's overall PTSD disability picture is more nearly
approximated by a 70 percent rating from the date of the
September 19, 2007 VA treatment report.  38 C.F.R. �� 4.3 and
4.7.

While the Board finds that the evidence from September 19,
2007 demonstrates that a 70 percent rating is warranted, it
does not find that a rating in excess of 70 percent is
warranted from September 19, 2007.  In this regard, the Board
does not find that the evidence demonstrates total
occupational and social impairment.

The Board acknowledges that the evidence shows the Veteran's
PTSD causes severe impairment, especially regarding his
ability to work.  See September 2007 VA treatment report;
September 2007 private treatment report; see also Private
treatment report from ACS, dated October 31, 2007, indicating
that the Veteran has such a severe case of PTSD that he is
not able to work.  The Board also acknowledges that the
Veteran has moderate-severe social impairment.  However, the
Board does not find that the evidence of record from
September 19, 2007 reflects total social impairment.  While
the degree of social impairment is not dispositive of the
rating warranted, it is for consideration.  38 C.F.R.
� 4.126(b).  The record clearly shows that the Veteran does
not like being around people.  Indeed, an April 2008 Vet
Center assessment report reflects that the Veteran displayed
isolative and disassociative behavior due to his general
dislike for people.  Notwithstanding the social impairment
just described, the Board notes that the record demonstrates
that the Veteran trusts his wife as they have been together
for over 40 years.  See VA progress noted, dated in October
2008.  A January 2008 report of a VA individual session notes
that the Veteran seems to demonstrate capabilities to
interact with others with whom he has formed a "trust
bond."  See also April 2008 Vet Center assessment report
(noting that the Veteran has no friends other than his wife
and extremely lacks social skills to interact with others);
December 2008 VA psychiatric assessment report (noting that
the Veteran goes shopping/outside with his spouse and likes
to play with the dog).

The Board also notes that the competent evidence does not
demonstrate gross impairment in thought processes or
communication.  To the contrary, a January 2008 VA mental
health treatment report notes that the Veteran's thought
process was "logical, coherent."  See also April 2008 VA
mental health treatment report (same).  Although the Veteran
has had some paranoia as noted in an April 2008 Vet Center
assessment report, the report of December 2008 VA psychiatric
assessment reflects that the Veteran had a logical thought
process and denied delusion and paranoia.

The Board notes that the record shows some inability to
perform activities of daily living.  The Veteran's spouse
noted in a December 2007 treatment session that the Veteran
does not take care of himself.  The Veteran's spouse also
expressed concerns about the Veteran's daily routines and
reported she has to do most required tasks, to include paying
the bills and reminding him to take his medications.  See
also April 2008 Vet Center assessment report (noting that the
Veteran exhibits mild catatonic behavior, to include sitting
in a chair for most of the day, crying, and scratching his
arms, legs, and head).

The evidence of record also fails to reveal disorientation to
time or place or memory loss for names of close relatives,
own occupation or own name.  Indeed, upon VA mental status
examination in January 2008, the Veteran was oriented to
time, place, and personal information.  The VA psychiatric
record, dated in November 2007, noted that the Veteran's
recent memory was intact and his delayed memory was 2/3.  See
also December 2008 VA mental heath report (noting that the
Veteran was cognitively intact).

The evidence of record further fails to reveal an overall
disability picture reflecting grossly inappropriate behavior
or showing that the Veteran was a persistent danger to
himself or others.  The Veteran has denied suicidal ideation,
most recently a December 2008 VA suicide risk assessment was
negative as the Veteran denied suicidal or homicidal
ideation.  See November 2007 VA psychiatric treatment report
(denying suicidal or homicidal ideation).  While an April
2008 Vet Center assessment report indicates that the Veteran
appears to act out paranoid ideations with anger outburst
directed at strangers within the community, the December 2008
VA psychiatric assessment report reflects that the Veteran's
spouse reported that the Veteran's "anger has been more
control[led] since [he] started [Cymbalta]."   While the
record demonstrates that the Veteran has had some problems
controlling his anger, there is no evidence that he exhibits
persistent danger of hurting himself or others.

The competent clinical evidence also fails to establish
persistent delusions or hallucinations.  Although the April
2008 Vet Center assessment report notes the Veteran seems to
experience paranoia and demonstrates mild catatonic behaviors
(sitting in a chair most of the day), the December 2008 VA
mental health assessment report the Veteran denied psychosis
or mania.

Based on the foregoing, the Board concludes that the
Veteran's disability picture does not most nearly approximate
the next-higher 100 percent rating under Diagnostic Code
9411.  The evidence does indicate serious occupational and
social impairment with deficiencies in most area with such
symptoms as depression, nightmares, intrusive thoughts,
increased arousal, isolation, exaggerated startle response,
irritability, and anger management concerns, which the Board
finds to be consistent with the Veteran's current 70 percent
initial staged rating from September 19, 2007.

As discussed above, the overall weight of the evidence fails
to reveal a disability picture most nearly approximated by
the next-higher 100 percent evaluation for PTSD under
Diagnostic Code 9411.  In so finding, the Board notes that
the Veteran had a GAF score of 45 upon VA psychiatric
assessment in December 2008, VA mental health treatment in
April 2008 and January 2008, and upon VA psychiatric
treatment in November 2007.  A GAF score of 41 to 50
indicates the examinee has serious symptoms or a serious
impairment in social, occupational, or school functioning.
See Quick Reference to the Diagnostic Criteria from DSM-IV,
46-47 (1994).  The Board finds that the above reported GAF
scores are consistent with other clinical evidence of record
and clearly support no more than the currently assigned 70
percent initial staged evaluation from September 19, 2007.

In conclusion, the Board finds that the initial staged
evaluation of 70 percent for PTSD from September 19, 2007
appropriately reflects the Veteran's disability picture from
this date.  The Board has again considered staged ratings,
but it finds for the reasons provided above, to include
consistent GAF scores over the course of a year, that further
staged ratings are not warranted.  Fenderson, 12 Vet. App. at
125-26.  The weight of the available evidence of record
demonstrates that the Veteran's service-connected PTSD has
warranted a 70 percent initial staged rating, but no higher,
from the date of the September 2007 VA treatment report.  As
the preponderance of the evidence is against the claim, the
benefit of the doubt rule is not applicable.  See 38 U.S.C.A.
� 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56
(1990).

Extraschedular consideration

Finally, the evidence does not reflect that the disability at
issue causes marked interference with employment (i.e.,
beyond that already contemplated in the assigned evaluation),
or necessitated any frequent periods of hospitalization, such
that application of the regular schedular standards is
rendered impracticable.  Initially, the Board notes that a
comparison between the level of severity and symptomatology
of the veteran's service-connected disability at issues with
the established criteria found in the rating schedule for
this disability shows that the rating criteria reasonably
describes the veteran's disability level and symptomatology.
The Board further observes that, even if the available
schedular evaluation for the disability is inadequate (which
it manifestly is not), the veteran does not exhibit other
related factors such as those provided by the regulation as
"governing norms."  Indeed, the 2004 VA examination report
does not reflect a history of inpatient psychiatric care or
hospitalizations.  Hence, referral for the assignment of an
extra-schedular evaluation under 38 C.F.R. � 3.321(b)(1) is
not warranted.  See Floyd v. Brown, 9 Vet. App. 88, 95
(1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).

II.  TDIU

Total ratings for compensation purposes may be assigned where
the combined schedular rating for the veteran's service-
connected disability or disabilities is less than 100 percent
when it is found that the service-connected disability or
disabilities are sufficient to render the veteran
unemployable without regard to either his advancing age or
the presence of any nonservice-connected disorders.

Total disability ratings for compensation may be assigned
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of a service-connected 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 service-connected disability to bring the combined
rating to 70 percent or more.  38 C.F.R. � 4.16(a).  To meet
the requirement of "one 60 percent disability" or "one 40
percent disability," the following will be considered as one
disability:  (1) disability of one or both lower extremities,
including the bilateral factor, if applicable; (2)
disabilities resulting from one common etiology; (3)
disabilities affecting a single body system; (4) multiple
injuries incurred in action; and (5) multiple disabilities
incurred as a prisoner of war.  Id.  Substantially gainful
employment is defined as work which is more than marginal and
which permits the individual to earn a living wage.  Moore v.
Derwinski, 1 Vet. App. 356 (1991).

To establish a total disability rating based on individual
unemployability, there must be impairment so severe that it
is impossible for the average person to follow a
substantially gainful occupation.  38 C.F.R. � 3.340.  In
reaching such a determination, the central inquiry is whether
the veteran's service-connected disabilities alone are of
sufficient severity to produce unemployability.  Hatlestad v.
Brown, 5 Vet. App. 524, 529 (1993).

Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation; provided that permanent
total disability shall be taken to exist when the impairment
is reasonably certain to continue throughout the life of the
disabled person.  38 C.F.R. � 4.15.

The question in a total rating case based upon individual
unemployability due to service-connected disability is
whether the veteran is capable of performing the physical and
mental acts required by employment and not whether the
veteran is, in fact, employed.  See Van Hoose v. Brown, 4
Vet. App. 361, 363 (1993).

In a VA Form 21-8940, Veteran's Application For Increased
Compensation Based on Unemployability, dated in August 2003,
the Veteran indicated that he last worked full time on
October 1, 1999, that he had occupational experience as a
factory worker, that he had worked for more than 30 years
with his most recent employer, and that he had completed high
school.

Prior to September 19, 2007

In this case, the Veteran's service-connected PTSD is rated
as 30 percent disabling, prior to September 19, 2007.  There
are no other service-connected disabilities.  Therefore, the
Veteran does not meet the schedular criteria pursuant to 38
C.F.R. � 4.16(a), prior to September 19, 2007.

However, it is the established policy of VA that all veterans
who are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled.  38 C.F.R. � 4.16(b).  Rating
boards should refer to the Director of the Compensation and
Pension Service for extra-schedular consideration all cases
of veterans who are unemployable by reason of service-
connected disabilities but who fail to meet the percentage
requirements set forth in 38 C.F.R. � 4.16(a).  The veteran's
service-connected disabilities, employment history,
educational and vocational attainment, and all other factors
having a bearing on the issue must be addressed.  38 C.F.R. �
4.16(b).

The Board finds that the evidence does not demonstrate that
the Veteran is unemployable due to service-connected
disability at any time during the rating period on appeal
from August 26, 2003 through September 18, 2007.  The Board
acknowledges that a private licensed psychologist, in
September 2003, described the Veteran's PTSD as severe and
noted difficulties with employment in the past.
Significantly, however, as outlined above, the Veteran worked
at Ford Motor Company for approximately 30 years after being
discharged from the military in 1968, before retiring in
1999.  Despite having difficultly dealing with authority at
Ford, the record does not indicate any firings due to his
PSTD symptoms.  See September 2003 private report; VA Form
21-8940, dated in August 2003.  Moreover, following review of
the Veteran's claims folder, and with specific reference to
review of the September 2003 private licensed psychologist's
opinion, the May 2004 VA examiner described the Veteran's
disorder as productive of no more than moderate occupational
impairment.  Prior to September 19, 2007, the evidence
reflects GAF scores that are inconsistent with an inability
to engage in substantially gainful employment.  Indeed, a
July 2007 VA mental health treatment report reflects a GAF
score of 60.  While the lowest GAF score of 35, noted in the
September 2003 private report, may indicate major impairment
in an area such as work, it does not indicate that the
Veteran is precluded from seeking or following a
substantially gainful occupation consistent with his high
school education and occupational experience.

The Veteran's own opinion is of little probative value and is
far less convincing than the competent clinical evidence of
record, as discussed above.  The Board notes that the Veteran
and other persons can attest to factual matters of which they
had first-hand knowledge, e.g., experiencing pain in service
and witnessing events.  See Washington v. Nicholson, 19 Vet.
App. 362, 368 (2005).  However, the Veteran has not been
shown to possess the requisite skills or training necessary
to be capable of making medical conclusions.  Thus, the
Veteran's statements do not constitute competent medical
evidence and lack probative value.  Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992).  The Board notes that there is
no competent medical evidence to the contrary.

Thus, to the extent that his service-connected PTSD
disability causes occupational impairment, the Board finds
that the Veteran is appropriately compensated by the current
30 percent disability evaluation, prior to September 19,
2007.  The Veteran's situation does not present such an
exceptional or unusual disability picture as to warrant
entitlement to a TDIU on an extraschedular basis.

For the reasons stated above, the Board concludes that the
preponderance of the evidence is against the Veteran's claim
for a TDIU for the period from August 26, 2003 through
September 18, 2007 and, as such, the benefit of the doubt
rule is not applicable.  See 38 U.S.C.A. � 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  The claim is
therefore denied.

From September 19, 2007

From September 19, 2007, the Board notes that the Veteran
meets the schedular criteria of 38 C.F.R. � 4.16(a) as his
sole service-connected disability, PTSD, is now rated as 70
percent disabling.

Additionally, the VA treatment report, dated September 19,
2007, reflects that the Veteran has severe active PTSD and is
not able to work because it is extremely hard for him to
handle people.  It was also noted that the Veteran has a low
tolerance for public and conversations and that poor impulse
control was a problem.  This VA treatment report further
indicates that the Veteran's PTSD is worsening over time.
See also Private treatment record from Advanced Cardiac
Specialist (ACS), dated September 26, 2007 (noting that the
Veteran's PTSD is severe); Private report from ACS, dated in
October 2007 (noting that the Veteran's PTSD is not
controlled at this time).  Further, a private treatment
record from ACS, dated in December 2007, reflects that the
Veteran has severe PTSD and is "unable to work."

With resolution of doubt in the Veteran's favor, the Board
finds that a fair reading of the comments of the September
2007 VA physician and the December 2007 private examiner
reveals that the Veteran's service-connected PTSD disability
precludes him from obtaining and maintaining gainful
employment.

The Board notes that marginal employment is not to be
considered substantially gainful employment.  38 C.F.R. �
4.16(a).  The standard, as in this case, is whether a
particular job is realistically within the physical and
mental capabilities of the claimant.  Moore v. Derwinski, 1
Vet. App. 356 (1991).  The Board notes that the Veteran has
received no education beyond high school and worked in a
factory for approximately 30 years.  See VA Form 21-8940,
dated in August 2003.  Further, there is no evidence in the
file indicating that the Veteran is capable of performing
even general employment, and what such employment would
entail.

In conclusion, the Board notes that a review of the record as
a whole (from September 19, 2007) leads to the conclusion
that the Veteran's service-connected PTSD has caused the
Veteran to be unable to secure or follow a substantially
gainful occupation.  While it may be argued that the
competent evidence is in equipoise as to whether the Veteran
is precluded from substantially gainful employment as a
result of his service-connected disability, in such cases,
doubt is resolved in the Veteran's favor.  38 U.S.C.A. �
5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  As such,
the Board finds that the evidence of record supports a grant
of TDIU from September 19, 2007.

ORDER

Entitlement to an initial evaluation in excess of 30 percent
for PTSD, for the period from August 26, 2003 through
September 18, 2007, is denied.

Entitlement to an initial staged evaluation of 70 percent,
but not more, from September 19, 2007, for PTSD is granted,
subject to the applicable law governing the award of monetary
benefits.

Entitlement to TDIU, for the period from August 26, 2003
through September 18, 2007, is denied.

TDIU, from September 19, 2007, is granted, subject to
governing criteria applicable to the payment of monetary
benefits.

____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: ANDREW J MULLEN

disposition: denied

condition: knee

text:
Citation Nr: 0906000
Decision Date: 02/18/09    Archive Date: 02/24/09

DOCKET NO.  05-15 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for
residuals of a medial meniscus tear of the left knee.

2.  Entitlement to an increased evaluation for traumatic
arthritis of the right knee associated with a medial meniscus
tear with limitation of flexion, rated at 20 percent from
September 6, 2000, to June 8, 2005, and at 30 percent from
August 1, 2005, to April 27, 2006, and from June 1, 2006,
forward.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel

INTRODUCTION

The Veteran had active service from September 1964 to August
1966.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) from an August 2004 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO).

FINDINGS OF FACT

1.  Throughout the rating period on appeal, the Veteran's
left knee has been productive of intermittent pain and
occasional giving out.  Lachman's test was negative.  The
cruciate and collateral ligaments were intact.  Flexion was
no worse than 75 degrees, extension to 0 degrees, and there
was slight demonstrated additional functional limitation due
to pain, such as occasional missed work and inability to
stand or walk for long periods of time.

2.  Throughout the rating period on appeal, the Veteran's
right knee has been productive of intermittent pain, with
occasional giving out.  Lachman's test was negative, and the
cruciate and collateral ligaments were intact.  Flexion was
no worse than 95 degrees, extension was to 0 degrees, and
there was occasional missed work and inability to stand or
walk for long periods of time.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to an evaluation in excess
of 20 percent for residuals of a medial meniscus tear of the
left knee have not been met.  38 U.S.C.A. �� 1155, 5103(a),
5103A, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. �� 3.102,
3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260,
5261 (2008).

2.  The criteria for entitlement to an evaluation in excess
of 20 percent from September 6, 2000, to June 8, 2005, and of
30 percent from August 1, 2005, to April 27, 2006, and from
June 1, 2006, forward for traumatic arthritis of the right
knee associated with a medial meniscus tear with limitation
of flexion have not been met.  38 U.S.C.A. �� 1155, 5103(a),
5103A, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. �� 3.102,
3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260,
5261 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating
their claims for VA benefits, as codified in pertinent part
at 38 U.S.C.A. �� 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2008); 38 C.F.R. �� 3.102, 3.159, 3.326(a) (2008).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide, in accordance
with 38 C.F.R. � 3.159(b)(1) (2008).  This notice must be
provided prior to an initial unfavorable decision on a claim
by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In
addition, the decision of the U.S. Court of Appeals for
Veterans Claims, in Dingess v. Nicholson, 19 Vet. App. 473
(2006) requires more extensive notice in claims for
compensation, e.g., as to potential downstream issues such as
disability rating and effective date.

For an increased-compensation claim, 38 U.S.C.A. � 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life.  Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008).  Further, if the diagnostic
code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.

The claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant diagnostic codes, which typically
provide for a range in severity of a particular disability
from noncompensable to as much as 100 percent (depending on
the disability involved), based on the nature of the symptoms
of the condition for which disability compensation is being
sought, their severity and duration, and their impact upon
employment and daily life.  As with proper notice for an
initial disability rating and consistent with the statutory
and regulatory history, the notice must also provide examples
of the types of medical and lay evidence that the claimant
may submit (or ask the Secretary to obtain) that are relevant
to establishing entitlement to increased compensation - e.g.,
competent lay statements describing symptoms, medical and
hospitalization records, medical statements, employer
statements, job application rejections, and any other
evidence showing an increase in the disability or exceptional
circumstances relating to the disability.  Vazquez-Flores, at
43-44.

The U.S. Court of Appeals for the Federal Circuit has held
that, if a claimant can demonstrate error in VCAA notice,
such error should be presumed to be prejudicial.  VA then
bears the burden of rebutting the presumption, by showing
that the essential fairness of the adjudication has not been
affected because, for example, actual knowledge by the
claimant cured the notice defect, a reasonable person would
have understood what was needed, or the benefits sought
cannot be granted as a matter of law.  Sanders v. Nicholson,
487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted
(U.S. June 16, 2008) (No. 07-1209).

In this case, a letter was sent to the Veteran in June 2004,
prior to the initial RO decision which is the subject of this
appeal.  The letter informed him of what evidence was
required to substantiate the claims, and of the Veteran's and
VA's respective duties for obtaining evidence.  It described
what the evidence should show, including how the claimed
disability had worsened.  Although no longer required, the
Veteran was also asked to submit evidence and/or information
in his possession to the RO.  A March 2006 letter described
how VA calculates disability ratings and effective dates.

It is acknowledged that the VCAA letter sent to the Veteran
in June 2004 does not appear to fully satisfy the
requirements of Vasquez-Flores, in that it did not specify
that the evidence should show how the disability affects the
Veteran's employment or daily life.  Moreover, the Veteran
did not receive notice as required by the Court's ruling in
Dingess until after the initial adjudication of the claim.
Therefore, to this extent, the duty to notify was not
satisfied prior to the initial unfavorable decision on the
claim by the RO.  Under such circumstances, VA's duty to
notify may not be satisfied solely by various post-decisional
communications.  See Mayfield v. Nicholson, supra, 444 F.3d
at 1333.

Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim.  Mayfield, supra; see also Prickett v. Nicholson,
20 Vet. App. 370, 376 (2006) (issuance of a fully compliant
VCAA notification followed by readjudication of the claim,
such as a in a Statement of the Case (SOC) or Supplemental
SOC (SSOC), is sufficient to cure a timing defect).
Moreover, where there is an uncured timing defect in the
notice, subsequent action by the RO which provides the
claimant a meaningful opportunity to participate in the
processing of the claim can prevent any such defect from
being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317,
1323-24 (Fed. Cir. 2007); Prickett, supra, 20 Vet. App. at
376.

In this case, the August 2004 rating decision included a
description of the criteria for a higher rating under the
relevant diagnostic codes.  In addition, a letter was sent to
the Veteran in March 2006 advising him that the Board would
consider evidence showing how his disabilities affect his
employment.  The claim was subsequently re-adjudicated in the
July 2007 rating decision and November 2007 SSOC.  In
addition, the August 2004, August 2005, March 2006 and July
2007 rating decisions, the November 2004 SOC, and August
2005, March 2006 and November 2007 SSOCs explained the basis
for the RO's action, and the SOC and SSOCs provided him with
additional 60-day periods to submit more evidence.  Thus, the
Board finds that the requirements of 38 U.S.C.A. � 5103(a)
and 38 C.F.R. � 3.159(b) regarding VA's duty to notify and
assist, including the requirements set forth by the Court in
Dingess and Vasquez-Flores, have been satisfied.

In a January 2007 decision, the Board remanded the claim for
further development.  Specifically, the Board acknowledged a
July 2006 letter from Dr. W.P.H. stating that he had
undergone surgery in April 2006, but no other treatment
records were included with the letter.  Thus, the Board
remanded the case, requesting that the RO obtain treatment
records from the doctor and schedule a VA examination to
evaluate the knee following recovery from surgery.

Following this Board's remand, the RO sent a letter to the
Veteran in February 2007 with VA Form 21-4142 enclosed, for
the purpose of obtaining the Veteran's consent and
authorization to have Dr. W.P.H.'s records released.  It does
not appear that the Veteran ever returned a signed consent
form.  In addition, a VA examination was conducted in June
2007, providing a complete evaluation of both knees.  Thus,
it appears that all development requested by this Board in
its January 2007 remand has been completed to the extent
possible, and no additional development is required.

The Board finds that no further notice or assistance to the
Veteran is required to fulfill VA's duty to assist the
appellant in the development of the claim.  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).
Rather, it appears further development would serve no useful
purpose and would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the Veteran. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).

II.  Increased Rating Claim

A.  Applicable Law

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), which is based upon the average impairment of
earning capacity.  Individual disabilities are assigned
separate diagnostic codes.  See 38 C.F.R. � 4.1.  In
addition, 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 required for that rating.  Otherwise, the lower
rating will be assigned.  See 38 C.F.R. � 4.7.

In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons used to
support the conclusion.  Schafrath v. Derwinski, 1 Vet. App.
589 (1991).  These regulations include, but are not limited
to, 38 C.F.R. � 4.1, which requires that each disability be
viewed in relation to its history and that there be an
emphasis placed upon the limitation of activity imposed by
the disabling condition, and 38 C.F.R. � 4.2, which requires
that medical reports be interpreted in light of the whole
recorded history, and that each disability must be considered
from the point of view of the Veteran working or seeking
work.  In addition, 38 C.F.R. � 4.10 provides that the basis
of disability evaluations is the ability of the body as a
whole to function under the ordinary conditions of daily
life, including employment.  These requirements for the
evaluation of the complete medical history of the claimant's
condition operate to protect claimants against adverse
decision based upon a single, incomplete, or inaccurate
report, and to enable VA to make a more precise evaluation of
the disability level and any changes in the condition.

As is the case here, where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern.  See Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).  Nevertheless, where the evidence
contains factual findings that show a change in the severity
of symptoms during the course of the rating period on appeal,
assignment of staged ratings would be permissible.  Hart v.
Mansfield, 21 Vet. App. 505 (2007).

Relevant to this case are Diagnostic Codes (DCs) 5003, 5010,
and 5257-5261.  The Board notes that the VA General Counsel
has held that a Veteran who has arthritis and instability of
the knee may be rated separately under DCs 5003 and 5257.
See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997).
Likewise, the VA General Counsel has also held that, when X-
ray findings of arthritis are present and a Veteran's knee
disability is evaluated under DC 5257, the Veteran would be
entitled to a separate compensable evaluation under DC 5003
if the arthritis results in limitation of motion and/or
objective findings or indicators of pain.  See VAOPGCPREC 9-
98.  Furthermore, to warrant a separate rating for arthritis
based on X-ray findings and limited motion under DCs 5260 or
5261, the limited motion need not be compensable but must at
least meet the criteria for a zero-percent rating.  A
separate rating for arthritis could also be based on X-ray
findings and painful motion, under 38 C.F.R. � 4.59.

It is the Board's responsibility to evaluate the entire
record on appeal.  See 38 U.S.C.A. � 7104(a).  When there is
an approximate balance in the evidence regarding the merits
of an issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant.  38 U.S.C.A. � 5107(b); 38 C.F.R. �
3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail.  The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.

B.  Facts and Analysis

1.  Left Knee

In this case, service connection for residuals of a medial
meniscus tear of the left knee was initially granted in
August 1997.  Currently, a 20 percent evaluation is assigned,
effective from September 6, 2000.

The Veteran filed a claim for an increased evaluation in May
2004, and contends he is entitled to a higher rating based on
his current level of knee disability.

The Board will begin by reviewing the medical records
relating to the rating period on appeal.

In July 2004, the Veteran was afforded a VA examination.  He
reported having left knee surgery in the early 1980s,
although the claims file contains an operative report
detailing a left knee medial meniscectomy in February 1995.
He stated he experienced pain, stiffness, swelling, weakness,
fatigue, lack of endurance, and instability in both knees,
right worse than left.  Pain was worst at night just after he
went to bed, and was relieved by anti-inflammatory
medication.  He said he used to be a photographer, but had to
switch to sales because photography required him to squat,
stand, and walk a lot, which aggravated his knee pain.  Range
of motion tests showed flexion up to 95 degrees.  The
McMurray, Patrick, and Lachman signs were negative, but the
Veteran did have painful motion with these tests.  The
Veteran did not have fatigability or lack of endurance.  X-
rays showed minimal narrowing of the medial joint space.  The
diagnosis was status post arthroscopic surgery and narrowing
of medial joint space of the left knee.

An MRI taken in April 2005 revealed degenerative joint
disease changes in the medial and lateral joint space
compartments, small to moderate-size knee joint effusion, and
probably myxoid degenerative changes of the posterior horns
of the medial and lateral menisci, without evidence of a
meniscal tear.

In May 2005, the Veteran treated with Dr. R.H.L.  Left knee
range of motion was
0 to 130 degrees.  There was diffuse tenderness to palpation,
and the McMurray, Lachman, and pivot shift were negative.
There was not instability to varus or valgus stress.  The
diagnosis was moderately severe degenerative joint disease of
the left knee.  Dr. R.H.L. noted that the Veteran may require
knee replacement surgery in the future due to the
degenerative changes in his knees.

At July 2005 VA examination, the Veteran reported pain and
stiffness in his left knee with no history of weakness,
swelling, heat, or redness.  The Veteran stated he took
Ibuprofen for pain with some relief.  Flare-ups were at a
level of 8 out of 10 in severity and were precipitated by
walking for 10 minutes, standing for 20 minutes, sitting more
than 15 minutes, squatting, and using stairs.  For pain
flare-ups, the Veteran took Vicodin.  Flexion of the left
knee was up to 120 degrees, with pain at 120 degrees.  The
knee had normal stability with no weakness.  Collaterals were
stable to varus and valgus stress.  Cruciates were also
stable, and McMurray's and Lachman's signs were negative.
The examiner said that left knee function was limited an
additional 20 percent due to pain, stiffness, and lack of
endurance following repetitive use.  The diagnosis was
degenerative joint disease and degenerative changes of the
meniscus.

Instead of asking for a hearing, the Veteran requested
another VA examination, which took place in February 2006.
He reported intermittent pain 80 percent of the time.  Flare-
ups were at a level of 9 out of 10 in severity, and occurred
approximately 20 times daily, lasting for 1 hour.  It was
noted that flare-ups did not impair his self-care activities.
However, the Veteran stated he had missed 10 days of work in
the past year due to knee pain.  On physical examination,
McMurray's was positive and Lachman's was negative.  There
was negative valgus laxity, but positive varus laxity.
Flexion was to 75 degrees, and extension was to -5 degrees,
with pain from -5 to 75 degrees.  There was no further
limitation or pain with repeated efforts.  There was also no
additional limitation due to fatigue, weakness, lack of
endurance or incoordination.  The examiner diagnosed
degenerative joint disease, a medial meniscus tear, varus
laxity, residual chronic pain, and decreased range of motion.

A July 2006 letter from Dr. W.P.H. states that the Veteran
had a left knee arthroscopy along with a partial medial
meniscectomy and arthrosopic chondroplasty of the medial
femoral condyle, femoral trochlea, and patella in April 2006.
The doctor estimated it would take 6 months from the date of
the surgery for the Veteran's knee to return to a normal
state.  Further, he had degenerative arthritis and grade 3
and 4 chondromalacia in some areas, which the doctor
characterized as the same as early moderately severe
degenerative joint disease of the knee.  Finally, Dr. W.P.H.
stated the Veteran may require a total knee replacement in
the future.

The Veteran underwent another VA examination in June 2007.
Pain was worse in the left knee than the right, a change from
prior examinations.  There was stiffness, but not locking,
and sometimes the knee would "catch" during certain
movements.  Approximately once a month, the left knee would
give way.  Lack of endurance and fatigability were components
of his symptoms.  Active flexion was 110 degrees with pain
from 90 degrees, and passive flexion was to 130 degrees, with
pain from 90 degrees.  Extension was 0 degrees.  There was no
change in motion and no further limitation on repeated and
resisted testing.  Joint function was not additionally
limited by pain, fatigue, weakness, lack of endurance, or
incoordination.  The knee was stable to varus and valgus, and
the cruciate ligaments were stable on Lachman's testing.
McMurray's was weakly positive, with no click or laxity but
with significant localized pain.  There was no ankylosis.
The examiner concluded that the Veteran has post-traumatic,
post-internal derangement, degenerative arthritis of the
knees, with the left worse than the right in terms of
symptoms and findings.

There are no additional records describing treatment for the
left knee.

The Board will now consider whether the Veteran is entitled
to a higher evaluation for the left knee based on the
evidence of record relevant to the rating period on appeal.
His left knee is currently rated at 20 percent under DC 5257,
which contemplates impairment of the knee manifested by
recurrent subluxation or lateral instability.  A 10 percent
rating is assigned where instability is slight, a 20 percent
rating is assigned where instability is moderate, and a 30
percent rating is assigned where instability is severe.

The Board finds that the evidence weighs against an increased
rating under DC 5257.  The July 2005 and June 2007 VA
examiners both noted that the cruciate ligaments were stable.
Further, while varus laxity was noted during the February
2006 VA examination, the knee was stable to both varus and
valgus stress during the June 2007 VA examination.  Further,
the Veteran reported that his left knee would "give way"
approximately once a month.  Thus, while there is evidence of
some instability of the left knee, there is no basis to
characterize the instability as severe, which would warrant a
30 percent rating under DC 5257.

The Board has also considered whether any other diagnostic
code would allow for an increased rating for the Veteran's
left knee disability, manifested by instability or loss of
motion.  DC 5258 addresses dislocation of semilunar cartilage
with frequent episodes of locking, pain and effusion into the
joint.  However, the highest rating available under this code
is 20 percent, so it would not afford a higher rating for the
Veteran.  DC 5259 addresses removal of symptomatic semilunar
cartilage, but again, the highest rating available is less
than that which is already assigned.

In considering a higher rating based on loss of range of
motion, DC 5260 relates to limitation of the flexion of the
leg.  Where flexion is limited to 60, 45, 30, and 15 degrees,
disability ratings of 0, 10, 20, and 30 percent,
respectively, are assigned.  DC 5261 relates to limitation of
the extension of the leg.  Where extension is limited to 45,
30, 20, 15, 10, and 5 degrees, disability ratings of 0, 10,
20, 30, 40, and 50 percent, respectively, are assigned.
However, in this case, the evidence of records fails to
reveal flexion or extension limited to even non-compensable
levels.  The most limited flexion of 75 degrees was
demonstrated during the February 2006 VA examination, while
extension has never been shown as worse than 0 degrees.

However, the Board must consider whether the competent
evidence establishes any additional functional limitation due
to factors such as pain, weakness, incoordination, or
fatigability such that the Veteran's disability picture is
more nearly approximated by a rating higher than 20 percent.
See 38 C.F.R. �� 4.40 and 4.45 and DeLuca v. Brown, 8 Vet.
App. 202, 206-07 (1995).  The Board also must consider
Diagnostic Code 5003, which allows for a 10 percent rating
even in the absence of evidence of limitation of motion that
would allow for a compensable evaluation under DCs 5260 and
5261.

The Veteran in this case reported intermittent knee pain from
2005 to 2007 which was controlled somewhat by medication.  At
the July 2004 VA examination, he stated that he was no longer
able to engage in photography, his prior job, because of the
standing, walking, and squatting required, and had switched
into a sales career secondary to his knee pain.  In February
2006, he reported flare-ups of pain up to 20 times daily, at
a severity level of 9 out of 10.  Further, he stated he had
missed 10 days of work over the past year due to knee pain.
Finally, the July 2005 VA examiner estimated that left knee
function was limited an additional 20 percent due to pain,
stiffness, and lack of endurance following repetitive use.

Based on our review of the Veteran's complaints of pain and
limitation on functioning, the Board finds that there is no
evidence to warrant a rating higher than 20 percent under DCs
5260 or 5261.  Indeed, the Veteran's flexion and extension
measurements do not allow for a compensable award under
either of those codes.

The Board also acknowledges VAOPGCPREC 9-2004 (Sept. 17,
2004), where it was held that a claimant who has both
limitation of flexion and limitation of extension of the same
leg must be rated separately under DCs 5260 and 5261 to be
adequately compensated for functional loss associated with
injury to the leg.  As a result, if the evidence of record
reflects compensable loss of both flexion and extension of
the same leg, the Veteran would be entitled to the combined
evaluation under DCs 5260 and 5261, per the combined ratings
table in 38 C.F.R. � 4.25.  However, as already discussed,
the medical findings do not establish loss of flexion or
extension of the left leg to a compensable degree, and
therefore separate evaluations for limited flexion and
extension of the left knee are not applicable here.  Again,
additional limitation of function was considered in arriving
at this conclusion.

Thus, the evidence fails to establish a compensable
evaluation for limitation of motion of the left knee.  In
this regard, Diagnostic Code 5003 provides that where
application of the appropriate diagnostic code results in a
noncompensable evaluation, a rating of 10 percent may be
awarded where limitation of motion is objectively confirmed
by findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion.  However, as a 20 percent
evaluation is already assigned, such provisions cannot serve
as a basis for a higher rating here.  DC 5003 also enables a
20 percent rating to be applied where the record contains X-
ray evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, with occasional incapacitating
exacerbations.  However, as noted above, the Veteran already
has a 20 percent evaluation.

The Board can identify no other diagnostic code which would
allow for an increased rating for degenerative joint disease.
The evidence fails to demonstrate ankylosis of the knee, so
DC 5256 is inapplicable.  Further, there is no evidence the
Veteran has undergone a knee replacement, so DC 5055 is also
inapplicable.

In sum, the Board finds that, based on the preponderance of
the evidence, the criteria for a higher evaluation for
degenerative joint disease of the knee based on limitation of
motion and instability have not been met.

In addition, the Board has considered the complaints of pain
and functional limitation detailed above, and acknowledges
that the Veteran is competent to give evidence about the
symptoms he experienced.  See Layno v. Brown, 6 Vet. App. 465
(1994).  However, despite the complaints and the objective
findings of left knee pain, the evidence nevertheless fails
to demonstrate a disability picture that most nearly
approximates a higher evaluation for either instability or
degenerative joint disease of the left knee.

Finally, while the Veteran reports that he has missed work
due to his knee pain (10 days in one year), the evidence does
not reflect that this disability has caused marked
interference with employment (beyond that already
contemplated in the assigned evaluation), or has necessitated
frequent periods of hospitalization, such that application of
the regular schedular standards is impracticable.  Hence,
referral for consideration of an extra-schedular evaluation
under 38 C.F.R. � 3.321 is not warranted.

2.  Right Knee

Service connection was initially granted for traumatic
degenerative joint disease of the right knee in a September
2000 rating decision.  The Veteran was assigned a 20 percent
evaluation under DC 5257.  The evaluation was increased to
100 percent effective from June 9, 2005, following the
Veteran's right knee surgery, and then readjusted to 30
percent under DC 6260, effective from August 1, 2005.  The
rating was again increased to 100 percent following his April
2006 knee surgery, but readjusted back to 30 percent
following the recovery and convalescence period.

The periods during which the Veteran's knee disability was
rated at 100 percent need not now be considered, because 100
percent is the highest evaluation available under any
diagnostic code.  Thus, for clarification of the periods the
Board will be considering, the Veteran was rated at 20
percent from September 6, 2000, to June 8, 2005, and at 30
percent from August 1, 2005, to April 27, 2006, and from June
1, 2006, forward.

The Veteran filed a claim for an increased evaluation in May
2004, and contends he is entitled to a higher rating based on
his current level of right knee disability.  The Board will
begin by reviewing the medical records relating to the rating
period on appeal.

At the previously mentioned July 2004 VA examination, the
Veteran reported that his right knee pain was worse than the
left.  He stated he had undergone right knee surgery in the
late 1980s, which is consistent with records in the claims
file that show a right knee medial meniscectomy in August
1987.  Symptoms were largely the same as described above,
with range of motion from 0 to 95 degrees, and negative
McMurray and Lachman tests.  The diagnoses were status post
arthroscopic surgery and narrowing of the medial joint spaces
in standing.

In May 2005, the Veteran was examined by Dr. R.H.L.  He again
reported right knee pain greater than left.  Range of motion
was 0 to 130 degrees.  McMurray's was positive, while
Lachman's was negative.  There was negative instability to
varus and valgus stress.  An MRI taken the month prior showed
moderately severe degenerative joint disease with meniscal
capsular separation as well as chronic degenerative medial
meniscal tear.  The doctor assessed a meniscal tear in the
right knee and recommended a partial medial meniscectomy,
which was performed in June 2005.

At the July 2005 VA examination, there were no reports of
dislocation or recurrent subluxation.  Symptoms were largely
the same as described above.  Flexion of the right knee was
to 50 degrees, with pain beginning at 50 degrees.  Stability
was normal and there was no weakness or effusion.  Collateral
and cruciate ligaments were stable.  Joint function of the
right knee was limited an additional 50% due to pain,
stiffness, and lack of endurance following repetitive use.
The examiner assessed degenerative joint disease.

Next, at the February 2006 VA examination, the Veteran
reported stiffness in the right knee, but pain at a level of
0 out of 10.  He did state that he had flare-ups at a level
of 8 or 9 out of 10 in severity approximately once a week.
Deep knee bending brought on the flare-ups.  McMurray's was
positive, but Lachman's was negative and there was no varus
or valgus laxity.  Flexion was 95 degrees with pain at the
end point of flexion and extension was to 0 degrees.  There
was no further limitation or pain with repeated efforts.  The
diagnosis was degenerative joint disease, a chronic meniscal
tear, residual chronic pain and decreased range of motion.

In June 2007, the Veteran underwent another VA examination.
He reported left knee pain worse than the right.  Active
flexion of the right knee was to 100 degrees, with pain from
70 degrees, and passive flexion was to 120 degrees, with
significant pain at 120 degrees.  Extension was to 0 degrees.
The collateral ligaments were stable to varus and valgus, and
McMurray's and Lachman's were negative on the right.  There
was no additional limitation of function due to pain,
fatigue, weakness, lack of endurance, or incoordination.  The
diagnosis was post-traumatic, post-internal derangement,
degenerative arthritis of both knees, with the left being
worse than the right in symptoms and findings.

The Board will now determine whether a rating in excess of 20
percent is warranted for the period through June 8, 2005
(when the Veteran underwent a meniscectomy of the right knee
and at which point the rating was temporarily increased to
100 percent effective from June 9, 2005).  During this
period, the Veteran was assigned a 20 percent evaluation
under DC 5257, described above.

Similar to the left knee, the evidence does not support an
increased evaluation under DC 5257 based on instability.  The
ligaments were noted to be stable in both the July 2004 VA
examination and the May 2005 evaluation conducted by Dr.
R.H.L.  There was no history of recurrent subluxation at
either examination.  Thus, the evidence does not warrant
assignment of the next higher 30 percent evaluation under DC
5257.

The Board has also considered whether any alternative
diagnostic codes would allow for an increased rating for the
Veteran's right knee disability manifested by instability or
loss of motion.  DC 5258, described above, addresses
dislocation of semilunar cartilage with frequent episodes of
locking, pain and effusion into the joint.  However, the
highest rating available under this code is 20 percent, so it
would not afford a higher rating for this Veteran.  DC 5259
addresses removal of symptomatic semilunar cartilage, but
again, the highest rating available is less than that which
is already assigned to the Veteran.

With regard to range of motion, the Veteran's flexion was
limited to 95 degrees at the July 2004 VA examination, and
extension was 0 degrees.  Thus, there is no evidence of
limitation that would even reach a non-compensable level
under DC 5260 and/or DC 5261.  Therefore, these codes do not
provide a basis for an increased evaluation for limitation of
motion.

As above, the Board has considered whether any of the DeLuca
factors have caused additional limitation so as to warrant an
increased evaluation.  However, in this case, there has been
no indication that there was additional limitation of motion
based on pain, fatigue, weakness, or incoordination.
Although the Veteran complained of knee pain that affected
his activities of daily living, the range of motion tests did
not demonstrate any additional limitations.  Indeed, the
range of motion tests in July 2004 and May 2005 both resulted
in non-compensable levels of limitation under DC 5260 and DC
5261.  Thus, the overall evidence fails to show that pain
resulted in additional functional limitation such as to
enable a finding that the Veteran's disability picture more
nearly approximates the next-higher 30 percent evaluation
under DC 5260 or DC 5261.

As with the left knee, the evidence does not establish loss
of flexion or extension of the right leg to a compensable
degree, and therefore separate evaluations for limited
flexion and extension of the right knee under DC 5260 and/or
DC 5261 are not applicable here as prescribed by VAOPGCPREC
9-2004, supra.

The Board has also considered Diagnostic Code 5003.  However,
as previously discussed, the highest evaluation available
under DC 5003 is 20 percent.  As a 20 percent evaluation is
already assigned during this period, DC 5003 cannot serve as
a basis for a higher rating here.

Finally, the Board has considered whether any other
diagnostic code would allow for an increased rating for
degenerative joint disease with loss of motion.  However, the
evidence fails to demonstrate ankylosis of the knee, so DC
5256 is inapplicable.  Further, there is no evidence the
Veteran has undergone a knee replacement, so DC 5055 is also
inapplicable.

In sum, the Board finds that, based on the preponderance of
the evidence, the criteria for the next higher 30 percent
evaluation for degenerative joint disease of the knee based
on limitation of motion and instability have not been met for
the period ending on June 8, 2005.

Next, the Board considers whether the Veteran is entitled to
an evaluation in excess of 30 percent for the periods August
1, 2005, to April 27, 2006, and from June 1, 2006, forward.
He is currently assigned a 30 percent evaluation under DC
5260, for limitation of flexion.

Objectively, flexion at its worst during this period was 95
degrees, and extension was 0 degrees.  The Board notes that
these measurements do not even warrant a compensable
evaluation under DC 5260 or DC 5261.  Thus, there is no basis
for an increased evaluation under either code.

The Board has also considered the DeLuca factors, but since
the Veteran reported a pain level of 0 out of 10 at the
February 2006 VA examination, and the June 2007 VA examiner
specifically noted there was no additional limitation of
function due to pain, fatigue, weakness, lack of endurance,
or incoordination, the Board finds that these factors do not
warrant an increased evaluation under DC 5260-5261.

Further, separate evaluations for limited flexion and
extension of the right knee under Diagnostic Codes 5260 and
5261 are not applicable here as prescribed by VAOPGCPREC 9-
2004, described above, as there is no evidence of even
compensable loss of motion during this period.

The Board has also considered whether any alternative
diagnostic codes would allow for an increased evaluation for
loss of motion.  However, DC 5256 is inapplicable, as there
is no evidence of ankylosis.  Further, there is no evidence
the Veteran has undergone a knee replacement, so DC 5055 is
also inapplicable.

The Board has also considered whether any alternative
diagnostic codes would allow for an increased evaluation for
instability.  However, as described above, the highest rating
available under DC 5258 is 20 percent, so it would not afford
a higher rating for this Veteran.  DC 5259 addresses removal
of symptomatic semilunar cartilage, but again, the highest
rating available is less than that which is already assigned
to the Veteran.

The Board has considered DC 5003, described above, but finds
that it is inapplicable because the highest evaluation
available under DC 5003 is 20 percent, which is less than the
rating currently assigned to the Veteran.

In sum, the evidence weighs against a finding of entitlement
to an evaluation in excess of 30 percent for the periods
August 1, 2005, to April 27, 2006, and from June 1, 2006,
forward.

In addition, as above, the Board has considered the
complaints of pain and functional limitation detailed above,
and acknowledges that the Veteran is competent to give
evidence about the symptoms he experienced.  See Layno v.
Brown, 6 Vet. App. 465 (1994).  However, despite the
complaints of right knee pain, the evidence nevertheless
fails to demonstrate a disability picture that most nearly
approximates a higher evaluation for either instability or
degenerative joint disease of the right knee.

Finally, while the Veteran reports that he has missed work
due to his knee pain (up to 10 days in one year), the
evidence does not reflect that the disabilities at issue have
caused marked interference with employment (i.e., beyond that
already contemplated in the assigned evaluation), or
necessitated frequent periods of hospitalization, such that
application of the regular schedular standards is rendered
impracticable.  Hence, referral to consider the assignment of
an extra-schedular evaluation under 38 C.F.R. � 3.321 is not
warranted.

ORDER

1.  Entitlement to an evaluation in excess of 20 percent for
residuals of a medial meniscus tear of the left knee is
denied.

2.  Entitlement to an increased evaluation for traumatic
arthritis of the right knee associated with a medial meniscus
tear with limitation of flexion, rated at 20 percent from
September 6, 2000, to June 8, 2005, and at 30 percent from
August 1, 2005, to April 27, 2006, and from June 1, 2006
forward, is denied.

___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: A C MACKENZIE

disposition: remanded

text:
Citation Nr: 0907000
Decision Date: 02/25/09    Archive Date: 03/05/09

DOCKET NO.  07-11 054	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUE

Entitlement to a disability rating in excess of 40 percent
for lumbar degenerative disc disease at L5-S1 with chronic
lumbar stain.

REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Kristy L. Zadora, Associate Counsel

INTRODUCTION

The Veteran had active duty service from November 1990 to
February 1991.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from December 2006 rating decision of the
Detroit, Michigan regional office (RO) of the Department of
Veterans Affairs (VA) which continued the Veteran's 40
percent back disability rating.

The Veteran testified before the undersigned Acting Veterans
Law Judge at a November 2008 Travel Board hearing.  A
transcript of that hearing has been associated with the
claims folder.

At the November 2008 Travel Board hearing, and subsequent to
issuance of the statement of the case (SOC), the Veteran
submitted evidence pertinent to the claim on appeal.  This
evidence was accompanied by a waiver of RO and VAMC
consideration.  See 38 C.F.R. � 20.1304 (2008).

The Board, in an August 2002 decision, referred the Veteran's
pinched neck nerve service-connection claim, including as
secondary to her service-connected low back disability, and
her total disability rating based upon individual
unemployability (TDIU) claim to the RO for further
development and adjudication.  It does not appear from the
claims folder that these matters have been addressed.  These
matters are again referred to the RO for further development
and adjudication.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the Veteran
if further action is required.

REMAND

At her November 2008 Travel Board hearing, the Veteran
testified that she now experiences a shooting pain down her
left leg, making it difficult for her to sleep at night.
This pain as a tingling that runs down into her root, but
indicated that the numbness begins at her hip and goes all
the way into her thigh.  The Veteran also reported that her
back condition had gotten worse, that she now suffered from
incapacitating episodes and has been prescribed bed rest from
her doctor.

A May 2006 magnetic resonance imaging (MRI) test revealed
"probable impingement of bilateral S1 nerve roots."  The
Veteran complained of radiating left leg pain in her June
2006 VA neurosurgery consultation.

The Veteran did not report this radiating left leg pain
during her November 2006 VA orthopedic examination, and
physical examination revealed no evidence of any neurological
deficiency in her lower extremities.  No opinion as to the
purported left leg radiculopathy was provided.

The Veteran is entitled to a new VA examination where there
is evidence that the condition has worsened since the last
examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997);
Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95
(1995).  Given the Veteran's November 2008 Travel Board
testimony and her June 2006 VA neurosurgery consultation, the
Board finds that a new examination is warranted.

In addition, the Veteran described attending VA physical
therapy for her back condition as well as being given an
electrode machine to assist in managing her back pain.  These
treatment records are not contained in the claims folder.  VA
has a duty to obtain records of the reported treatment.
Massey v. Brown, 7 Vet. App. 204 (1994).   These records are
relevant to the claims, and as they are adequately
identified, VA has an obligation to obtain them.  38 U.S.C.A.
� 5103A.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should obtain all VA
treatment records regarding the Veteran's
treatment for her back condition,
including any physical therapy and/or
orthopedic treatment records.  If any
records are unavailable, a note to that
effect should be placed in the claims
folder, and the Veteran and her
representative so notified in writing.

2.  Following the completion of the
development listed above, the RO/AMC
should schedule the Veteran for a VA spine
examination to determine the current
status of her service-connected lumbar
degenerative disc disease. The examiner
should provide an opinion concerning the
current range of motion, including whether
there are   objective clinical indications
of pain/painful motion, weakened movement,
premature/excess fatigability,
incoordination, or flare-ups; these
determinations should, if possible, be
expressed in terms of the degree of
additional range of motion loss due to
such factors.  If ankylosis of the spine
is present, the examiner should so state.
Finally, an opinion as to the length and
frequency of any incapacitating episodes
attributable to the Veteran's service-
connected back disability should be
provided.

The examiner should also indicate whether
the Veteran suffers from radiculopathy or
other neurological condition that has been
caused by her service-connected lumbar
degenerative disc disease.  The examiner
should specifically identify any evidence
of radiculopathy due to the service-
connected disability, to including reflex
changes, characteristic pain, and muscle
spasm.  Any sensory or motor impairment in
the lower extremities due to service-
connected disability should be identified.
The examiner should provide an opinion
with respect to any nerves involved as to
whether there is complete paralysis or
incomplete paralysis that is mild,
moderate, moderately severe, or severe.

The rationale for all opinions expressed
must also be provided.

3.  If the benefits sought on appeal are
not fully granted, the RO/AMC should issue
a supplemental statement of the case
before returning the case to the Board, if
otherwise in order.  This readjudication
should include the question of whether
separate compensable evaluations for
radiculopathy are warranted.

The Veteran has the right to submit additional evidence and
argument on this matter.  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.A. �� 5109B, 7112 (West Supp. 2008).

_________________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2008).