Citation Nr: 0810747 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-20 003 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for the service-connected systemic lupus erythematosus (SLE) with anemia, thrombocytopenia, polyarthralgias and leucopenia. 2. Entitlement to a compensable evaluation for the service- connected right foot tarsal tunnel syndrome. 3. Entitlement to an evaluation in excess of 10 percent for the service-connected low back strain. 4. Entitlement to an evaluation in excess of 10 percent for the service-connected right knee, status post arthroscopy. 5. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from May 1977 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 RO rating decision. The veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in September 2005. In November 2005, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, DC. The issue of entitlement to a TDIU rating is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will advise the veteran when further action is required on her part. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. The service-connected SLE is shown to be manifested by exacerbations lasting a week or more, two or three times per year. 3. The service-connected right foot tarsal tunnel syndrome is shown to be manifested by mild incomplete paralysis of the anterior tibial/deep peroneal nerve. 4. The service-connected low back strain is shown to be manifested by normal range of motion, but with pain. 5. The service-connected right knee disability is shown to be manifested by normal range of motion with pain, but no separately ratable instability of a compensable degree. CONCLUSIONS OF LAW 1. The criteria for the assignment of an evaluation of 60 percent, but not more, for the service-connected systemic lupus erythematosus are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.88b including Diagnostic Code 6350 (2007). 2. The criteria for the assignment of a compensable evaluation for the service-connected right foot tarsal tunnel syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.124a including Diagnostic Code 8523 (2007). 3. The criteria for the assignment of a rating in excess of 10 percent for the service-connected lumbosacral strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.25, 4.40, 4.45, 4.71, 4.71a including Diagnostic Codes 5292, 5293, 5295 (2000-2004); General Rating Formula for Diseases and Injuries of the Spine (as in effect since September 26, 2003). 4. The criteria for the assignment of a rating in excess of 10 percent for the service-connected right knee status post arthroscopy are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.25, 4.40, 4.45, 4.71 including Diagnostic Codes 5256 to 5263 (2007) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims herein decided has been accomplished. In March 2003, the RO sent the veteran a letter advising her that to establish entitlement to a higher rating for a service-connected disability the evidence must show that the condition had become worse. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support her claim for increased rating and was afforded ample opportunity to submit such information and evidence prior to the rating decision in September 2003. The Board also finds that an RO letter in July 2003, prior to the rating decision, satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The July 2003 letter advised the veteran that VA is responsible for getting relevant records in the custody of any Federal department or agency, including service records, VA treatment records, and records from other Federal agencies such as Social Security Administration (SSA) records. The letter also stated that VA would make reasonable efforts to get evidence on the veteran's behalf from non-Federal entities if provided authorization to do so. In November 2005, during the course of the appeal, the AMC sent the veteran a letter specifically asking her, "Please submit any pertinent evidence in your possession." The veteran had ample opportunity to respond prior to issuance of the Supplemental Statement of the Case (SSOC) in August 2007. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained, all four content-of-notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that any arguable lack of full pre- adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any arguable delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that her claim was fully developed before the case was readjudicated as reflected in the SSOC. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and the veteran has been afforded ample opportunity to submit such information and/or evidence. Neither in response to the letter cited hereinabove nor at any other point during the pendency of this appeal has the veteran or her representative informed the RO of the existence of any evidence-in addition to that noted below-that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that, in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria. The RO notified the veteran of all applicable rating formulae in the March 2004 SOC and in the August 2007 SSOC, which suffices for Dingess. Dingess also held that VA notice must include information regarding the effective date that may be assigned. This was not accomplished. However, the Board's action herein (granting an increased rating for the service-connected SLE and continuing the current ratings for the service-connected right foot tarsal tunnel syndrome, right knee disorder, and low back strain) does not revise any currently-assigned effective dates or assign any new effective dates. There is accordingly no chance of prejudice under the notice requirements of Dingess. In the recent case of Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008) the Court stated that adequate notice in a rating claim requires all four of the following questions be answered in the affirmative. (1) Do the notice letters inform the claimant that to substantiate the claim he or she must provide, or ask VA to obtain, medical or lay evidence showing a worsening or increase in severity and the effect that worsening has had in his or her employment and daily life? (2) Is the claimant rated under a diagnostic code (DC) that contains the criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has had on the claimant's and daily life (such as a specific measurement or test result)? If so, do the notice letters provide at least general notice of that requirement? (3) Do the notice letters advise the claimant that if an increase in disability is found, a disability rating will be determined by applying relevant DCs, which typically provide a range in severity from 0 percent to 100 percent (depending on the disability involved), based on the nature of the symptoms for which disability compensation is being sought, their severity and duration, and their impact on employment and daily life? (4) Do the notice letters provide examples of the types of medical and lay evidence the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased rating - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability? If the answer to any of the four elements listed above is negative, absence of prejudice to the veteran may be shown by any of the following: (1) the claimant had actual knowledge of what was necessary to substantiate the claim; (2) a reasonable person could be expected to understand from the notice what was necessary to substantiate the claim; (3) the benefit claimed is precluded as a matter of law. In this case, the veteran's arguments, as articulated in her correspondence to VA and in her testimony before the Board, have stressed the impact of her service-connected disabilities on her overall health and employability, and she has submitted medical and lay evidence appropriate to those arguments. The Board accordingly finds that the veteran has demonstrated actual knowledge of the requirements for higher rating as articulated in Vazquez-Flores. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claims decided hereinbelow. The veteran's service treatment record (STR) and post-service VA medical records are on file. The veteran has not identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having additional records that should be obtained before the claim is adjudicated. The veteran was afforded several VA medical examinations since her claim for higher rating, most recently in November 2006 (SLE) and April 2006 (orthopedic).. The veteran has not asserted, and the evidence does not show, that her symptoms have become worse since those examinations. The Board accordingly finds that remand for new examination is not required at this point. See Glover v. West, 185 F.3d 1328, 1332 (Fed. Cir. 1999) (VCAA does not require a VA medical examination unless the medical evidence of record is not adequate or sufficient for the appropriate legal action or unless there has been a material change in the disability). The veteran was afforded a hearing before the Board in September 2005, during which she presented oral testimony and argument in support of her claim. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims herein decided. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The assignment of a particular Diagnostic Code (DC) is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). In reviewing a claim for higher rating, VA must consider which DC or DCs are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes at this point that the U.S. Court of Appeals for Veterans Claims (Court) recently held that in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered all evidence of severity since the claim for increased was filed in February 2003. The Board's adjudication of this claim therefore satisfies the requirements of Hart. Evaluation of SLE The veteran's SLE is evaluated under the provisions of 38 C.F.R. § 4.88b (schedule of ratings - infectious diseases, immune disorders and nutritional deficiencies). SLE is rated either under Diagnostic Code (DC) 6350 (disseminated SLE) or by combining the evaluations for residuals under the appropriate system, whichever results in the higher rating. Under DC 6350, a rating of 10 percent is assignable for exacerbations once or twice per year, or symptomatic during the past two years. A rating of 60 percent is assignable for exacerbations lasting a week or more, two or three times per year. A rating of 100 percent is assignable for acute symptoms with frequent exacerbations, producing severe impairment of health. However, the RO rated the veteran by analogy under the criteria for DC 5002 (rheumatoid arthritis), based on the RO's determination that those criteria more closely approximated the actual symptoms and also were more advantageous to the veteran. The rating criteria for DC 5002 are as follows: A rating of 10 percent is assignable with one or two exacerbations per year in a well-established diagnosis. A rating of 40 percent is assignable with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times per year. A rating of 60 percent is assignable for symptoms less than the criteria for 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times per year or a lesser number over prolonged periods. A rating of 100 percent is assignable with constitutional manifestations associated with active joint involvement, fully incapacitating. A VA rheumatology clinic outpatient treatment note by a physician dated in February 2003 states that the veteran currently complained of occasional joint pains, mainly in the knees, as well as needing sunscreen for photosensitivity. The clinician noted that the veteran was pending reevaluation for a disability level higher than 40 percent, and stated that "[f]rom the information available raising the level to 100 percent would be reasonable in this case." The veteran had a VA dual energy bone densitometry report (DEXA) in March 2003 in which the diagnosis (bone) was SLE. The interpreter's evaluation was that the veteran did not meet the criteria for osteopenia/osteoporosis at the vertebral and femoral neck sites and had no increased relative fracture risk when compared with mean peak bone mass of those areas. The veteran had a VA dental/oral examination in March 2003 during which the examiner identified temporomandibular subluxation secondary to lupus. The condition was manifested by muscle laxity and bilateral popping. There was very little spasm, no retrodiscal pain, and normal opening with excursive movements. The veteran had a VA hemic disorders examination in April 2003. The examiner noted history of SLE since January 1996, manifested at the time by fever, nausea, anemia, mouth ulcers and rash. The veteran reported current headaches twice per month, no history of generalized infections, and no transfusions. The veteran reported some intermittent dyspnea that appeared to be related to her asthma, and one syncopal episode possibly related to her medications. She also reported becoming fatigue with lightheadedness three to four times per month. The examination was grossly normal. Laboratory diagnostics were grossly normal. The examiner's impression was that of SLE with mild anemia and leucopenia. The veteran testified in September 2005 that the primary effect of her SLE was overall day-to-day joint pain and stiffness. It was difficult for the veteran to begin moving in the morning, although medications helped her somewhat to function through the day. A side effect of the medications was drowsiness. SLE was also manifested by light fevers and difficulty sleeping, anemia, fatigue, sensitivity to cold and fatigability. SLE also caused photosensitivity, not just to sunlight but also to fluorescent light; exposure to light causes flare-up of SLE symptoms to the degree that the veteran had to do her daily chores in the dark. The veteran testified that the flare-ups of SLE could last for days or weeks, during which her ability to function was minimal. Flare-ups happened at least once per month. The veteran had last worked, on a seasonal basis, in April 2004, but had to stop due to SLE flare-ups. She also had been enrolled in VA vocational rehabilitation but was dismissed from that program as being medically unemployable. The veteran had a VA medical examination in March 2006 for the specific purpose of evaluating the severity of her SLE. The examiner reviewed the claims file and noted the documented history of the disorder. The veteran reported a history of sweats, fevers, migratory joint pains (legs, hands, arms, elbows and shoulders) and rashes over much of her body, becoming worse with sun exposure. She also reported frequent infections including sinusitis and colds which would lead to bronchitis. She reported having current joint pains, decreased appetite, fatigue and several new rashes. She also reported a recent kidney infection and spasm-type low back pain radiating into the right hip and leg. On examination, the veteran's neck, lungs, heart, abdomen and lymph nodes were unremarkable. The skin had hyperpigmented macular areas on the right axilla and the lower legs bilaterally. There was limited range of motion of the upper extremities and fatigue with repetitive motion of the shoulders, bilaterally; otherwise, there was full range of motion with some stiffness in upper and lower extremities and the spine. Clinical and laboratory diagnostics were performed. The examiner diagnosed SLE and stated an opinion that it was at least as likely as not that the debilitating effects of the SLE, as related to polyarthralgia and leucopenia, were significant enough to cause infrequent, mildly severe, short- term duration of exacerbations. The examiner explained that the anemia and leucopenia were very mild and not significant enough to cause significant debilitating effects, and the thrombocytopenia was currently nonexistent. The polyarthralgia was sufficient to cause frequent, mildly severe, short-term periods of exacerbation. The medications would not cause debilitating effects. On review of the medical and lay evidence, the Board finds that the service-connected disability picture more nearly approximates the criteria for a rating of 60 percent under DC 6350 (exacerbations lasting a week or more, two or three times per year). However, the medical and lay evidence does not show that the veteran's symptoms meet the criteria for a 100 percent rating under DC 6350 (acute symptoms with frequent exacerbations, producing severe impairment of health). The Board particularly notes that the VA examiner cited both "frequent" and "infrequent" mildly severe exacerbations; resolving the ambiguity in the veteran's favor, the veteran is shown to have had "frequent" exacerbations. However, the examiner's categorization of the exacerbations as "mildly severe" and "short-term" indicates that the exacerbations did not produce a severe impairment of health. Accordingly, even giving full credence to the veteran's testimony and other lay evidence of record, the totality of the evidence does not show that SLE symptoms cause severe impairment of health commensurate with a 100 percent rating. Similarly, the veteran is not shown to meet the criteria for a 100 percent rating under DC 5002 (constitutional manifestations associated with active joint involvement, fully incapacitating). While the veteran has shown medical and lay evidence that her joint symptoms attributable to SLE are mildly severe, there is no evidence that those symptoms are fully incapacitating to warrant a 100 percent rating under this DC. The Board has carefully considered the VA rheumatology clinic outpatient treatment note by a physician dated in February 2003 stating that "[f]rom the information available raising the level to 100 percent would be reasonable in this case." The Board views this clinical note as medical evidence generally supporting a rating higher than the current 40 percent. However, the VA clinician in this case did not identify any specific clinical rationale for the statement, so it is not possible to associate that opinion with any specific DC to determine if the schedular criteria for a 100 percent rating are actually met. The Board accordingly finds that the criteria for a rating of 60 percent, but not more, for SLE are met. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this matter, the evidence shows that the veteran's symptoms more closely approximate the criteria for the higher rating, and the benefit-of-the-doubt rule applies. Gilbert, id; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Evaluation right foot tarsal tunnel syndrome The service-connected tarsal tunnel syndrome is rated under the provisions of 38 C.F.R. § 4.124a (schedule of ratings - neurological conditions), DC 8523 (paralysis of the anterior tibial/deep peroneal nerve). Under DC 8523, a rating of no percent is assignable for mild paralysis. A rating of 10 percent is assignable for moderate incomplete paralysis, and a rating of 20 percent is assignable for severe incomplete paralysis. A rating of 30 percent is assignable for complete paralysis (eversion of the foot weakened). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with the nerve; when the involvement is wholly sensory the rating should be for the "mild" or at most the "moderate" degree. The veteran had a VA joints examination in March 2003 during which she complained of burning-type foot pain, which she stated had been previously identified by electromyography (EMG) study as tarsal tunnel syndrome. The examination showed pain with medial and lateral squeeze to the heel but was otherwise normal. The examiner's impression was that of right foot with EMG-diagnosed tarsal tunnel syndrome but without clinical physical examination to support such diagnosis. The veteran had a VA neurological examination in April 2003 and complained of pain in the soles of both feet when walking and/or prolonged standing; she stated that she had been told the pain was due to tarsal tunnel syndrome. During examination, the veteran had no problem walking on her feet, heels or toes; motor strength, deep tendon reflexes, and sensation were all within normal limits. The examiner ordered a nerve conduction velocity study to evaluate the situation with the plantar nerves of the veteran's feet. The veteran subsequently had a VA EMG nerve conduction velocity study of the peroneal and sural nerves in April 2003. The interpreter assessed the study as normal. The veteran had a VA orthopedic examination in April 2006 when she complained of burning sensations in both feet, right more than left; she also reported lateral-sided heel pain and sensation of numbness. On neurological examination, the veteran was able to stand on her toes and on her heels. She was observed to walk with a nonantalgic, reciprocal, heel-toe gait. The veteran had a negative straight-leg raise sign and no gross motor deficits. She had a stocking-pattern sensory neuropathy bilaterally, but right side more than the left, extending above the ankle. There was no tenderness in the medial heel or the tarsal tunnel. The veteran had a normal-appearing arch, and 5/5 muscle function. There was tenderness to palpation along the peroneal musculature laterally, and pain with inversion and eversion of the subtalar joint. However, subtalar motion was full, and the ankle had full range of motion; repetitive testing did not affect range of motion. The X-ray studies showed no abnormalities. EMG showed mild asymmetric sensory neuropathy in both lower extremities. The examiner diagnosed bilateral sensory neuropathy, peroneal tendon tendonitis, and mild subtalar arthrosis. Based on the evidence, the Board finds that the veteran has shown evidence of a neuropathy resulting in numbness and pain. This equates to a "mild incomplete paralysis" meeting the schedular criteria for the current noncompensable rating. The veteran's symptoms are entirely subjective; there is no medical or lay evidence of any functional disability of the foot whatsoever. There is accordingly no evidence of "moderate" incomplete paralysis as required for the 20 percent rating. The Board is precluded from differentiating between the symptomology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1988) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In this case, the veteran's neuropathy is bilateral, and is therefore not entirely attributable to the service-connected tarsal tunnel syndrome of the right foot. However, even giving full deference to Mittleider, there is no evidence that the right foot disability presents a "moderate" incomplete paralysis as required for the higher rating. The Board accordingly finds that the criteria for a compensable rating for the service-connected right foot tarsal tunnel syndrome are not met. Therefore, the claim must be denied. Evaluation of low back strain The rating criteria for this disability changed effective September 26, 2003 during the course of the appeal. Where a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies, unless Congress provided otherwise or permitted VA to do otherwise, and VA does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); VAOPGCREC 11-97 (Mar. 24, 1997). However, revised statutory or regulatory provisions may not be applied to any time period prior to the effective date of the change. 38 U.S.C.A. § 7104(c) (West 2002); VAOPGCPREC 3-2000 (April 10, 2000); Rhodan v. West, 12 Vet. App. 55, 57 (1998). As there is no indication that the revised criteria are intended to have a retroactive effect, the Board has the duty to adjudicate the claim only under the former criteria for any period prior to the effective dates of the new diagnostic codes, and to consider the revised criteria for the period beginning on the effective dates of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSouza v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3- 2000 (2000) and 7-2003 (2003). The Board accordingly applies the old rating criteria to the veteran's symptoms prior to September 26, 2003, and the new rating criteria to the veteran's symptoms thereafter. Until September 26, 2003, the lumbosacral spine could be rated under the provisions of DC 5295 (lumbosacral strain) or alternatively under the provisions of DC 5292 (limitation of motion). Intervertebral disc syndrome (IVDS) was rated under the provisions of DC 5293. The schedular criteria of DC 5292 (limitation of motion) are as follows. A rating of 10 percent is assigned for slight limitation of motion. A rating of 20 percent is assigned for moderate limitation of motion. A rating of 40 percent is assigned for severe limitation of motion. The terms "slight," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. (The Board notes that, under VA rating criteria, the normal range of motion of the thoracolumbar spine is flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. 38 C.F.R. § 4.71a, Plate V.) The schedular criteria for DC 5293 (IVDS) are as follows. A rating of 10 percent is assigned for mild IVDS. A rating of 20 percent is assigned for moderate IVDS with recurring attacks. A rating of 40 percent is assigned for severe IVDS, with recurring attacks and intermittent relief. A rating of 60 percent is assigned for pronounced IVDS 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. The schedular criteria of DC 5295 (lumbosacral strain) are as follows. A rating of 10 percent is assigned for characteristic pain on motion. A rating of 20 percent is assigned for muscle spasm on extreme forward bending, or loss of lateral spine motion, unilateral, in standing position. A rating of 40 percent is assigned for severe symptoms, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or some of the above with abnormal mobility on forced motion. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher disability rating when functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). A VA urgent care note dated in February 2003 shows the veteran presented with complaint of chronic back pain with recent acute exacerbation with radiation to the left side. On examination, the back was mildly tender over the lower central spine and paraspinal; the clinical impression was back pain controlled with medication. The veteran had a VA joints examination in March 2003 when she complained of intermittent back pain, worse with flare- ups, without radiation although with occasional pain in the right buttock. On examination, the lumbar spine range of motion was forward flexion to 90 degrees, extension to 30 degrees, and lateral side bending to 30 degrees bilaterally. An X-ray study of the lumbar spine noted that L5 appeared to be a transitional vertebra, and L5-S1 were somewhat narrowed, but the X-ray study was otherwise unremarkable. The examiner's impression was that of mechanical low back pain without evidence of radiculopathy or degenerative arthritis. The veteran had a VA neurological examination in April 2003 during which she complained of low back pain since 1994. She reported the pain as intermittent, with ups and downs, and tending to radiate to the right hip and then to the right lower extremity. The examiner's impression was that of DJD of the lumbar spine; the examiner ordered a computed tomography (CT) scan. Subsequent VA CT scan of the lumbar spine in April 2003 showed moderate disc bulge and hypertrophy at L4-5. There was no significant disc bulge or foraminal narrowing in L3-4 or L5-S1. Based on the evidence, the Board finds that the criteria for a rating in excess of 10 percent are not met under the rating criteria in effect prior to September 2003. The veteran's range of motion of the spine was normal on examination, so there is no compensable disability under DC 5292. There is no evidence of IVDS to any degree during the period, so there is no compensable disability under DC 5293. The veteran's subjective report of characteristic pain on motion meet the criteria for a rating of 10 percent under DC 5295, but the criteria for a higher rating under that DC are not shown in that the veteran did not show muscle spasm on extreme forward bending, or unilateral loss of lateral spine motion in the standing position. Where medical evidence shows claimant has arthritis, and where the diagnostic code applicable to the disability is not based on limitation of motion, a separate rating may be assigned if there is additional disability due to limitation of motion. VAOPGCPREC 23-97 (July 1, 1997); see also Hicks v. West, 8 Vet. App. 417 (1995). However, as seen above, there is no compensable limitation of motion. Also, painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In this case the veteran has a 10 percent rating under DC 5295, and the requirement of Lichtenfe ls is satisfied. Effective on September 26, 2003, disabilities of the spine are rated under a General Rating Formula for Diseases and Injuries of the Spine, with rating criteria applicable to the lumbar spine as follows. A rating of 10 percent is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined 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. A rating of 40 percent is assigned for favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is assigned for unfavorable ankylosis of the entire spine (cervical plus thoracolumbar). These criteria are applied with and 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; associated objective neurologic symptoms are rated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a. IVDS is evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation. The veteran is not shown to have had any incapacitating episodes of IVDS of the lumbar spine (defined as a period of acute signs and syndromes due to IVDS that requires bed rest prescribed by a physician and treatment by a physician), so the Formula for Rating IVDS Based on Incapacitating Episodes is not for application. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes, and must consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnson v. Brown, 9 Vet. App. 7 (1996). The veteran testified in September 2005 that her back might "go out" without warning at any time; when that happens the veteran was unable to move without assistance. Also, the veteran had excruciating back pain that radiated down the legs. The veteran took medication for the back pain, but it made her drowsy, which in turn inhibited driving and other daily activities. The veteran had a VA orthopedic examination in April 2006 and complained of pain radiating to the right hip and thigh and across the lower lumbar spine. On examination the veteran was able to flex to approximately 80 degrees but was unable to go further due to pain; the other ranges of motion were within normal limits; repetitive testing did not affect range of motion. The X-ray studies revealed sacralization of the sixth vertebra, but otherwise the disc spaces were well maintained. CT scan showed some disc bulging at the L4-5 level, hypertrophy, and stenosis of the spinal canal. The examiner diagnosed L4-5 spinal stenosis. A review of the evidence shows that the veteran's range of flexion was to 80 degrees, which is compatible with the current 10 percent rating (flexion greater than 60 degrees but not greater than 85 degrees). The criteria for the higher 20 percent rating based on range of motion flexion (flexion greater than 30 degrees but not greater than 60 degrees, or combined motion of the thoracolumbar spine not greater than 120 degrees) are not met. Similarly, the alternative criteria for a 20 percent rating under the General Rating Formula (muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis) are not shown. The Board has carefully considered the veteran's account of low back pain. However, the General Rating Formula is 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 the residuals of injury or disease. Further, the veteran was able to flex to 80 degrees despite the presence of pain, so a schedular rating higher than 10 percent is not warranted under the General Rating Formula. The Board accordingly finds that the criteria for rating in excess of 10 percent for the veteran's service-connected lumbar spine disorder are not met. Therefore, the claim must be denied. Evaluation of right knee status post arthroscopy Disabilities of the knee are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5256 to 5263. A claimant can have separate ratings for limitation of extension and limitation of flexion. See VAOPGCPREC 9-2004. Also, a claimant can have separate ratings for limitation of motion under DC 5260 (limitation of flexion) and/or 5261 (limitation of extension), and for recurrent subluxation or lateral instability under DC 5257. The rating criteria for limitation of motion under DC 5260 and 5261 are as follows: A rating of 10 percent may be assigned for flexion limited to 45 degrees and for extension limited to 10 degrees. A rating of 20 percent may be assigned for flexion limited to 30 degrees and for extension limited to 15 degrees. A rating of 30 percent may be assigned for flexion limited to 15 degrees and for extension limited to 20 degrees. A rating of 40 percent may be assigned for extension limited to 30 degrees. A rating of 50 percent may be assigned for extension limited to 45 degrees. The Board notes that under the VA rating schedule normal range of motion of the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II. The rating criteria for recurrent subluxation or lateral instability under DC 5257 are as follows. A rating of 10 percent may be assigned for "slight" disability. A rating of 20 percent may be assigned for "moderate" disability. A rating of 30 percent may be assigned for "severe" disability. The terms "slight,""moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Finally, as noted, when evaluating musculoskeletal disabilities VA may, in addition to applying schedular criteria, consider granting a higher disability rating when functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59. See also DeLuca, 8 Vet. App. 202; Johnson, 9 Vet. App. 7. The veteran had a VA clinical examination in March 2002 in which she was noted as having full range of motion of all joints, although with marked crepitus with active motion of the right knee. The clinician assessed degenerative joint disease (DJD) of the right knee. The veteran had a VA X-ray study of the right knee in August 2002 that showed a small amount of degenerative change and also patellar spurring; the joint spaces were well preserved. A VA urgent care note dated in February 2003 shows the veteran presented with complaint of chronic knee pain. Examination revealed some crepitus, bilaterally. The clinical impression was that of knee pain controlled with medication. The veteran had a VA joints examination in March 2003 in which she complained of right knee pain, clicking, instability (occasional giving way), and difficulty going up and down stairs. On examination, the right knee showed positive medial joint line tenderness, mild patellofemoral crepitation, and no apprehension. Range of motion was 0 degrees to 130 degrees, stable in all planes with no effusion noted. The X-ray studies showed mild degenerative changes in the patellofemoral joint compartment and medial joint compartment, as well as suprapatellar effusion; joint spacing appeared to be well maintained. The VA examiner's impression was that of post-traumatic arthrosis of the medial compartment of the right knee and mild patellofemoral arthrosis. The veteran testified in September 2005 that her right knee ground and occasionally gave out or locked up. The veteran was treated in the past with cortisone injections, but those were stopped due to the danger of side-effects. The veteran did not wear a knee brace. The veteran had a VA orthopedic examination in April 2006 during which she complained of grinding in the right knee and swelling mainly when climbing stairs. She also reported a dense sensory deficit between the two scars on the knee. On examination, the right knee had a 2+ effusion and full range of motion, unchanged with repetitive testing. She had two well-healed surgical scars with decreased sensation between the scars. The VA examiner noted that the knee was ligamentously stable. The X-ray studies of the knee showed osteoarthritis in the medial compartment, varus deformity, and patellofemoral osteoarthritis, and a squaring off of the medial femoral condoyle. The examiner diagnosed right knee osteoarthritis. A review of the evidence shows that the veteran's range of motion of the knee was normal or nearly normal (extension consistently normal at 0 degrees, and flexion near-normal at 130 degrees out of 140 degrees at worst). Compensable rating for limitation of flexion requires limitation to 45 degrees or less, and the veteran's limitation of flexion has never approximated such a degree of severity. Accordingly, the limitation of motion is not compensable under DCs 5260 and 5261. The veteran has subjectively complained of instability (locking and giving way). However, there is no indication of clinical ligamentous instability on examination. Accordingly, there is no basis on which to quantify a separately ratable instability under DC 5257. Although the veteran's knee disability is not compensable under DCs 5257, 5260, or 5261, she has reported pain, and demonstrated pain on motion during examination. A 10 percent rating for pain is accordingly appropriate under both Lichtenfels and DeLuca. Given that the veteran's disability is not compensable under the schedular criteria, the Board finds that the current 10 percent rating is adequate compensation for any arthritis with pain, weakness, fatigability, and other subjective symptoms. The Board accordingly finds that the criteria for rating in excess of 10 percent for the veteran's service-connected right knee disorder are not met. Therefore, the claim must be denied. ORDER An evaluation of 60 percent for the service-connected lupus erythematous is granted, subject to the regulations controlling disbursement of VA monetary benefits. A compensable evaluation for the service-connected right foot tarsal tunnel syndrome is denied. An evaluation in excess of 10 percent for the service- connected low back strain is denied. An evaluation in excess of 10 percent for the service- connected right knee status post arthroscopy is denied. REMAND The RO denied entitlement to a TDIU rating because the veteran did not satisfy schedular threshold requirements for consideration (a single service-connected disability ratable at 60 percent or more, two or more service-connected disabilities, one of which is ratable 40 percent or more and sufficient additional service-connected disability to bring the combined rating to 70 percent or more). See 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board's action above grants a rating of 60 percent for the service-connected SLE. The threshold schedular criteria are now met, and the veteran may be considered for entitlement to a TDIU rating. In reviewing the file, the Board notes that the RO has obtained two medical opinions of employability: a VA nurse- examiner opined in March 2006 that the veteran's service- connected SLE as likely as not hindered employability to at least some extent; a VA physician-reviewer opined in August 2008 that the veteran's service-connected orthopedic disabilities (low back strain, right foot tarsal tunnel syndrome, and right knee disability) did not preclude the veteran from securing and following substantially gainful employment. There is accordingly no medical opinion of record regarding the question of whether the veteran's service-connected disabilities, considered together, render her unable to secure or follow a substantially gainful occupation. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to send the veteran and her service representative a letter requesting that the veteran provide sufficient information, and as necessary signed authorization, to allow the RO to obtain any additional evidence not of record that pertains to her claim for a TDIU. The RO should also invite the appellant to submit all pertinent evidence in her possession, and explain the type of evidence that it is her ultimate responsibility to submit. The RO's letter should clearly explain to the veteran that she has a full one- year period to respond, although VA may decide the claim within the one-year period. 2. If the veteran responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and her representative of the records that were not obtained, of the efforts that were made to obtain them, and describe the further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or after the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo appropriate VA examination at an appropriate VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner, and the report of examination should include discussion of the appellant's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should render an opinion as to whether is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's service-connected disabilities - SLE, right knee arthrosis, low back strain, bronchitis, hypertension, tarsal tunnel syndrome of the right foot, and temporomandibular joint subluxation - together, preclude the veteran from securing and following substantially gainful employment. If the examiner cannot provide such an opinion without resorting to speculation, he or she should so indicate. The examiner should set forth all examination findings, along with complete rationale for his or her opinions, in a printed (typewritten) report. 4. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. 5. To help avoid any future remand, the RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is undertaken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed appropriate, the RO should readjudicate the claim for a TDIU rating in light of all the evidence of record. The RO should consider all pertinent evidence and legal authority in readjudicating the claim. If any benefit sought on appeal remains denied, the RO should furnish to the veteran and her representative an SSOC that includes citation to and discussion of any additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The veteran need take no further action until she is notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs