Citation Nr: 0813571 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-35 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable evaluation for lower back disability with surgical scar, to include separate compensable ratings for neurological impairment. 2. Entitlement to an initial compensable evaluation for right ankle disability. 3. Entitlement to service connection for left knee disability, to include as secondary to service-connected lower back disability with surgical scar and right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from October 1980 to February 1981 and August 1984 to January 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision from the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In November 2007, the veteran, sitting at the Pittsburgh RO, testified during a hearing, via video conference, conducted with the undersigned sitting at the Board's main office in Washington, D.C. A copy of the hearing transcript is in the claims file. The record was held open after the hearing and the veteran submitted additional evidence and waived initial consideration of the evidence by the RO. See 38 C.F.R. § 20.1304(c) (2007). At the veteran's hearing, his representative noted that he may have a left knee disability caused by his other service- connected disabilities, namely his lower back disability and right ankle disability. The issue on the cover page relating to the veteran's left knee has been changed to reflect this contention. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Lower back disability with surgical scar has been primarily manifested by orthopedic symptoms of pain and a combined range of motion of the thoracolumbar spine of 225 degrees. Incapacitating episodes (requiring bed rest prescribed by a physician and treatment by a physician), forward flexion of 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, an abnormal gait, and abnormal spinal contours are not shown. 2. Neurological impairment of the left and right lower extremities due to lower back disability is manifested by no more than mild incomplete paralysis of the sciatic nerve. 3. Right ankle disability has been primarily manifested by occasional achiness. Arthritis, malunion or nonunion of the tibia and fibula, ankylosis of the ankle, ankylosis of subastragalar or tarsal joint, malunion of the os calcis or astragalus, and moderate limitation of motion are not shown. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but no more, for the orthopedic manifestations of lower back disability with surgical scar have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235 to 5243 (2007). 2. The criteria for an initial evaluation of 10 percent, but no more, for neurological impairment of the left lower extremity associated with the lower back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8520 (2007). 3. The criteria for an initial evaluation of 10 percent, but no more, for neurological impairment of the right lower extremity associated with the lower back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8520 (2007). 4. The criteria for an initial compensable evaluation for right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Id. The veteran's claim for entitlement to service connection of a left knee disability is being remanded by this decision. Accordingly, further discussion regarding the duty to notify and assist is not necessary at this time. Considering the other issues, the veteran is challenging the initial evaluations assigned following the grants of service connection for lower back disorder with surgical scar and right ankle disability. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In any event, after the initial adjudication of the claims, the veteran was thereafter provided a notice letter dated in September 2006 that complies with the notice requirements most recently articulated in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). In addition, therein, the veteran was also provided with notice of the information and evidence needed to establish an effective date for his disabilities. The claims were last readjudicated in September 2006. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record private treatment records, a hearing transcript, and service treatment records. There is no indication that any other treatment records exist that should be requested, or that any pertinent evidence has not been received. A VA examination was provided in connection with these claims. In the veteran's November 2006 substantive appeal, he asserted that his VA examination was not a "full examination." To the extent that the veteran is asserting that his examination was inadequate, the Board notes that the reported findings in the examination report are sufficiently detailed with recorded history, clinical findings, to include the relevant ranges of motion of the lower back and right ankle, and pertinent diagnoses. Additionally, it is not shown that the examination was in some way incorrectly prepared or that the VA examiner failed to address the clinical significance of the veteran's disabilities. There are other pertinent records on file and they are consistent with the exam results. For example, a January 2008 letter from the veteran's private physician states that the veteran's right ankle has a full range of motion and that he had decreased sensation of the bilateral lower extremities. These same findings were reported by the VA examiner. As such, the Board finds that additional development by way of another examination would be redundant and unnecessary. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Ratings Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Compensation for service-connected injury is limited to those claims which show present disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in cases such as this, involving the assignment of initial ratings following the initial awards of service connection for lower back disability with surgical scar and right ankle disability, VA must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date). Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Accordingly, separate ratings may be assigned (at the time of the initial rating) for separate periods of time based on the facts found. Id. This practice is known as "staged" ratings. The Board acknowledges that in cases where entitlement to compensation has already been established a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Under DC 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the cervical vertebrae, dorsal vertebrae, and lumbar vertebrae are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Lower Back The veteran asserts that his lower back disability with surgical scar is more disabling that currently evaluated. At his personal hearing he testified that his L5-S1 was fused, that he has pain in his back and groin, and that he experiences constant numbness down the side of his legs. He also reported that his wife told him his legs twitch at night. According to the relevant regulations for spinal disabilities, DC 5235 (vertebral fracture or dislocation), DC 5236 (sacroiliac injury and weakness), DC 5237 (lumbosacral or cervical strain), DC 5238 (spinal stenosis), DC 5239 (spondylolisthesis or segmental instability), DC 5240 (ankylosing spondylitis), DC 5241 (spinal fusion), DC 5242 (degenerative arthritis of the spine) (see also, DC 5003), DC 5243 (intervertebral disc syndrome) are evaluated under the following general rating formula for diseases and injuries of the spine (unless intervertebral disc syndrome is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), in relevant parts: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10% evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 of more of height. A 20% rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, DCs 5235 to 5243 (in effect from September 26, 2003). Intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 (2007). According to the relevant portion of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months and a 20 percent rating requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For purposes of evaluations under DC 5243, 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. Id., Note (1). After a careful review of the evidence, the Board finds that with reasonable doubt resolved in favor of the veteran, a 10 percent evaluation, but no more, is warranted for the orthopedic manifestations of lower back disability with surgical scar, and that separate 10 percent evaluations, but no more, are warranted for neurological impairment of the right and left lower extremities. In this case it is more beneficial to give the veteran separate evaluations for his chronic orthopedic and neurological manifestations, which is explained below. Incapacitating episodes are not shown by the evidence of record; in fact, at the veteran's August 2005 VA examination it was noted that the veteran had no incapacitating episodes requiring bed rest in the last 12 months. Accordingly, a rating under DC 5243, based on incapacitating episodes, would not be appropriate. Orthopedic Manifestations The veteran was afforded a VA examination in August 2005. At that examination, he reported that he had daily pain associated with his lower back disability and that he was under no current treatment. On physical examination, it was noted that the veteran's lumbar spine had forward flexion to 90 degrees, extension to 15 degrees, and that rotational movements and lateral flexion were to 30 degrees each, bilaterally. Thus, the veteran's combined range of motion of the thoracolumbar spine at that examination was 225 degrees. See 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (2). As such, a 10 percent disability evaluation is warranted for the orthopedic manifestations of the veteran's lower back disability with surgical scar; however, the preponderance of the evidence is against a finding that the orthopedic manifestations warrant more than a 10 percent evaluation. For the veteran to warrant an evaluation in excess of 10 percent for the orthopedic manifestations of his lower back disability, the evidence would need to show forward flexion of the thoracolumbar spine not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a, DCs 5235 to 5243. Considering range of motion, the veteran's August 2005 VA examination shows forward flexion of the lumbar spine to 90 degrees and a combined range of motion of the thoracolumbar spine of 225 degrees. There is no other competent medical evidence of record in significant conflict with these findings. As such, the Board finds that an evaluation in excess of 10 percent for the orthopedic manifestations of the veteran's lower back disability with surgical scar is not warranted based on decreased range of motion. The Board has considered the applicability of DeLuca v. Brown, 8 Vet. App. 202, including whether there is a basis for assigning a rating in excess of 10 percent due to additional limitation of motion resulting from pain or functional loss. See 38 C.F.R. §§ 4.40 and 4.45. The Board finds that the effects of pain reasonably shown to be due to the veteran's service- connected lower back disability are contemplated in the 10 percent rating currently assigned. There is no indication that pain causes functional loss greater than that contemplated by the 10 percent evaluation assigned by the RO. See 38 C.F.R. § 4.40; DeLuca, supra. An abnormal gait and an abnormal spinal contour are not shown by the evidence of record. At the veteran's August 2005 VA examination it was noted that his gait and posture were normal and that X-rays of the lumbar spine showed L5-S1 fusion and first degree spondylolisthesis of L5 on S1. A November 2007 X-ray report from the veteran's private physician also reportedly did not show any abnormal spinal contour. An evaluation in excess of 10 percent for the orthopedic manifestations of the veteran's lower back disability with surgical scar is not warranted based on any abnormal spinal contour or abnormal gait caused by guarding or muscle spasm. The veteran has no complaints referable to the surgical scar in the lumbar area and there is no basis upon which to award a separate compensable evaluation for the scar. See 38 C.F.R. § 4.118, DCs, 7801 through 7805 (2007). At the veteran's August 2005 VA examination, an 11 centimeter long surgical scar in the lumbar area was noted. The examiner specifically stated that the scar was not a problem to the veteran. It was not unsightly, not adherent, did not interfere with any function, and was not elevated, depressed, or keloidal. The scar was less than 1 percent of the body area affected. Neurological Manifestations As noted above, the Board finds that the veteran's lower back disability should be rated separately for the orthopedic and neurological symptoms. The veteran has reported, and medical professionals have noted, bilateral numbness of the lower extremities. A December 2007 CT (computed tomography) scan report includes a conclusion that a bony formation posterior of the L5 vertebral body results in what is felt to be impression on the exiting L5 left nerve root. The Board finds that the veteran has neurological impairments of the left and right lower extremity as a result of his lower back disability that warrant compensable evaluations separate from the orthopedic manifestations of his lower back disability. The veteran's neurological impairments of the left and right lower extremity are best evaluated under DC 8520, which addresses paralysis of the sciatic nerve. Total paralysis of the sciatic nerve is manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and "weakened or (very rarely) lost" flexion of the knee. 38 C.F.R. § 4.124a, DC 8520. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. Id. An 80 percent disability rating is warranted for complete paralysis of the sciatic nerve. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. (emphasis added) The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor. Id. The words "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2007). After a careful review of the competent medical evidence of record, the Board finds that the evidence supports a finding that the veteran warrants 10 percent evaluations, but no more, for the neurological impairments of the right and left lower extremities; however, the preponderance of the evidence is against a finding that the neurological impairments each warrant more than a 10 percent evaluation. Neurological testing was conducted at the veteran's August 2005 VA examination. The veteran had decreased sensation along the lateral aspect of both lower legs from the knees to the tops of the feet. His deep tendon reflexes were all 2+ and equal bilaterally. The motor examination was normal and strength was good bilaterally in all extremities. In a January 2008 letter, a private physician reported that the veteran has decreased sensation of the lower extremities, below the knee bilaterally. The Board associates findings such as these, showing only decreased sensation, with "mild" incomplete paralysis of the sciatic nerve, rather than "moderate." The involvement is wholly sensory, and the veteran does not have complete loss of sensation. B. Right Ankle The veteran asserts that his right ankle disability is more disabling than currently evaluated. At his personal hearing, the veteran testified that he has ankle pain and that his ankle buckles at times. He reported that he favors his right ankle and limps when the ankle is really bad. The veteran's right ankle disability is currently evaluated using DC 5271. Under DC 5271, moderate limitation of motion of the ankle warrants a 10 percent evaluation, and marked limitation of motion warrants a 20 percent evaluation (the highest available under this DC). 38 C.F.R. § 4.71a, DC 5271. The words "moderate" and "marked" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Normal ankle dorsiflexion is to 20 degrees, with plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. The veteran was afforded a VA examination in August 2005. At that examination he reported that his right ankle feels achy when he first starts walking. The severity of ankle pain was reported as a 6 to a 7 on a 0 to 10 scale, the frequency was about 3 times a week and the duration was in hours. The pain reportedly was aggravated by weather changes and sitting for too long and relieved by slow walking until it loosens up. On physical examination, right ankle plantar flexion was to 45 degrees and dorsiflexion to 20 degrees. This is considered a normal range of motion. See id. With repetitive range of motion he had a mild medial joint discomfort with inversion movements at 25 degrees. No flare up was elicited. The effect on activities of daily living was reported as morning stiffness in the joint. The examiner reported no effect on the veteran's job and that the major functional impact was "mild joint pain." Right ankle X- rays were reportedly normal and there was no diagnosis given for the veteran's right ankle. A January 2008 letter from the veteran's private physician notes that the veteran's right ankle has full range of motion and that there is pain over the posterior aspect of the ankle. A VA examiner and a private physician have noted that the veteran has a full range of motion in his right ankle. The Board does not associate such findings with "moderate" limitation of motion. As such, a compensable evaluation based on DC 5271 is not warranted. See 38 C.F.R. § 4.71a, DC 5271. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The Board finds that the effects of pain reasonably shown to be due to the veteran's service-connected right ankle disability are contemplated in the noncompensable evaluation currently assigned. There is also no indication that pain causes functional loss greater than that contemplated by the noncompensable evaluation assigned by the RO. See 38 C.F.R. § 4.40; DeLuca v. Brown, supra. Simply put, in this case, the reported pain does not approximate "moderate" limitation of motion of the right ankle. At the veteran's personal hearing he stated that he was under the impression that recent X-rays of his right ankle showed arthritis. Subsequently, the veteran submitted a November 2007 X-ray report of his right ankle which reportedly showed no evidence of acute fracture or dislocation and that the talar dome appeared intact. The impression given was no acute process identified. In a January 2008 letter, the veteran's private physician noted that X-rays of the right ankle were negative. X-rays of the veteran's right ankle were also reported as negative by the August 2005 VA examiner. As arthritis of the right ankle has not been shown by X-ray evidence, the Board finds that a compensable rating based on findings of arthritis, under DC 5003, is not warranted in this case. See 38 C.F.R. § 4.71a, DC 5003. The Board has considered rating the veteran's right ankle disability under a different Diagnostic Code. However, the veteran does not have malunion or nonunion of the tibia and fibula, ankylosis of the ankle, ankylosis of subastragalar or tarsal joint, or malunion of the os calcis or astragalus. Therefore, DCs 5262, 5270, 5272, and 5273 are not applicable. 38 C.F.R. § 4.71a, DCs 5262, 5270, 5272, 5273 (2007). The Board finds no other appropriate Diagnostic Code which could be used to assign a compensable evaluation for the veteran's right ankle disability. C. Conclusion The veteran is competent to report his symptoms. To the extent that the veteran has asserted that he warrants more than the three 10 percent evaluations assigned for his lower back disability and the noncompensable evaluation for his right ankle disability, the Board finds that the preponderance of the evidence does not support his contentions, for all the reasons stated above. The Board is responsible for weighing all of the evidence and finds that the preponderance of it is against an initial compensable evaluation for right ankle disability and against an initial evaluation in excess of 10 percent for the orthopedic manifestations of lower back disability with surgical scar, and in excess of 10 percent each for neurological impairment of the left and right lower extremity, and there is no doubt to be resolved. Gilbert, 1 Vet. App. at 55. The Board finds no basis upon which to predicate assignment of "staged" ratings. The Board notes it does not find that consideration of extraschedular ratings under the provisions of 38 C.F.R. § 3.321(b)(1) (2007) is in order. The Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. Id. In the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Board emphasizes that the percentage ratings under the Schedule are representative of the average impairment in earning capacity resulting from diseases and injuries. 38 C.F.R. § 4.1, states that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Thus, with this in mind, the Board finds that the veteran's symptoms that warrant the above evaluations for right ankle disability and lower back disability with surgical scar (including separate ratings for orthopedic and neurological manifestations) are clearly contemplated in the Schedule and that the veteran's service-connected disabilities are not so exceptional nor unusual such as to preclude the use of the regular rating criteria. ORDER Entitlement to an initial evaluation of 10 percent for the orthopedic manifestations of lower back disability with surgical scar is granted for the entire appeal period, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial evaluation of 10 percent for neurological impairment of the left lower extremity is granted for the entire appeal period, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to an initial evaluation of 10 percent for neurological impairment of the right lower extremity is granted for the entire appeal period, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to an initial compensable evaluation for right ankle disability is denied. REMAND The veteran asserts that he has a left knee disability as a result of his active military service. The veteran has also indicated that he may have a left knee disability as a result of his service-connected disabilities. The veteran contends that his left knee was injured when, during training on active duty, his knee was struck by another soldier's weapon. Service treatment records from August and September 1987 show that the veteran complained of a left knee injury after being struck by a blank firing adaptor that was attached to the barrel of another soldier's rifle. The diagnoses given during that time were left knee patella contusion and left knee bruise. The veteran's October 2004 retirement examination report shows a normal clinical evaluation of the lower extremities at that time and no defects related to a knee injury were noted. In a report of medical history completed by the veteran in connection with that examination he reported no knee trouble. The veteran was afforded a VA examination in August 2005. At that examination the veteran reported intermittent left knee pain. He also stated that he favors his right ankle and that behavior, in his opinion, could hurt his knee. The left knee examination and range of motion were all normal and the examiner noted that there was no discernable functional impact. The only disability found on examination was "tiny suprapatellar effusion," found on X-ray. X-rays also reportedly showed normal joint spaces and no bony abnormalities. The diagnosis given was left knee minor effusion with no degenerative findings. Since that examination, the veteran has submitted an additional X-ray report and a letter from his private physician. The November 2007 X-ray report states that the veteran's left knee has mild medial compartmental joint space narrowing, and no effusion. A 7 millimeter sclerotic density medial femoral condyle subchondral region likely representing a small bone island was also noted. The January 2008 letter from the veteran's private physician relays that the veteran's left knee had a positive McMurray's sign (a rotation test for demonstrating torn meniscus of the knee) and that X-rays revealed medial compartment narrowing. The more recent medical evidence seems to indicate that the veteran may have problems with his left knee other than minor effusion. The Board finds that another VA examination is in order to determine whether any left knee disability found on examination is etiologically related to the in-service injury to his left knee in 1987. Also, the veteran has never been examined to determine if the etiology of any left knee disability may be his other service-connected disabilities. This should also be commented upon by the VA examiner, if appropriate. Accordingly, the case is REMANDED for the following action: 1. The veteran should be scheduled for a VA examination to determine the nature and etiology of any current left knee disability. The claims folder should be made available to the examiner for review. Any needed non-invasive tests should be performed to determine if the veteran has a current left knee disability. If the examiner finds a current left knee disability, the examiner should provide an opinion as to whether the veteran currently has any left knee disability that is at least as likely as not (e.g., a 50 percent or greater probability) attributable to the veteran's service, to include the in-service left knee injury in 1987. If the veteran has a current left knee disability, but the examiner determines that the disability is not as likely as not attributable to his service, the examiner should opine as to whether the veteran currently has any left knee disability that is at least as likely as not (e.g., a 50 percent or greater probability) caused or aggravated (i.e., permanently worsened beyond the normal progress of the disorder) by his service connected lower back disability and/or right ankle disability. Any opinion(s) should be accompanied by a written rationale with evidence in the claims file and/or sound medical principles. If an opinion(s) cannot be made without resort to mere speculation the examiner should so state. 2. The veteran's entire file should then be reviewed and his claim readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board in accordance with applicable procedures. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs