Citation Nr: 1007694 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-36 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability. 2. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to December 1986 and from August 1988 to September 2005. He also served in Southwest Asia during the Persian Gulf War from January 1991 to March 1991, and in Iraq from July 2003 to February 2004 and from July 2004 to November 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that granted service connection and awarded a 10 percent disability rating for a lumbar spine disability, effective October 1, 2005, and denied service connection for a bilateral ankle disability. The issue of entitlement to service connection for a bilateral ankle disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The Veteran's lumbar spine disability is manifested by forward flexion limited to 70 degrees, and a combined range of motion of the thoracolumbar spine of less than 120 degrees. While there is evidence of a levoconvex curvature of the lumbar spine and muscle spasm, gait is normal. There is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. It has not been productive of any incapacitating episodes within the past 12 months. Ankylosis and neurological manifestations associated with the service-connected lumbar spine disability have not been shown. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5237, 5242, 5243 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2009). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). In January 2005, prior to the initial adjudication of the claim for service connection for a lumbar spine disability, the Veteran was notified of the evidence not of record that was necessary to substantiate the claim. He was told that he needed to provide the names of persons, agency, or company who had additional records to help decide his claim. He was informed that VA would attempt to obtain review his claim and determine what additional information was needed to process his claim, schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. There is no allegation from the Veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. The Veteran was given notice of what type of information and evidence he needed to substantiate a claim for an increased rating in July 2006 should his service connection claim be granted. It is therefore inherent in the claim that the Veteran had actual knowledge of the rating element of an increased rating claim. Therefore, the Board finds that adequate notice was provided to the appellant prior to the transfer and certification of the Veteran's case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the statutes and regulations require that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA-authorized medical records; and, (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes (1) a current disability or persistent or recurrent symptoms of a disability, (2) an in-service event, injury, or disease, (3) current disability may be associated with the in-service event, and (4) there is insufficient evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran's service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. VA medical examinations pertinent to the claim were obtained in February 2005 and February 2008. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. In sum, the Board finds the duty to assist and duty to notify provisions have been fulfilled and no further action is necessary under those provisions. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2009). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2009). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2009). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2009); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2009). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2009), however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2009). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2009). For the purpose of rating disability from arthritis, the lumbar spine is considered a group of minor joints, ratable on a parity with a major joint. 38 C.F.R. § 4.45 (2009). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010 (2009). The criteria for rating traumatic arthritis in DC 5010 direct that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2009). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The 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 5010 (2009). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5010, Note 1 (2009). The words slight, 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, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2009). The use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2009). The Board has rated the Veteran's lumbar spine disability under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such ratings involve consideration of the level of impairment of a Veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2009). The Veteran's lumbar spine disability has been rated as 10 percent disabling under Diagnostic Codes 5010-5242 which encompasses the criteria for ratings based on traumatic and degenerative arthritis. 38 C.F.R. § 4.71a (2009). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2009). Other applicable codes include DC 5237, which pertains to lumbosacral or cervical strain, and DC 5243, which pertains to Intervertebral Disc Syndrome. 38 C.F.R. § 4.71a (2009). The General Rating Formula for Diseases and Injuries of the Spine, 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 provides that a rating of 20 percent is warranted where the evidence shows there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 40 percent is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2009). The criteria for Intervertebral Disc Syndrome (DC 5243), permit rating under either 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 results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs 5237, 5242, 5243 (2009). The Incapacitating Episode Formula provides that a 20 percent rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Finally, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a (2009). Incapacitating episodes are defined as episodes requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a (2009). When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2009). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2009). It has not been contended or shown in this case that the Veteran has residuals of a fracture of the vertebra (5235), sacroiliac injury or weakness (5236), spinal stenosis (5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (5240), or spinal fusion (DC 5241). Accordingly, the diagnostic codes pertaining to those disabilities are not applicable in this case. The Veteran underwent a VA examination in February 2005, at which time he complained of increased back pain treated by rest and medications. He rated his pain as a seven out of ten on the pain scale and indicated that his pain was precipitated by prolonged sitting, lifting more than fifty pounds, and repetitive movement. His pain was alleviated by stretching and rest. The Veteran complained of flare-ups of once per month that lasted four to five days. Range of motion testing of the lumbar spine revealed 70 degrees flexion and 20 degrees extension with pain at end range. Lateral flexion was to 30 degrees on the right and left. Rotation was to 20 degrees on the left and 15 degrees on the right with pain at end range. On examination of the lumbar spine, the paraspinal muscles of L4-L5 were tender to palpation with mild spasm. An x-ray examination of the lumbar spine revealed mild degenerative changes. The spine was otherwise normal. The Veteran was diagnosed with chronic low back strain with degenerative joint disease. The Veteran underwent a VA spine examination in February 2008, at which time it was noted that he was employed full- time as an Army contractor. He had not undergone surgery or required the use of braces or other ambulatory aids. He rated his pain as a four to six out of ten on the pain scale without flare-ups and denied any radiating lower extremity pain or paresthesias to the right or left. Treatment consisted of home stretching. Over the past year, the Veteran had not received any treatment or recommendations by a physician and had not experienced any incapacitating episodes. On examination of the lumbar spine, the Veteran had a normal gait but the spine was tender to palpation. There was no evidence of muscle spasm or any complaint of pain midline percussion of the spine. On range of motion testing, there were no complaints of pain with 85 degrees flexion, 20 degrees extension, 25 degrees right lateral flexion, 35 degrees left and right lateral flexion, 35 degrees right lateral rotation, and 30 degrees left lateral rotation. The Veteran was diagnosed with degenerative joint and disc disease of the lower lumbar. The examiner opined that his functional impairment was slight without weakness, fatigability, or incoordination. On x-ray examination, the impression was levoconvex curvature to the lumbar spine. There was facet arthropathy in the lower lumbar spine and mild L5-L6 disc space narrowing was noted without associated osteophyte formation. Sacroiliac joints were unremarkable. The Board finds that the Veteran is not entitled to a higher rating under the General Rating Formula which provides that a 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined limitation of motion of the thoracolumbar spine is not greater than 120 degrees; or with muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The medical evidence shows that on February 2005 VA examination, forward flexion was to 70 degrees with 20 degrees extension, with pain at the end of the range. Lateral flexion was to 30 degrees on the right and left. Rotation was to 20 degrees on the left and 15 degrees on the right with pain at end range. On VA examination in February 2008, forward flexion had increased to 85 degrees with 20 degrees extension, 25 degrees right lateral flexion, 35 degrees left and right lateral flexion, 35 degrees right lateral rotation, and 30 degrees left lateral rotation. The medical evidence shows a combined range of motion of the thoracolumbar spine greater than 120 degrees. While there was evidence of mild muscle spasm on examination in February 2005 and a finding of a levoconvex curvature of the lumbar spine on examination in February 2008, the Veteran's gait was normal. There is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. While the Veteran's motion of the lumbar spine is limited, that motion is limited to within a range of motion that warrants a 10 percent. Accordingly, the Board finds that the competent medical evidence does not support a finding that the Veteran is entitled to a rating in excess of 10 percent under the General Ratings Formula for Diseases of and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5237, 5242, 5243 (2009). The Board also finds that the Veteran is not entitled to a rating in excess of 10 percent based upon the diagnostic criteria pertaining to Intervertebral Disc Syndrome (IDS). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. During the February 2005 VA examination, the Veteran reported flare-ups of once per month that lasted four to five days. However, there is no objective evidence that those episodes required bed rest and treatment prescribed by a physician. In addition, on VA examination in February 2008, the Veteran denied any flare- ups and had not received any treatment or recommendations from a physician within the past year. Accordingly, the Board finds that the evidence does not show incapacitating episodes or prescribed bed rest by a physician in any year period under consideration during the pendency of the appeal. As the Veteran is not entitled to an increased rating based upon incapacitating episodes, it is necessary to determine whether the Veteran is entitled to a higher rating based upon any combined orthopedic and neurological manifestations. Turning first to the orthopedic manifestations, on VA examination in February 2005, there was 70 degrees flexion and 20 degrees extension with pain at end range, lateral flexion to 30 degrees on the right and left, and rotation to 20 degrees on the left and 15 degrees on the right with pain at end range. On VA examination in February 2008, forward flexion had increased to 85 degrees with 20 degrees extension, 25 degrees right lateral flexion, 35 degrees left and right lateral flexion, 35 degrees right lateral rotation, and 30 degrees left lateral rotation. Therefore, the Board finds that the requirements for a higher rating under the General Rating Formula, forward flexion greater than 30 degrees, but not greater than 60 degrees; or the combined limitation of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, are not shown. 38 C.F.R. § 4.71a, DC 5237 (2009). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2009). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2009). When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2009). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520 (2009). Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a (2009). On VA examination in February 2005, on examination of the spine there was tenderness to palpation of the paraspinal muscles of L4-L5 and mild spasm was noted, but a straight leg raise test was negative bilaterally. Muscle strength was 5/5 with no change with repetitive movement. On VA examination in February 2008, the Veteran denied any radiating lower extremity pain or paresthesias to the right or left. On examination of the lumbar spine, there was no evidence of muscle spasm or any complaint of pain midline percussion of the spine. Patellar reflexes were 1-2/4 and seated straight leg raising was negative. Manual muscle strength testing was 5/5. On sensory examination, light touch and scratch in the thighs, legs, and ankles was normal. In this case, findings in the medical records do not support a conclusion that the Veteran has radiculopathy, or that he has any other objective neurological symptoms that relate to his lumbar spine disability that could be assigned any separate compensable rating. Physical examination has consistently demonstrated negligible neurological impairment or sensory impairments. Additionally, no muscle atrophy is present. Therefore, the Board finds that the Veteran is not entitled to an increased rating for his lumbar spine disability based upon consideration of any neurologic residuals because there are not independently ratable neurologic residuals shown or diagnosed by the treating and examining physicians. The Board has determined that the Veteran is entitled to no more than a 10 percent disability rating under any of the spinal rating criteria applicable. Consideration has been given to the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. The Board has considered the Veteran's complaints of flare-ups and pain, as well as all evidence of record related to limitation of motion, incoordination, fatigability, and pain on motion in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating greater than 10 percent. DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, the Board finds that there is no basis for assigning a rating in excess of 10 percent because the evidence does not show that the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined limitation of motion of the thoracolumbar spine is not greater than 120 degrees; or with muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, even considering any additional limitation due to pain or flare- ups. The Board has also considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities may be made. The governing norm in an exceptional case 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. 38 C.F.R. § 3.321(b)(1) (2009). In this case, the regular schedular standards are not inadequate. There is no evidence that he has been frequently hospitalized for treatment of his lumbar spine disability. Neither does the record reflect marked interference with his employment due solely to his service-connected lumbar spine disability. On VA examination in February 2008, the Veteran indicated that he was employed full-time as an Army contractor. Here, the objective evidence does not reflect that his lumbar spine disability caused a marked interference with his employment beyond that contemplated by the assigned rating, nor has he submitted any objective evidence of the same. Therefore, the Board finds that referral for consideration of the assignment of an extraschedular rating for this disability is not warranted. The Board recognizes the Veteran's own contention as to the severity of his lumbar spine disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). However, as a layperson, the Veteran is not competent to provide an opinion requiring medical knowledge, such as whether the current symptoms satisfy diagnostic criteria. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, the Veteran's own assertions do not constitute competent medical evidence in support of an increased rating for a lumbar spine disability. In sum, the weight of the credible evidence demonstrates that the orthopedic manifestations of the Veteran's lumbar spine disability warrant no more than a 10 percent rating at any time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that the Veteran is not entitled to a separate rating for any neurological component of his lumbar spine disability as there is no objective evidence of any independently ratable neurological manifestations that would warrant a compensable rating. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of excess of 10 percent for a lumbar spine disability is denied. REMAND Additional development is needed prior to the disposition of the Veteran's claim for service connection for a bilateral ankle disability. VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development The Veteran claims that he currently has a bilateral ankle disability that is related to his first period of service. Service medical records dated in July 1990 reflect an assessment of status post inversion injury of the right ankle and chronic right ankle ligament laxity. A July 1990 note indicates that he had recurrent invasion sprains of the right ankle. In December 1994, he injured his right ankle in a jump and complained of persistent pain and swelling. He was diagnosed with a Grade I ankle sprain. In October 2001, he was treated for and diagnosed with left ankle pain. In November 2001, he was treated for a resolving left ankle sprain. The Veteran was afforded a VA examination in February 2005, at which time he reported that he twisted his right ankle and was in a cast in 1983. He indicated that his leg had been twisted several times while he was on "jump status." However, an x-ray examination of the ankles was normal. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. 3.159(c)(4) (2009); Robinette v. Brown, 8 Vet. App. 69 (1995). Although the Veteran is competent to report the onset of a bilateral ankle disability during and after his service, he is not competent to diagnose or to relate any current bilateral ankle disability to his active service. In addition, it is unclear whether the Veteran has a currently diagnosed bilateral ankle disability. Accordingly, the Board finds that a VA examination is necessary in order to fairly decide his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to determine the nature and etiology of any current bilateral ankle disability. The claims folder should be reviewed and that review should be indicated in the examination report. The rationale for all opinions should be provided. Specifically, the examiner should provide the following information: (a) Diagnose any current bilateral ankle disability. (b) Is it at least as likely as not (50 percent or more probability) that any bilateral ankle disability was incurred in or is due to or the result of any period of the Veteran's active service, including diagnoses of and treatment for chronic right ankle ligament laxity in July 1990 and a Grade I right ankle sprain in December 1994? The examiner must consider the Veteran's statements regarding the incurrence of a bilateral ankle disability during both periods of service, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 2. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs