Citation Nr: 0603296 Decision Date: 02/06/06 Archive Date: 02/15/06 DOCKET NO. 03-01 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain. 2. Entitlement to an initial increased evaluation for right knee chondromalacia patellofemoral pain, evaluated as noncompensable for the period from July 16, 1999 to April 28, 2004, and as 10 percent disabling thereafter. 3. Entitlement to an initial increased evaluation for left knee chondromalacia patellofemoral pain, evaluated as noncompensable for the period from July 16, 1999 to April 28, 2004, and as 10 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from November 1994 to July 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2004, the Board remanded the veteran's claim to the RO for further evidentiary development. By way of procedural background, the Board notes that, in September 1999, the RO granted service connection for lumbosacral strain, awarded a 20 percent rating, and granted service connection and assigned noncompensable ratings for right and left knee chondromalacia patellofemoral pain, a right index finger scar, and an inguinal hernia. In November 1999, the veteran submitted a timely notice of disagreement as to these issues and, in December 1999, the RO issued a statement of the case (SOC). In a January 2000 signed statement that directly responded to the SOC, the veteran expressly disagreed with the ratings assigned to his service- connected back and knee disabilities. A supplemental statement of the case (SSOC) was issued in March 2000 that addressed his knee and back disabilities, but did not acknowledge receipt of the veteran's written statement. Then, in an April 2002 written statement, the veteran requested a reevaluation of his bilateral knee and low back disabilities. In a September 2002 rating decision, the RO awarded 10 percent evaluations for the left and right knee disabilities, effective from April 28, 2002. The December 2004 Board remand addressed the veteran's claim for an increased initial rating for his service-connected lumbosacral strain. However, upon review of the entire record, the Board is of the opinion that the issues as now characterized on the title page most accurately reflect the current status of the veteran's claims. The issues of increased ratings for right and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The objective and competent medical evidence of record reflects that the veteran's service-connected lumbosacral strain is manifested primarily by back pain and limitation of motion of the lumbar spine; and the evidence preponderates against a finding that the service-connected lumbosacral strain is manifested by symptomatology of more than moderate severity or more than moderate functional impairment due to pain; nor was there evidence of ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The schedular criteria for an initial rating in excess of 20 percent for the veteran's service-connected lumbosacral strain are not met. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.71a, Diagnostic Code (DC) 5003-5295 (2002), effective prior to September 26, 2003; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code 5237 (2005), effective September 26, 2003. REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). 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. 2005); 38 C.F.R. § 3.159(b) (2005); 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; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In the Mayfield case, the U.S. Court of Appeals for Veterans Claims addressed the meaning of prejudicial error (38 U.S.C.A. § 7261(b)), what burden each party bears with regard to the Court's taking due account of the rule of prejudicial error, and the application of prejudicial error in the context of the VCAA duty-to-notify (38 U.S.C.A. § 5103(a)). Considering the decisions of the Court in Pelegrini and Mayfield and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. In Pelegrini, the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to VCAA enactment. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. In May 2002 and January 2005 letters, the RO informed the appellant of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. In addition, the appellant was advised, by virtue of December 1999, December 2002, and January 2003 SOCs and April 2003, May 2004, and July 2005 supplemental statements of the case (SSOCs) issued during the pendency of this appeal, of the pertinent law, and what the evidence must show in order to substantiate his claim. We therefore conclude that appropriate notice has been given in this case. The Board notes, in addition, that a substantial body of lay and medical evidence was developed with respect to the appellant's claim, and that the SOC and SSOCs issued by the RO clarified what evidence would be required to establish an increased rating for lumbosacral strain. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. Further, the claims file reflects that the February 2005 SOC contained the new duty-to-assist regulation codified at 38 C.F.R. § 3.159 (2004). See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). All the above notice documents must be read in the context of prior, relatively contemporaneous communications from the RO. See Mayfield, supra, at 125. The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that he has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. Accordingly, we find that VA has satisfied its duty to assist the appellant in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under both former law and the VCAA. The Board, therefore, finds that no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In fact, the Court has stated, "The VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). 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) (West 2002); 38 C.F.R. § 3.102 (2004). 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. II. Factual Background Service medical records include a January 1998 radiology report of an x-ray of the veteran's lumbar spine. It was noted that he complained of low back pain radiating into his left leg. The radiologist's impression was evidence of degenerative disk disease at L5-S1 with no evidence of compressive disk herniation at that level or other level and no spinal stenosis. There was also no evidence of fracture. A February 1998 magnetic resonance image (MRI) was positive for degenerative changes at L5-S1. The veteran's back pain was treated with epidural injections. A December 1998 Medical Board report includes diagnoses of chronic low back pain and left sciatica, and secondary degenerative disc disease and left sided radiculitis at L5-S1. A May 1999 private MRI report of the veteran's lumbar spine includes an impression of disc signal alteration noted at L5- S1 consistent with degenerative disc disease, no obvious disc bulge or herniation and no evidence for central, neural foraminal or lateral recess encroachment. Post service, the veteran, who was 27 years old, underwent VA general medical examination in August 1999. According to the examination report, he complained of low back pain that started in1997 and said a physician diagnosed degenerative joint disease. On examination, his gait was non antalgic, without use of assistive devices, and he did not limp. Active range of motion of the lumbosacral spine was flexion to 75 degrees, extension to 30 degrees, and lateral flexion to 35 degrees, bilaterally, that the examiner reported was normal range of lumbosacral spine motion. There was some pain on palpation of the lumbosacral spine at L3-4 and L4-5. There were no bony or soft tissue abnormalities of the lumbosacral spine and no muscle spasm or fasciculation of the lumbosacral paraspinal muscles. The clinical assessment noted low back pain, with focal findings being some pain on palpation of the lumbosacral spine. There were no other significant focal neuromuscular or functional deficits noted. According to a November 1999 private treatment record from N.E.M., M.D., the veteran complained of back pain and denied any leg radiating pain, burning, dysesthesias, or incontinence. He had no spasm of the low back. There were no abnormal contours with it. He could do a sit up without difficulty. On forward bending, the veteran was able to get his fingertips within 4 inches of his toes. Backward bending was more painful, but was fuller. There was no problem with lateral bending in pain or limitation. Straight leg raise was negative. MRI of the back showed colorimetric changes at the L5-S1 disk consistent with degenerative disk disease. There was no neural encroachment, no stenosis and otherwise it appeared normal. The pertinent diagnosis was degenerative disk disease. In an April 2002 written statement the veteran requested re- evaluation of his knee and back disabilities and said he was unable to work due to his disabilities and recent motor vehicle accident. According to a May 2002 private medical record from C.J.N., M.D., the veteran was seen for complaint of neck pain associated with an April 2002 rear-end collision that also aggravated his low back pain. Prescribed medication did not resolve his pain. He denied any bowel or bladder dysfunction and had some bilateral extremity weakness. It was noted that the veteran had a history of mild chronic type low back pain at the time of the accident that was significantly increased after the accident. On examination, the veteran had significant reduction in range of motion of his lumbar spine with increased lumbar paraspinal pain upon palpation. He had a positive straight leg raise, bilaterally, and pain with range of motion of his lumbar spine. It was noted that a MRI of the lumbar spine taken at the time, revealed degenerative disc disease that was mild at L5/S1 with a disc bulge at L5- S1. Diagnoses were intervertebral disc disorder of the cervical and lumbar spine, and degenerative disc lumbar spine. Treatment included epidural injection. VA outpatient treatment records, dated in May and June 2002, reflect the veteran's complaints of neck and back pain. In June 2002, he reported that his back gave out several times a month, when he was unable to walk and lift with his arms. He rated his pain as a 10 on a scale of 1 to 10, and described radiating pain down his legs and from his neck into his arms. He denied numbness/tingling, but had profound weakness with pain that resolved when the pain was gone. He recently received an epidural injection without improvement. X-rays taken at the time showed unremarkable lumbar and cervical spines. The veteran underwent VA orthopedic examination in July 2002. According to the examination report, he gave a history of low back pain that radiated to his left leg and sometimes up to his spine, with occasional perceptions of leg weakness that never led to falling. He still had these symptoms that worsened and were constantly present, to some extent at a relatively low level of intensity. Once or twice a month his back went out, that was an exacerbation of the intensity of back pain, lasted about two days, and involved use of rest, local heat and prescribed medication to get him back to his steady state. He also recently had two epidural steroid injections with some degree of improvement. The veteran's back pain limited his ability to bend, lift, participate in sports or hobbies or walk, or sit comfortably for more than 15 or 10 minutes. He was unemployed, not due to back pain, but due to additional symptoms incurred in an April 2002 motor vehicle accident. He was employed full time before that situation. On examination, the veteran had bilateral knee pain and walked with a guarded gait. Straight leg raising testing was negative in the sitting position and produced complaints of low back pain at almost 90 degrees. Straight leg testing in the supine position produced a complaint of pain at a level of between 60 and 75 degrees on each side. Range of motion of the lumbar spine was flexion to 60 degrees, extension to 15 degrees, and lateral bending to 30 degrees, bilaterally. Rotation was adequate and without complaints of pain. Diagnoses included mechanical low back pain and it was noted that recent x-rays did not show any arthritis or degenerative changes. During his March 2003 personal hearing at the RO, the veteran complained of having spasms and radiating pain into his legs, several times a month that required bedrest for several days. During the hearing, the veteran's accredited representative suggested consideration of the veteran's service-connected back disability under DC 5293 that evaluates intervertebral disc syndrome. The veteran underwent VA orthopedic examination in April 2004. According to the examination report, the veteran complained of constant low back pain that radiated to his legs. He had increased intensity with flare ps that occurred with long standing or sitting, or bending. He avoided lifting. He took pain medication. The veteran denied numbness, weakness, and bladder or bowel complaints. He had some erectile dysfunction. He was able to achieve an erection but lost it with back pain. He did not walk with assistive devices and denied having back surgery. The veteran was able to bathe and dress himself. He worked as a bus driver and missed a few days in the past year due to his back disability. On examination, there was no spinal deformity noted. Forward flexion of the dorsolumbar spine was to 60 degrees (out of 90 degrees), backward extension was to 10 degrees (out of 30 degrees), lateral flexion was to 10 degrees (out of 30 degrees bilaterally) and rotation was to 20 degrees (out of 45 degrees bilaterally). All the movements caused pain and the veteran stopped when the pain started. There was no fatigue, weakness or lack of endurance and no increase in loss of range of motion with repetitive movements. The examiner stated that any estimate of loss of motion from a flare up would be pure speculation. There was no spasm, weakness or tenderness and no postural abnormalities noted. Neurological examination findings were physiological. As to intervetebral disc syndrome, the VA examiner noted that the veteran had MRIs that showed degenerative disc disease and had radiating pain into his legs, but the VA examiner reported that no intervertebral disc symptoms were seen during the current examination. The diagnosis was degenerative disc disease with residuals. An April 2004 private MRI report of the veteran's lumbar spine includes an impression of mild degenerative changes at L5-S1 with a small central protrusion that was not compressive. According to private medical records dated in May 2004, the veteran was referred to T.H.R., M.D., for evaluation of lower back pain with radiation into the legs, associated with pain and numbness. The veteran's symptoms were typically brought on with physical activity and prolonged sitting also exacerbated his symptoms. It was noted that the veteran's symptoms started in service, but increased after a rear-end collision. Findings of an electromyography (EMG)/nerve conduction study (NCV) indicated an abnormal study that gave evidence suggestive of right S1 radiculopathy. In a May 2004 written statement, Dr. T.H.R. said the veteran had symptoms of lower back pain with radiation of bilateral numbness to his buttocks and legs. The veteran worked as a bus driver and prolonged sitting exacerbated his symptoms. Dr. T.H.R. said the veteran had S1 radiculopathy by nerve conduction EMG study and L5-S1 disc degeneration with minimal focal central protrusion and no compression. In a February 2005 letter, Dr. T.H.R. said he treated the veteran for S1 radiculopathy that caused bilateral lower extremity pain that was moderate to severe in severity. The diagnosis was confirmed by MRI and EMG/NCV findings. Treatment included physical therapy and prescribed medication. Dr. T.H.R. stated that the veteran currently worked as a bus driver and prolonged sitting affected his physical condition. According to this physician, the veteran's symptoms progressively worsened and his currently employment was a direct trigger for worsening his existing condition. Dr. T.H.R. said that the veteran's condition was currently "moderate" and did not require surgical intervention. In February 2005, the veteran underwent VA orthopedic examination. According to the examination report, the VA examiner reviewed the veteran's medical records and noted the April 2004 VA examination report, described above. The veteran complained of constant back pain. He had intermittent but recurrent radiating pain down the back of both legs and numbness to his feet, bilaterally. He took a variety of pain medications and said lying down provided some relief. He had no real specific flare-ups and had increased pain with any kind of weight bearing, standing, walking, etc that worsened the longer he was up. Further, there were no incapacitating episodes in the last year with the veteran ordered to bed for any length of time by his physician. He complained of erectile dysfunction that he said was due to pain he had in his back. He also felt as though he had to defecate and urinate but when he felt that he eliminated appropriately and did not soil himself. He had no evidence of incontinence according to the history. The veteran said he really did not do any kind of walking or running or any kind of long period of time ambulation activities due to his back. He did not use a cane, crutches or a walker. He did not wear a back brace. He used a back support when he worked driving a bus. He said he could probably walk or stand for 15 to 20 minutes. He denied any unsteadiness, aside from his first steps in the morning after lying down and had no history of falls. Functionally, the veteran had pain with any of his activities. He had no problem with his activities of daily living. He lost about 30 days in the past year from his bus driver position due to problems driving and the aggravation of twisting, bending, and stooping. He was unable to do any recreational activities and was unable to do much in the way of chores around the house due to his problem. On examination, the veteran's back was normal. He had midline tenderness in the entire lumbar area to direct palpation. He had tenderness over the right sacroiliac and the left sciatic notch areas, but not the left sacroiliac and right sciatic notch areas. Range of motion was backward bend to about 15 degrees when he complained of pain and stiffness and stopped. Lateral bending was to 25 degrees with complaints of pain at that point. Rotation was to 45 degrees in each direction with a lot of pain reported at that point. Forward bending was to 60 degrees with pain at that point. There was no change with repetitive motion. Strength in the lower extremities, testing against resistance and activity, elicited a response of pain with wincing in the back. It was noted that it seemed to be worse in the right leg than in the left leg. Knee and ankle jerks were intact and symmetrical, bilaterally. Neurological examination revealed the veteran was able to perceive light touch symmetrically and equally over both lower extremities. The VA examiner noted that a recent MRI showed some diffuse bulging discs with a prominent disc bulge at the L5-S1 area with degenerative changes at L5-S1 and other discs in the lumbar spine area. The diagnosis was degenerative disc disease/degenerative joint disease of the lumbar spine with lumbar strain and residuals. In a February 2005 written medical evaluation, C.N.B., M.D., a neurologist, said he reviewed the veteran's medical records for the purpose of making a medical opinion regarding the veteran's spine injury. Dr. B. said he reviewed post service medical records, imaging reports, other medical opinions, a December 2004 statement from the veteran and medical literature. He specifically listed excerpts of January and February 1998 medical records, the May 2002 statement from Dr. N., the April 2004 MRI report, May 2004 EMG report, and a December 2004 statement from the veteran. In Dr. B.'s opinion, the veteran's back was currently underrated and should be rated as "40 to 60 percent medical diagnostic code category based on his EMG/MRI documented sciatica and radiculopathy". In a July 2005 written statement signed by Dr. T.H.R. and a physician's assistant, it was noted that the veteran had a history of chronic back pain with radiation to the bilateral lower extremities that was worsened by prolonged sitting and standing. The veteran also had significant numbness in the bilateral lower extremities with extension of the bilateral lower extremities. Dr. T.H.R. wondered if the veteran was provided with a full neurological examination. It was noted that the veteran had intact sensation on examination but did not confirm findings were inconsistent with radiculopathy. According to Dr. T.H.R., the veteran's reflexes were intact clinically, but that did not rule out the presence of radiculopathy. The veteran's current occupation required prolonged periods of sitting, as a bus driver. He was unable to medications that addressed his symptoms as they caused drowsiness. In sum, Dr. T.H.R. reported clinical findings consistent with lumbar and S1 radiculopathy confirmed by MRI, EMG and nerve conduction findings. In an August 2005 written statement, the veteran's wife reported that he was constantly bother with back and leg problems. She said he experienced difficulty sleeping and had morning pain and stiffness. III. Legal Criteria and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (2005) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service- connected joint disabilities, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is inadequate for rating purposes. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities, and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2005). Not all disabilities will show all the findings specified in the rating criteria but coordination of the rating with functional impairment is required. 38 C.F.R. § 4.21 (2005). 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. 38 C.F.R. § 4.7 (2005). The veteran's entire history is reviewed when making a disability rating. 38 C.F.R. § 4.1. The Board notes that the September 1999 rating decision granted service connection and the currently assigned 20 percent disability evaluation. In November 1999, the RO received the veteran's notice of disagreement with the disability evaluation awarded to his service-connected back disability. The U.S. Court of Appeals for Veterans Claims has addressed the distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of entitlement to compensation, and a later claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court noted that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) as to the primary importance of the present level of disability, is not necessarily applicable to the assignment of an initial rating following an original award of service connection for that disability. Rather, the Court held that, at the time of an initial rating, separate ratings could be assigned for separate periods of time based upon the facts found - a practice known as assigning "staged" ratings. In Meeks v West, 12 Vet. App. 352 (1999), the Court reaffirmed the staged ratings principle of Fenderson and specifically found that 38 U.S.C.A. § 5110 (West 2002) and its implementing regulations did not require that the final rating be effective the date of the claim. Rather, the law must be taken at its plain meaning, and the plain meaning of the requirement that the effective date be determined in accordance with facts found is that the disability rating must change to reflect the severity of the disability as shown by the facts from time to time. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2005). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 (2005). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2005). The Board recognizes that the Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995) held that, where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45. The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and/or impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board notes, however, that the Court has held that section 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board observes that the words "slight", "moderate", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2005). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (2005); 38 C.F.R. §§ 4.2, 4.6. Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. § 4.14 (2005); see Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban v. Brown, 6 Vet. App. at 262. During the pendency of the veteran's claim and appeal, the rating criteria for evaluating intervertebral disc syndrome were amended. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2005), effective September 23, 2002. See 67 Fed. Reg. 54,345-49 (Aug. 22, 2002). In 2003, further amendments were made for evaluating disabilities of the spine. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2005)). An omission was then corrected by reinserting two missing notes. See 69 Fed. Reg. 32,449 (June 10, 2004). The latter amendment and subsequent correction were made effective from September 26, 2003. Where a law or regulation (particularly those pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The effective date rule established by 38 U.S.C.A. § 5110(g) (West 2002), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. The veteran does get the benefit of having both the old regulation and the new regulation considered for the period before and after the change was made. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the pertinent amended regulations). Accordingly, the Board will review the disability rating under the old and new criteria. The RO evaluated the veteran's claim under the old regulations in making its rating decisions dated in November 1999 and September 2002. The December 1999, December 2002 and January 2003 SOCs evaluated the veteran's claim using the old regulations. In May 2004, the RO issued an SSOC that evaluated the veteran's claim using the new regulations effective from September 26, 2003. The veteran was afforded an opportunity to comment on the RO's action. Accordingly, there is no prejudice to the veteran in our proceeding under Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). The veteran's service-connected back disability was evaluated under Diagnostic Code (DC) 5003-5295. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2005). The hyphenated diagnostic code in this case indicates that degenerative arthritis under DC 5003 is the service-connected disorder, and impairment of the lumbosacral spine under DC 5295 is a residual condition. Under Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis), established by X-ray findings, is rated on the basis of the limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Normal range of motion of the cervical spine is flexion- extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees and rotation from 0 to 80 degrees. 38 C.F.R. §4.71a, Plate V (2005). Normal range of motion of the thoracolumbar spine is flexion- extension from 0 to 90 degrees and 0 to 30 degrees; lateral flexion from 0 to 30 degrees and rotation from 0 to 30 degrees. Id. Under the old regulations, effective prior to September 2003, under DC 5295, a 20 percent rating was warranted for lumbosacral strain where there was muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. 38 C.F.R. § 4.71a, Diagnostic Code 5295, effective prior to September 26, 2003. A 40 percent evaluation required severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. Id. Under DC 5292, limitation of motion in the lumbar spine was assigned a 40 percent rating when severe, a 20 percent rating when moderate, and a 10 percent rating when slight. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002), effective prior to September 26, 2003. Under the old regulations for Diagnostic Code 5293, in effect before September 23, 2002, a 20 percent evaluation was warranted for intervertebral disc syndrome if the disability was moderate with recurring attacks. 38 C.F.R. § 4.71a, Diagnostic Code 5293, effective prior to September 23, 2002. A 40 percent evaluation was assigned if it is severe with recurring attacks with intermittent relief. Id. An evaluation of 60 percent was warranted when the disability was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Id. Under the current rating criteria, that became effective on September 26, 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine. See 68 Fed. Reg. 51,454-51,458 (Aug. 27, 2003); 69 Fed. Reg. 32,449, 32,450) (June 10, 2004) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5343 (2005)). Under the revised criteria, lumbosacral or cervical strain is evaluated under DC 5237. Under the current regulations, a 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. Id. A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. These evaluations are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. (This clearly implies that the factors for consideration under the holding in DeLuca v. Brown, supra, are now contemplated in the rating assigned under the general rating formula.) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate diagnostic code. Id., Note (1). However, there is no showing that the veteran objectively manifested neurologic symptoms as a consequence of his service-connected lumbar spine disorder. Nor is there medical evidence of record to reflect that he had forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent evaluation under the regulations currently in effect. Ankylosis, whether favorable or unfavorable, involves fixation of the spine. Id. at 51,457, Note (5). Ankylosis has been defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dorland's Illustrated Medical Dictionary 86 (28th ed. 1994). Under the new regulations, effective September 26, 2003, DC 5289 provides that a 40 percent rating will be assigned for ankylosis of the lumbar spine at a favorable angle, and a 50 percent rating assigned for ankylosis at an unfavorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5289 (2005). Under the revised regulations, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under section 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. However, the total medical evidence of record is entirely negative for any reference to a current diagnosis of intervertebral disc syndrome. While Dr. C.J.N.'s May 2002 record diagnosed intervetebral disc disorder of the cervical and lumbar spines, in April 2004, a VA examiner found no intervetebral disc symptoms during the examination. More important, the February 2005 VA examination report expressly indicates that the veteran denied experiencing any incapacitating episodes associated with his service-connected lumbosacral spine disability. These evaluations are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. See DeLuca v. Brown, supra Upon review of the probative medical evidence of record, the Board has determined that an initial rating in excess of the currently assigned 20 percent evaluation is not warranted. After reviewing the new criteria and regulations found at 68 Fed. Reg. 51,454, the Board finds that the new rating criteria are less favorable than the old regulations at 38 C.F.R. § 4.71a (2002). Although the veteran's gait was abnormal, the evidence shows that this was not entirely due to his back disorder, but also evidently associated with other service-connected (knee) disabilities (July 2002 VA examination). Flexion of the lumbar spine was normal (in August 1999) and to 60 degrees (at the July 2002, April 2004 and February 2005 VA examinations), and combined limitation of motion was to 120 degrees, with consideration of pain as a mitigating factor (at the February 2005 VA examination). See DeLuca v. Brown, 8 Vet. App. at 204-7). The April 2004 VA examination also reflects that the veteran had no spinal deformity. Also, no scoliosis, reversed lordosis, or abnormal kyphosis has ever been manifested. Thus, not only would the veteran not be entitled to a 40 percent or higher rating under the new criteria (because ankylosis, or forward flexion limited to 30 degrees or less is never shown to have been manifested), he would not even be entitled to the 20 percent rating he now carries. Thus, rating the veteran's lumbosacral strain under new DC 5237 and the new "General Rating Formula for Diseases and Injuries of the Spine" is clearly less favorable than rating his disability under the old regulations at 38 C.F.R. § 4.71a (2002). VAOGCPREC 3- 2000. In this case then, the veteran's claim is to be evaluated under the regulations in effect prior to September 26, 2003. Lumbosacral strain was evaluated as 20 percent disabling when there was a disability picture consistent with: muscle spasm on extreme forward bending, a loss of lateral spine motion, unilateral, in the standing position. Lumbosacral strain that was severe was assigned a 40 percent rating. Severe strain contemplated listing of the whole spine to the opposite side, a positive Goldthwaite's sign, a marked limitation of forward bending in standing position, a loss of lateral motion with osteo-arthritic changes, or a narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). A 40 percent rating was also available for severe limitation of lumbar motion under Diagnostic Code 5292 (2002). However, even though it is facially easier to obtain a 40 percent rating under the criteria in effect prior to September 26, 2003, than it would if evaluated under the new criteria, the preponderance of the evidence still is against an initial rating higher than 20 percent for a lumbosacral strain disability. This is because severe limitation of motion is not shown by the objective medical evidence of record. Also, none of the criteria enumerated at Diagnostic Code 5295 as representative of a severe lumbosacral strain disability are shown, either. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The Board finds that the effects of pain reasonably shown to be due to the veteran's lumbosacral strain are contemplated in the currently assigned 20 percent rating. There is no indication that pain, due to disability of the lumbar spine, causes functional loss greater than that contemplated by the 20 percent evaluation now assigned. 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown. The Board notes that the veteran has argued that his service- connected disability would be more appropriately rated under DC 5293, for intervertebral disc syndrome, however, as set forth above, the evidence on file does not reflect disability or functional impairment to the extent to warrant a rating in excess of 20 percent under the old or current rating criteria for intervertebral disc syndrome. Dr. T.H.R.'s February 2005 written statement describes the veteran's disability as moderate in severity and is, thus, consistent with current Board evaluation. While in his July 2005 written statement, Dr. T.H.R. reiterated that the veteran had clinical findings consistent with lumbar and S1 radiculopathy, nothing in his statement described the veteran as having severe disability. Although Dr. C.N.B. opined that the veteran's back disability should be evaluated as 40 to 60 percent disabling, it is unclear to what code the physician referred. More important, Dr. C.N.B. did not examine the veteran and this opinion is, thus, accorded less weight that the VA examiners and other physicians who did examined the veteran and based medical opinions of current severity on clinical findings. The Board concludes that the objective medical evidence of record preponderates against a finding that the veteran's lumbosacral spine disability warrants a rating in excess of 20 percent. The Board does not find that the evidence is so evenly balanced that there should be doubt as to any material issue regarding the matter of a rating in excess of 20 percent for the service-connected lumbosacral strain. The preponderance of the evidence is clearly against the claim. 38 U.S.C.A. § 5107 (old and new version). Moreover, the Board finds that the evidence does not present such an exceptional or usual disability picture "as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2005). There has been no allegation or showing in the record on appeal that the appellant's service-connected lumbosacral strain has caused marked interference with employment or necessitated frequent periods of hospitalization. In the absence of such factors, the Board is not required to discuss the possible application of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally we note that, in view of the holding in Fenderson, supra, the Board has considered whether the veteran is entitled to a "staged" rating for his service-connected back disability, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time since the veteran filed his original claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board ORDER An initial rating in excess of 20 percent for lumbosacral strain is denied. REMAND The September 1999 rating decision granted service connection and noncompensable disability evaluations for the veteran's service-connected chondromalacia patellofemoral left and right knee pain. In July 2002, he underwent VA orthopedic examination. In a September 2002 rating decision, the RO awarded 10 percent disability evaluations for the right and left knee disabilities, effective from April 29, 2002. Thereafter, although the veteran underwent VA orthopedic examinations in April 2004 and February 2005, the clinical findings did not address the veteran's service-connected knee disabilities. Thus, the most current examination findings regarding the veteran's knees are more than three years old. The Board is of the opinion that in the interest of due process, a current VA examination is warranted to more accurately assess the current severity of the veteran's left and right knee chondromalacia patellofemoral knee pain. It is noted that one set of examinations for the knees was cancelled with a notation that the appeal had been withdrawn. There is no written withdrawal in the claims file before the Board. If appellant wants to withdraw an appeal as to this issue he should do so in writing. If the appeal is withdrawn, further development as requested below is not required. Additionally, a December 2002 SOC issued by the RO is the last communication to the veteran regarding the evidence considered as to his knee disabilities. However, additional VA and private medical evidence was subsequently added to the file, but it does not appear that the RO considered the additional evidence in the context of the veteran's claims for increased ratings of his knee disabilities, and neither the veteran nor his representative has been provided with an SSOC as to claims for increased ratings for the knee disabilities since December 2002. The Board regrets the further delay in the veteran's case; however, due process demands that this case be REMANDED to the RO for the following action: 1. The veteran should be afforded an appropriate VA orthopedic examination to determine the current severity of his service- connected left and right knee chondromalacia patellofemoral pain. All necessary tests and studies, to include X-rays and range of motion studies in degrees, should be conducted, and all clinical findings and manifestations of the service- connected disabilities should be reported in detail. (a) In reporting range of motion, the examiner should specifically identify any excursion of motion accompanied by pain. (b) The extent of any instability or subluxation should be noted. The physician is particularly requested to comment on whether the veteran's service- connected left and right knees require use of a brace and, if so, under what conditions it should be worn. (c) The extent of any incoordination, weakened movement, and/or excess fatigability on use should be described. (d) The physician should be requested to identify any objective evidence of pain and to assess the extent of any pain for both the left and right knees. (e) The functional impairment due to pain should be identified for both the left and right knees. (f) The physician should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. If this is not feasible, the physician should so state. (g) The physician is further requested to express an opinion as to (i) whether the conditions are permanent in nature and (ii) the degree of interference with the veteran's ability to obtain and maintain substantially gainful employment caused by each disability identified on examination. (h) The examiner should also state whether the veteran's disabling conditions are susceptible of improvement through appropriate treatment. A rationale for all opinions expressed should be provided. The claims folder should be made available to the examiner prior to examination, and the examination report should indicate whether the veteran's medical records were reviewed. 2. Thereafter, the RO should readjudicate the veteran's claims for increased initial evaluations for chondromalacia patellofemoral pain of the right and left knees, each currently evaluated as noncompensable for the period from July 16, 1999 to April 28, 2002, and as 10 percent disabling thereafter. If the benefits sought on appeal remain denied, the veteran and his representative should be provided with a SSOC. The SSOC should contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal since the December 2002 SOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs