Citation Nr: 0810201 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 02-22 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an increased rating for a herniated disc, status post L5-L6 left hemi-laminectomy and diskectomy, currently rated as 20 percent disabling. 3. Entitlement to an increased rating for a torn lateral meniscus of the right knee, postoperative, with internal derangement and pain secondary to osteoarthritis, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from May 1968 to December 1969. This matter came before the Board of Veterans' Appeals (the Board) on appeal from October 2000 and August 2002 rating decisions of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). In July 2003, the Board remanded this case for a hearing before a Veterans Law Judge. In April 2004, a videoconference hearing was conducted before the undersigned Veterans Law Judge. The appellant along with his wife provided sworn testimony. In December 2004, the Board remanded this case for additional development to include obtaining medical records associated with a Social Security Administration (SSA) disability award, and an orthopedic examination of the spine. The actions requested were completed: SSA records, duplicative of VA medical records, were associated with the claims folder and the appellant underwent a VA spine examination. The report of VA examination dated December 2006 provides the detailed information sought by the Board's December 2004 remand. The Board notes that the issues of service connection for post traumatic stress disorder and entitlement to individual unemployability are no longer before the Board because the RO granted these claims in a June 2007 rating decision. Also, the issue of an increased rating for right knee disability, currently rated as 20 percent disabling, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington D.C. FINDINGS OF FACT 1. Hypertension is not shown in service or within the initial post separation year; onset of hypertension many years after service has not been attributed to service or service-connected disability by reliable evidence. 2. Service-connected low back disability is currently manifested by complaints of low back pain radiating into the left leg, aggravated by repetitive movement, and flare-ups occurring 4 times a year lasting 4 to 5 days, with objective findings for limitation of motion, pain on range of motion testing, osteoarthritis, and degenerative disc disease of the lumbosacral spine. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; hypertension is not proximately due to service- connected disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2006). 2. The criteria for a 40 percent evaluation, but no higher, for herniated disc, status post L5-L6 left hemi-laminectomy and diskectomy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5285-5295 (as in effect prior to September 26, 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243 (as in effect September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice must be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability- rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The Board finds that the post-adjudicatory VCAA letter sent to the appellant in January 2004 essentially complies with statutory notice requirements as outlined above. With respect to all the issues on appeal, VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, VA notified the appellant that he should submit evidence in his possession or alternatively provide VA with sufficient information to allow VA to obtain the evidence on his behalf. Notice of the disability rating and effective date elements was provided in May 2006, also after the initial rating decision. The Board acknowledges that post adjudicatory notice is error and presumed prejudicial to the appellant unless VA can demonstrate otherwise. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board finds that there is no prejudice to the appellant in this timing error of the VCAA and Dingess/Hartman notice letters because the claims were subsequently readjudicated in June 2007 and VA sent the appellant a Supplemental Statement of the Case dated the same, and issued in September 2007, notifying him of the actions taken and evidence obtained or received. A timing error can be cured by statutory compliant VCAA notification followed by readjudication of the claim. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006). The Board is cognizant that the Dingess/Hartman notice letter was sent in conjunction with an award letter for diabetes mellitus and notice of deferred action on matters not before the Board. Notwithstanding, the May 2006 Dingess/Hartman notice was included as a separate document labeled "Attachment 3 Text" and the Board finds that it clearly pertains broadly to any and all claims involving disability rating and effective date elements. Furthermore, sworn testimony from the appellant's April 2004 hearing reflects actual knowledge of what was necessary to establish entitlement to the benefits sought. Essentially, the Board concludes that the appellant has not been deprived of information needed to substantiate his claims and the very purpose of the VCAA notice has not been frustrated by the timing error here or the inclusion of the Dingess/Hartman notice in VA mailings addressing other issues not before the Board. Also, the Board notes that, because the claim for service connection for hypertension is denied as discussed in the following decision, the benefit sought could not be awarded even had there been no timing defect; as such, the appellant is not prejudiced by a decision in this case. Additionally, the Board has considered the adequacy of the VCAA notice in light of the recent Court decision in Vazquez- Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The Boards finds that the VCAA notice is adequate as the Dingess/Hartman informs the appellant that, in evaluating claims for increase, VA looks at the nature and symptoms of the condition, severity and duration of the symptoms, and impact on employment. Furthermore, sworn testimony from the April 2004 videoconference hearing addressing these elements suggests actual knowledge of the criteria for increase. The actual schedular criteria were provided in an August 2002 statement of the case and a March 2004 supplemental statement of the case. The fundamental fairness of the adjudication process is not compromised here. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service medical records, VA and private treatment records, letters from the appellant's former employer and private physician, SSA records, and reports of VA examinations have been associated with the claims folders. Also, VA provided the appellant VA examinations to ascertain the severity of his service- connected disabilities, and VA provided the appellant a videoconference hearing before a Veterans Law Judge. We find that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the appellant could or should obtain was provided and no additional pertinent evidence was submitted. The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). To the extent that VA in any way has failed to fulfill any duty to notify and assist the appellant, the Board finds that error to be harmless. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2001) (The 'harmless error doctrine' is applicable when evaluating VA's compliance with the VCAA). II. Service Connection Initially, the Board notes that the appellant served during the Vietnam era. However, he did not engage in combat and he does not assert that hypertension was incurred due to combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Cardiovascular-renal disease, including hypertension, shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet.App. 439 (1995). When there is an approximate balance of positive and negative 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). In this case, the appellant argues that he has hypertension due to service-connected problems. More specifically, in February 2002, the appellant averred that hypertension was caused by chronic pain and depression from his service- connected back and right knee disabilities. He reiterated this argument in an October 2003 statement and reported that his private physician, Dr. L.Y., agreed with him. At an April 2004 videoconference hearing, the appellant argued that he developed hypertension because of post traumatic stress disorder. He noted that his blood pressure was okay before 1999. See Transcript at 33. In weighing the appellant's statements along with the private and VA medical evidence of record, the Board concludes that the preponderance of the evidence is against service connection for hypertension on both a direct and secondary basis. Hypertension is not shown in service or within the initial post separation year; and the onset of hypertension many years after service has not been attributed to service or service-connected disability by reliable evidence. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A review of the evidence shows, at service entrance examination in April 1968, blood pressure was 114/78. Service medical records are silent for findings of hypertension. Report of separation examination dated November 1969 reflects blood pressure was 106/76. The appellant denied any history of hypertension. Similarly, there are no complaints or findings for hypertension on the appellant's original VA compensation application dated April 1970, private hospital records dated March 1971, VA examination dated June 1971 (blood pressure of 112/79), VA hospital summary dated June 1973, and VA treatment notes dated April 1976, October 1980, and July to October 1985, except for a single elevated reading of 125/95 in July 1985. Hypertension is not shown in service or within the initial post separation year. Hypertension is first documented in VA treatment records dated April 1999. Subsequently dated VA and private medical records show hypertension and use of anti-hypertensive medications. Most recently, private hospital records dated January 2005 from Southern Hills Hospital were received showing admitting diagnoses that included hypertensive renal disease. An assessment noted hypertension. Statements and medical records from Dr. L.Y. are associated with the claims folder, but they do not address the etiology for hypertension. Similarly, the record contains voluminous psychiatric treatment notes, but these records do not address the etiology of hypertension. While the appellant argues that hypertension is caused by service-connected problems, i.e. chronic pain and PTSD, a careful review of the medical evidence fails to disclose any reliable supporting evidence for his theory. The appellant is not competent to provide a medical opinion as to the cause of his hypertension. Bostain v. West, 11 Vet.App. 12, 127 (1998), citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992); see also, Routen v. Brown, 10 Vet.App. 183, 196 (19997)("a layperson is generally not capable of opining on matters requiring medical knowledge."). Therefore, the Board finds that the appellant's unsupported lay assertions that service-connected disability caused the onset of hypertension have no probative value. Absent reliable evidence establishing a link between the hypertension and appellant's service-connected disability, secondary service connection, either by causation or aggravation, is not warranted. See 38 C.F.R. § 3.310(a); see also Allen, supra. Accordingly, the claim is denied. III. Claim for Increase Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, No. 05- 2424 (U.S. Vet. App. Nov. 19, 2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Factual Background A September 1981 rating decision established service connection for low back disability (herniated nucleus pulposus, L4-5, and post operative persistent radiculopathy and recurrent lumbosacral strain) under diagnostic code 5293. The record shows that the appellant injured his back when he fell down stairs because his service-connected right knee gave-way. He underwent back surgery in February 1981 (laminectomy of L4-5 and excision of L4-5 disc), and again in August 1985 (left hemilaminectomy of L5-6, diskectomy, scar tissue removal). VA outpatient treatment notes dated April 2000 reflect complaint of back pain aggravated by walking. There were no specific complaints, only pain not controlled with Tylenol #3. In May 2000, the appellant requested an increased evaluation for his back condition. In June 2000, private medical records October 1999 to June 2000 from Dr. L.Y. were received. These records reflect complaints of chronic back pain. In April 2000, it was noted that pain was under control on medication. In July 2000, a private examination was conducted for VA. The appellant complained of constant low back pain radiating down his left leg, and numbness in the lower extremities with sitting more than 15 minutes. He reported that his back pain is relieved only by sitting with feet elevated (not more than 15 minutes) or lying down. Range of motion was as follows: Flexion, 45 degrees active and 55 degrees passive; extension, 5 degrees active and 8 degrees passive; bilateral bending, 30 degrees active and 35 degrees passive; and bilateral turning, 25 degrees active and 30 degrees passive. Pain was noted during range of motion testing. Clinical findings were negative for spasms, weakness, postural abnormalities, fixed deformities, atrophy, and asymmetry. Motor strength was 5+/5+ bilaterally; sensory examination showed normal dermatomal pattern to pinprick and deep touch. Reflexes were 2+ bilaterally in the ankles and knees; plantar response was downward, bilaterally. Straight leg raising was mildly positive at approximately 85 degrees. The examiner estimated functional limitation to 15 percent due to pain, fatigue, weakness or lack of endurance following repetitive use or during flare-ups. X-ray showed moderate disc space narrowing at L4-5 level. Low back pain secondary to degenerative disc disease was diagnosed. An employer's August 2000 letter from the human resource coordinator to Dr. L.Y requested clarification of the appellant's limitations and Dr. L.Y. responded that the appellant was restricted from heavy lifting and standing for prolonged periods of time due to chronic back and right knee disability. A September 2000 letter from the appellant's employment shows he was given a work place accommodation. A June 2001 letter from Dr. L.Y reflects that he treated the appellant for the past few years for "chronic pain as a result of injuries sustained while on active duty in the Army" and that he was unemployable in part due to his back. In December 2001, VA outpatient treatment records dated April 2000 to November 2001 were received. These records show that the appellant reported in June 2001 chronic aching and throbbing back pain with occasional sharp pain down his leg, aggravated by standing and walking. The right knee was slightly swollen and tender to palpation. The appellant walked with a limp on the right. In August 2001, the appellant complained of constant back pain; he was noted to ambulate with the assistance of a cane. Another August 2001 note reflects a diagnosis for failed back syndrome; the appellant reported that he ran out of his narcotic and that pain, aggravated by weight bearing, had confined him to bed. A late August 2001 physical therapy note shows that the appellant used a cane to aid mobility; the appellant had full weight bearing, two point gait pattern, and could move independently. These records show that, in November 2001, the appellant requested by telephone an increased dosage of pain medication. The assessment was chronic pain syndrome. A letter dated December 2001 from Dr. L.Y. reflects that the appellant has chronic back pain. In an October 2003 statement, the appellant reported that he has had increased back pain that no longer responded to pain medications and that he was now unable to engage in recreational activities, such as, bowling and golfing. In January 2004, VA treatment records for the period November 2001 to January 2004 were received. These records show continued complaints of low back pain, treated with morphine, and use of a cane. December 2001 and September 2002 diagnoses include failed back syndrome, status post L4-5 fusion, and narcotic dependency. A March 2003 diagnosis included severe chronic pain syndrome of the back. In February 2004, a VA spine examination was conducted. The appellant complained of a dull ache and pain going down the left lower extremity, treated with morphine sulphate. He walked with a cane. The appellant reported that he could perform the activities of daily living, i.e. grooming, toileting, bathing. His wife performed driving activities. The appellant refused to perform range of motion testing due to pain. Objectively, the appellant had weakness and tenderness on palpation. There was no atrophy, ankylosis, or fixed deformity. Sensory examination appeared intact, except that reflexes could not be elicited. The Lasegue's sign on the left side was positive. Waddell sign was negative. Intervertebral disc syndrome at L4-5 and L5-S1, with evidence of sciatic nerve involvement on the left side was noted. X- ray showed lumbarization of S1 with degenerative changes at L5-S1. The diagnoses were status post discectomy L4-5, degenerative joint disease at L5-S1, and moderate to severe degenerative joint disease at facet L5-S1. In February 2004, VA electrodiagnostic testing showed no evidence of neuropathy, myopathy, or radiculopathy. At an April 2004 videoconference hearing, the appellant reported increased back symptomatology described as moderate to severe low back pain and shooting pain down the left leg, alleviated some by lying down and medication. See Transcript at 8. He noted using a cane and having been issued a back brace, or corsette, from VA. The appellant reported that he had not taken his morphine medication prior to the recent VA examination in February 2004 because he did not want to mask the symptoms. See Transcript at 12. In June 2005, VA treatment records for the period of November 2001 to June 2005 were received. A July 2004 VA x-ray study of the lumbosacral spine showed limited and abnormal lumbar spine with findings consistent for degenerative disc disease. In July 2005, private medical records from Red Rock Pahrump Medical Center were received. These records show an assessment for spinal stenosis in January 2004. In August 2005, private hospital records dated December 2003 from St. Rose Dominican Hospital were received. These records show diagnoses to include history of chronic back pain treated with morphine. In December 2006, a VA orthopedic examination was conducted. The appellant complained of constant "achiness and radiating [pain] to the leg." The intensity on average was 5 of 10, and symptoms were said to "wax and wane and increase in intensity." The appellant reported flare-ups 4 times a year lasting 4 to 5 days with pain measuring 10 of 10. During flare-ups, the appellant said that his physician tells him to "rest in bed." Associated symptoms were noted as weakness and numbness radiating to mainly the left leg, without bowel or bladder involvement. The appellant used a cane to ambulate and could walk about 3 blocks before needing a 30 to 60 minutes rest period. Functionally, the appellant was noted to drive unrestrictedly; his recreational activities were limited to the semi-sedentary level. The appellant reported that his back condition was aggravated by repetitive bending/lifting, prolonged standing, and carrying. He further reported problems dressing. The examiner noted that the appellant also had diabetic neuropathy affecting the sensation to the lower extremities. Objectively, the appellant walked with a limp, and he could not toe-and-heel walk due to both back and knee pain. On range of motion testing, there was 60 degrees of flexion, 20 degrees of extension, 30 degrees of bilateral flexion, and 30 degrees of bilateral rotation. There were complaints of pain and discomfort throughout the range of motion testing, and increased pain with repetitive motion, with a loss of 10 degrees of forward flexion after repetitive activity. Muscle spasm and guarding increased to a very mild degree during repetitive movement. There was localized tenderness, but no fixed deformity or postural abnormalities of any significance. Neurological examination revealed diminished sensory perception to light touch and glove-type hypoesthesia. Motor examination revealed no atrophy or leg length discrepancy; motor strength was +5 bilaterally. Achilles reflexes were diminished. Straight leg raises were negative bilaterally. The examiner commented as follows: [The] Veteran's "symptomatology indicates a radiculitis; however, there was no significant motor weakness or radiculopathy due to spinal impingement. Veteran states that he has been diagnosed has [sic] having a diabetic neuropathy affecting the sensory perception to the lower extremities." Status postoperative laminectomy on the lumbosacral spine superimposed on osteoarthritis, with residuals, was diagnosed. The examiner indicated that (1) repetitive movement of the thoracolumbar spine caused an additional 10 degree loss of flexion, (2) function was additionally impacted by pain following repetitive use, and (3) pain caused the major functional impact. Analysis The appellant's service-connected low back disability is rated as 20 percent disabling under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5293 (2002). Substantive changes were made twice to the portion of the Rating Schedule that addresses spine disease, including intervertebral disc syndrome, DC 5293. See 67 Fed. Reg. 54,345-349 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, DC 5293 (2003)). These changes became effective on September 23, 2002. See also 68 Fed. Reg. 51,454, 51,458 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5243). These changes became effective on September 26, 2003. Generally, in a claim for an increased rating, where the rating criteria are amended, the Board considers both the former and the current schedular criteria but, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the liberalizing change. See VAOPGCPREC 7- 2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. The Board notes that the appellant was provided notice of the revised regulations in the Board's December 2004 remand decision. Therefore, the Board may proceed with a decision on the merits of the claim, with consideration of the original and revised regulations, without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has considered entitlement to an increased evaluation under old DC 5293, effective prior to September 23, 2002, which rates intervertebral disc syndrome. Moderate recurring attacks of intervertebral disc syndrome warrant a 20 percent evaluation; severe recurring attacks with intermittent relief warrant a 40 percent evaluation. Pronounced intervertebral disc syndrome 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 diseased disc, little intermittent relief, warrants a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). In weighing the evidence of record, the Board concludes that the condition has not materially changed during the appeal period and that a uniform 40 percent evaluation for recurring attacks of severe intervertebral disc syndrome with intermittent relief is warranted. See Hart, supra. Service- connected low back disability is currently manifested by complaints of constant low back pain radiating into the left leg, aggravated by repetitive movement, and flare-ups occurring 4 times a year lasting 4 to 5 days, with objective findings for limitation of motion, pain on range of motion testing, osteoarthritis, and degenerative disc disease of the lumbosacral spine. In view of the above, the Board believes that the symptomatology more closely approximates the criteria for a 40 percent disability evaluation for severe intervertebral disc syndrome under Diagnostic Code 5293. However, the schedular criteria for a 60 percent evaluation for intervertebral disc syndrome are not met under the old rating schedule. The appellant complained of pain shooting down the left leg and reflexion could not be elicited on VA examination in February 2004. Sensory examination otherwise appeared intact, but the examiner noted evidence of sciatic nerve involvement. However, subsequent VA electrodiagnostic findings dated February 2004 showed no evidence of neuropathy, myopathy, or radiculopathy. Similarly, while the appellant reported radiculitis, sciatic-like symptoms, on VA examination in December 2006, no radiculopathy due to spinal impingement was found. The examiner noted that the appellant reported that his neurological symptoms of the lower extremities had been attributed to his diabetic neuropathy. Reflexes were diminished but apparently present. The February 2004 VA examination finding for sciatic nerve involvement has diminished probative value when considered in the context of the subsequent VA testing and medical examination of record. As such, in view of the VA electrodiagnostic findings dated February 2004 and the December 2006 finding for no radiculopathy, the Board finds that persistent symptoms compatible with sciatic neuropathy are not shown. Also, the evidence of record shows that, on VA's examination in July 2000, clinical findings were negative for muscle spasms, abnormal dermatomal patterns, and absent ankle reflexes bilaterally. Private and VA treatment records are similarly silent for demonstrable muscle spasm or absent ankle jerks or other neurological findings appropriate to the site of the diseased disc. On recent VA examination in December 2006, muscle spasm and guarding were noted to increase only very mildly during repetitive movement. Accordingly, in view of the above, the Board finds that the criteria for a 60 percent evaluation based on pronounced intervertebral disc syndrome is not warranted. Similarly, the criteria for a 60 percent evaluation based on the new rating formula for intervertebral disc syndrome are not met as reliable evidence has not been presented showing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.). Here, the appellant reported, on the December 2006 VA examination, that his symptoms waxed and waned, and that he had flare-ups 4 times a year for a period of 4 to 5 days. Neither the appellant's statements nor the treatment reports of record support the frequency required for a 60 percent evaluation. Additionally, although the appellant reports that he was told by his physician to "rest in bed," the objective medical records contain no documentary showing of bed rest prescribed by a physician or treatment by a physician for episodes having a total duration of at least 6 weeks during a 12 month period. The criteria in effect from September 2002 to September 2003 also provided for orthopedic and neurological manifestations to be rated separately. DC 5292 provided a maximum 40 percent rating for severe limitation of motion of the lumbar spine, and DC 5295 provided a maximum 40 percent rating for severe lumbosacral strain. Thus, an increased rating could by assigned only if neurological manifestations warrant a separate compensable rating. 38 C.F.R. § 4.124a, DC 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve and a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. Here, examinations have not shown any significant motor or strength impairment or muscle atrophy. Ankle reflexes are diminished; electrodiagnostic studies in February 2004 showed no radiculopathy, and the examiner in December 2006 indicated no significant radiculopathy. Consequently, the Board concludes that a compensable rating based on neurological manifestations due to the veteran's service-connected back disability is not warranted. With regard to the criteria in effect after September 2003, the criteria for a higher rating based on incapacitating episodes remained the same, and, as explained above, an increase based on such criteria is not warranted. A rating of 40 percent under the general formula for rating diseases and injuries of the spine, DCs 5235 to 5243, contemplates forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The next higher rating of 50 percent is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Clearly, ankylosis, or immobility, of the spine is not shown here, and there is no basis for the assignment of a higher rating. As explained above, a separate rating based on objective neurological abnormalities is also not warranted. See 38 C.F.R. § 4.71a, Note (1) (2007). The Board has considered all other applicable diagnostic codes in effect prior to September 23, 2002, to determine whether a higher disability evaluation is warranted for any period. However, the appellant was never diagnosed with fracture of the vertebra, nor does the medical evidence show he had ankylosis of any portion of his spine. Therefore, 38 C.F.R. § 4.71a, DCs 5285-5289 (2002) are not for application. Diagnostic Codes 5292 and 5295 provide a maximum 40 percent disability evaluation for based on severe limitation of motion and severe lumbosacral strain, respectively. Therefore, as an increase above the 40 percent disability level is not available under these codes, a discussion of the criteria is not warranted. Functional Impairment Due to Pain. A review of the evidence shows additional limitation of function due to pain. The appellant's range of flexion was between 45 and 55 degrees, and extension was between 5 and 8 degrees, on VA examination in July 2000. The examiner stated that there was functional limitation to 15 percent due to pain, fatigue, weakness, or lack or endurance following repetitive use or during flare-ups. The appellant's private physician, Dr. L.Y., reported in June and December 2001 that he treated the appellant for chronic back pain and VA treatment records reflect complaints of chronic pain with multiple assessments for chronic pain syndrome. The appellant refused to perform range of motion testing in February 2004 due to pain, but weakness was noted. Range of motion testing on VA examination in August 2005 showed 60 degrees of flexion and 30 degrees of motion in all other planes. There were complaints of pain and discomfort throughout the range of motion testing. The examiner noted that there was a 10 degree loss of flexion with repetitive activity with mildly increased muscle spasm and guarding. Other medical records and the appellant's sworn testimony reflect that the range of motion is affected by pain. Additionally, medical records show that, in October 2003, the appellant reported he could no longer engage in recreational activities. Statements from the appellant and these records further show that the appellant walked with the aid of cane and took morphine for pain relief. The Board has considered the appellant's functional loss due to pain on motion, under the provisions of 38 C.F.R. §§ 4.40, 4.45 for all rating codes potentially applicable to the appellant's disability. DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Here, the Board finds that the effects of pain reasonably shown to be due to the service-connected low back disability are contemplated in the 40 percent rating awarded at this time. There is no indication that pain or any other impairment, due to disability of the spine, has caused functional loss greater than that contemplated by the 40 percent evaluation assigned; any additional functional impairment is not tantamount to, nor does it more nearly reflect, ankylosis of the spine. 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown, supra. ORDER Service connection for hypertension is denied. A 40 percent evaluation for a herniated disc, status post L5- L6 left hemi-laminectomy and diskectomy, is granted subject to the laws and regulation governing the award of monetary benefits. REMAND The appellant seeks an increased evaluation for a torn lateral meniscus of the right knee, postoperative, with internal derangement and pain secondary to osteoarthritis. At his December 2006 VA examination for the spine, the appellant reported that he had a total knee arthroplasty in October 2006. The medical records associated with this surgery and since December 2005 are not associated with the claims folders. VA's duty to assist obligations requires that VA obtain and/or request all VA and private medical records pertaining to the right knee disability. Additionally, the Board notes that the June 2007 Supplemental Statement of the Case shows that the appellant's right knee disability was evaluated as 20 percent disabling, as indicated on the title page of this decision; but a June 2007 rating sheet shows that a temporary total rating (100 percent) was awarded from October 5, 2006 and that a 30 percent evaluation was assigned from December 1, 2007. Neither a rating decision nor a Supplemental Statement of the Case shows that an increase to 30 percent evaluation was awarded for right knee disability. The RO should clarify this matter for the record. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all VA treatment records dated from December 2005, including all records associated with right knee replacement surgery; the RO should also request that the appellant indicate whether he obtained any private medical care for the right knee since December 2005. If yes, these records should be requested after procuring the necessary release. 2. The RO should clarify for the record whether an increased evaluation for right knee disability was awarded by the RO and associate with the claims folder all appropriate rating decisions if an increased evaluation was in fact awarded. 3 After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2007). ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs