Citation Nr: 1117614 Decision Date: 05/06/11 Archive Date: 05/17/11 DOCKET NO. 99-11 056 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to a higher evaluation for degenerative joint and disc disease of the lumbar spine (low back disability), rated as 60 percent disabling from May 12, 1996, to September 22, 2002, and rated as 40 percent disabling from September 23, 2002. 2. Entitlement to a higher evaluation for degenerative joint and disc disease of the cervical spine with spinal stenosis, status post failed cervical spine surgery, (cervical spine disability) rated as 40 percent disabling from May 12, 1996. 3. Entitlement to a higher evaluation for degeneration of the medial meniscus of the left knee, currently rated as 20 percent disabling. 4. Entitlement to a higher evaluation for osteoarthritis of the right knee, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Thomas J. Reed, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1957 and from March 1978 to October 1994. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. In October 2006, the Veteran was afforded a hearing before the undersigned. Jurisdiction over the appeal currently resides with the RO in Wilmington, Delaware. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal has an extensive procedural history, however in the interest of brevity that history will not be repeated again herein but instead the Board will direct the reader to the prior March 2010 Board remand for that history. The claims for higher evaluations for the bilateral knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From May 12, 1996, to September 22, 2002, the preponderance of the competent and credible evidence of record did not show that the Veteran's low back disability was manifested by a vertebral fracture with cord involvement requiring long leg braces or being bedridden or complete ankylosis of the entire spine at an unfavorable angle. 2. From September 23, 2002, the preponderance of the competent and credible evidence of record does not show that the Veteran's low back disorder is manifested by problems compatible with intervertebral disc syndrome with pronounced symptoms even taking into account his complaints of pain. 3. From September 23, 2002, the preponderance of the competent and credible evidence of record does not show that the Veteran's low back disorder is manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during any twelve month period since 2002. 4. From September 23, 2002, the preponderance of the competent and credible evidence of record does not show that the Veteran's low back disorder is manifested by a fracture with cord involvement requiring long leg braces or being bedridden, a fracture of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace, or ankylosis of the lumbar spine at either a favorable or unfavorable angle. 5. From September 26, 2003, the preponderance of the competent and credible evidence of record does not show that the Veteran's low back disorder is manifested by unfavorable ankylosis of the thoracolumbar spine or the entire spine. 6. From May 12, 1996, the preponderance of the competent and credible evidence of record does not show that the Veteran's cervical spine disability is manifested by a fracture with cord involvement requiring long leg braces or being bedridden, a fracture of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace, or ankylosis of the entire spine at a unfavorable angle. 7. From May 12, 1996, the preponderance of the competent and credible evidence of record does not show that the Veteran's cervical spine disability is manifested by problems compatible with intervertebral disc syndrome with pronounced symptoms even taking into account his complaints of pain. 8. From September 23, 2002, the preponderance of the competent and credible evidence of record does not show that the Veteran's cervical spine disability is manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during any twelve month period since 2002. 9. From September 26, 2003, the preponderance of the competent and credible evidence of record does not show that the Veteran's cervical spine disability is manifested by unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. At no time during the pendency of the appeal, did the Veteran meet the criteria for higher evaluations for his low back disability. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289, 5293 (2003); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5242, 5243 (2010). 2. At no time during the pendency of the appeal, did the Veteran meet the criteria for a higher evaluation for his cervical spine disability. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5293 (2003); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5102 VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. Next, the Board finds that letters dated in January 2002, March 2002, March 2004, February 2005, March 2006, and December 2010 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. While the Veteran was not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claims, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the January 2011 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent post-service evidence including, in full compliance with the Board's April 2004 and April 2007 remand instructions, the Veteran's records from, among others, Nathan C. Moskowitz, M.D., Ph.D., Montgomery General Hospital, Dr. Robert Deckmann, Dr. Martin Graff, Dr. Elizabeth Masten, Dr. Jose A. Pando, Diagnostic Health, and Beebe Medical Center. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In this regard, the Board notes that while VA attempted to obtain the Veteran's records from the Social Security Administration (SSA) and Dr. Cleveland, these attempts were unsuccessful because they no longer had the claimant's records because they had been destroyed, lost, and/or never had them. The Veteran was thereafter advised that these records were not available in either a supplemental statement of the case or a March 2010 letter. Therefore, VA adjudication of these claims may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The record also shows that the Veteran was afforded VA examinations in October 1998, September 2002, November 2005, and July 2008 VA examination. In February 2009, an addendum was obtained to the July 2008 VA examination. Moreover, the Board finds that these examinations both substantially comply with the Board's April 2004 and April 2007 remand instructions and are adequate to adjudicate the claims because, after a review of the record on appeal by most of the examiners and an examination of the claimant by all the examiners, the examiners provided findings as to the severity of the claimant's disabilities that allows VA to rate them under all applicable rating criteria. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Dyment, supra; D'Aries, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Claims The Veteran contends that his low back disability and cervical spine disability are more severe than rated. It is also requested that the Veteran be afforded the benefit of the doubt. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The August 1997 rating decision assigned a separate 20 percent rating for the Veteran's low back disability under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (intervertebral disc syndrome) and a separate 30 percent rating for his cervical spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis)-5290 (limitation of motion of the cervical spine), both effective from May 12, 1996. A subsequent February 1999 rating decision granted the Veteran's low back disability a 60 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5010 (traumatic arthritis)-5293 and granted his cervical spine disability a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5290, both effective from May 12, 1996. Thereafter, an April 2009 rating decision, after granting the Veteran separate 20 percent ratings for the neurological impairment caused by his service connected low back and cervical spine disabilities to each of his extremities, re-rated his low back disability as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5293, effective from September 23, 2002. Since the Veteran filed his claims in May 1997, there have been a number of changes in the criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a. The new criteria for rating intervertebral disc syndrome became effective September 23, 2002. See 67 Fed. Reg. 54345 (Aug, 22, 2002). Further, additional regulatory changes for rating all other back disorders became effective September 26, 2003, but these did not change the way intervertebral disc syndrome was rated, except for renumbering Diagnostic Code 5293 as Diagnostic Code 5243. See 68 Fed. Reg. 51454-56 (Aug. 27, 2003). In addition, 69 Fed. Reg. 32449 (June 10, 2004) corrected a clerical error in the Federal Register publication of August 27, 2003. The statement of the case issued in September 1998 notified the Veteran of the old rating criteria and the supplemental statement of the case issued in October 2002 notified the Veteran of the new rating criteria. Accordingly, adjudication of his claims may go forward. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). However, given the change in law, while VA may consider the old criteria for rating an intervertebral disc syndrome and all other back disorders for the entire period during which the appeal has been pending, it may only consider the new criteria for rating an intervertebral disc syndrome from September 23, 2002, and the new criteria for rating all other back disorders from September 26, 2003. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The old criteria for rating all other back disorders potentially provided higher evaluations if he had a fracture with cord involvement requiring long leg braces or being bedridden (100 percent) or a fracture of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace (60 percent) (Diagnostic Code 5285); complete ankylosis of the spine at an unfavorable angle (100 percent) or complete ankylosis of the spine at a favorable angle (60 percent) (Diagnostic Code 5286); or ankylosis of the lumbar spine at an unfavorable angle (50 percent) (Diagnostic Code 5289). 38 C.F.R. § 4.71a (2002). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The old criteria for rating an intervertebral disc syndrome potentially provided higher evaluations if the condition was pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief (60 percent) (Diagnostic Code 5293). 38 C.F.R. § 4.71a (2002). A 60 percent rating is the maximum available rating under Diagnostic Code 5293. The new criteria for rating all other back disorders, provides a 100 percent rating if the back disorder is manifested by unfavorable ankylosis of the entire spine, and a 50 percent rating if the back disorder is manifested by unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a (2010). The new criteria for rating an intervertebral disc syndrome provides a maximum 60 percent rating if the back disorder is manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a (2010). 38 C.F.R. § 4.71a, Note 1, also allows a claimant to receive a separate compensable rating for adverse neurological symptomatology associated with his service connected back disorders. In this regard, when evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id, at 206. Under 38 C.F.R. § 4.40, 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 on which ratings are based adequately portray the anatomical damage, and 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 which 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. Additionally, 38 C.F.R. § 4.45 provides, as regards to the joints, that 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. (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. For the purpose of rating disability from arthritis, the spine is considered a major joint. In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Vertebral Fractures a. The Old Criteria Initially, the Board notes that the old criteria for rating the Veteran's service connected low back and cervical spine disabilities potentially provided higher ratings if the claimant's disabilities included a vertebral fracture with various degrees of associated adverse symptomatology. See 38 U.S.C.A. § 4.71a, Diagnostic Code 5285 (2002). However, a review of the record on appeal does not reveals that either the Veteran's service connected low back disability or his service connected cervical spine disability included a vertebral fracture. See VA examination reports dated in October 1998, September 2002, November 2005, and July 2008; See also lumbosacral spine magnetic resonance imaging evaluations (MRIs) dated in June 1996, April 2004, May 2006, and July 2006; cervical spine MRIs dated in March 1994, January 1997, April 2004, and July 2006. In this regard, while the September 9, 2002, VA examiner opined that x-rays showed that C5 had a slight wedge deformity, a vertebral fracture was not documented in this x-ray or in any other x-ray or MRI of record. In the absence of a vertebral fracture with various degrees of associated adverse symptomatology, the Board will not rate either of his service-connected disabilities as a vertebral fracture. Therefore, because the preponderance of the competent and credible evidence of record did not show that the Veteran's low back disability was manifested by a vertebral fracture with cord involvement requiring long leg braces from May 12, 1996, to September 22, 2002, the Board finds that the claimant did not meet the criteria for more than a 60 rating for his low back disability under old 38 U.S.C.A. § 4.71a, Diagnostic Codes 5285 (2002). This is true throughout this period of time and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. Likewise, because the preponderance of the competent and credible evidence of record did not show that the Veteran's low back disability, from September 23, 2002, or his cervical spine disability, from May 12, 1996, was manifested by a fracture with cord involvement requiring long leg braces or being bedridden or a fracture of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace, the Board finds that the claimant did not meet the criteria for more than a 40 rating for either disability under old 38 U.S.C.A. § 4.71a, Diagnostic Codes 5285 (2002). This is true throughout these periods of time and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. Ankylosis a. The Old & New Criteria Initially, the Board notes that both the old and new criteria for rating the Veteran's service connected low back and cervical spine disabilities potentially provide higher ratings if the claimant's disabilities included ankylosis. See 38 U.S.C.A. § 4.71a, Diagnostic Codes 5286, 5287, and 5289 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5240 and 5241 (2010). However, in the absence of ankylosis, the Board may not rate either of his service-connected disabilities as ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). As to the low back disability from May 12, 1996, to September 22, 2002, the October 1998 VA examiner opined that the Veteran had no motion and the thoracic spine showed 20 degrees of kyphosis. Likewise, the September 9, 2002, VA examiner opined that his lumbosacral spine had no motion in any direction. However, while the record during this time period shows ankylosis of the lumbar spine it does not show complete ankylosis of the entire spine at an unfavorable angle. Therefore, the Board finds that the claimant did not meet the criteria for more than a 60 rating for his low back disability under old 38 U.S.C.A. § 4.71a, Diagnostic Codes 5285 or 5286 (2002). This is true throughout this period of time and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. As to the cervical spine disability from May 12, 1996, while the August 1996 physical therapy record noted that the Veteran had "maximum limitations in cervical mobility," the October 1998 VA examiner opined that the Veteran's had 5 degrees of flexion and the September 9, 2002, VA examiner reported that the Veteran's cervical spine had 25 degrees of flexion, extension lacked 10 degrees, had 5 degrees of left and right bending, and had 15 degrees of left and right rotation. While motion of the cervical spine was not as great at the subsequent November 2005 and February 2006 VA examinations, these examiners nonetheless continued to report that the cervical spine had some motion. Moreover, the record during this time period does not ever show complete ankylosis of the entire spine at a favorable angle. Therefore, the Board finds that the claimant did not meet the criteria for more than a 40 rating for either disability under old 38 U.S.C.A. § 4.71a, Diagnostic Codes 5286 (2002). This is true throughout this period of time and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. As to the low back disability from September 23, 2002, while the November 2005 VA examiner opined that the Veteran had no extension, lateral flexion, or rotation at the thoracolumbar junction, he also reported that, while truncal flexion was less than 30 degrees, he nonetheless had some flexion. Therefore, the low back was no longer ankylosed. Moreover, nothing in the record during this time contradicts the above VA examiner's opinion regarding the low back having at least some motion. See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Additionally, the record during this time period does not include a medical opinion that the Veteran has ankylosis of the lumbar spine at either a favorable or unfavorable angle. Therefore, the Board finds that the claimant did not meet the criteria for more than a 40 rating for his low back disability under old 38 U.S.C.A. § 4.71a, Diagnostic Codes 5286 and 5290 (2002). This is true throughout this period of time and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. As to the low back disability and cervical spine disability from September 26, 2003, as reported above, the November 2005 VA examiner opined that the Veteran had some truncal flexion of the thoracolumbar junction. Similarly, while motion of the cervical spine was limited at the November 2005 and February 2006 VA examinations, these examiners nonetheless reported that the cervical spine had some motion. Moreover, nothing in the record during this time contradicts the above VA examiners opinions regarding the low back and cervical spine having at least some minimal motion. See Colvin, supra. Additionally, the record during this time period does not ever show unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. Therefore, the Board finds that the claimant does not meet the criteria for more than a 40 rating for either disability under new 38 U.S.C.A. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. This is true throughout these periods of time and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. Intervertebral Disc Syndrome The Facts Treatment records and/or letters from Dr. Moskowitz, dated from February 1994 to September 2001, documents the Veteran's complaints and treatment for neck pain with numbness before and after a March 1996 cervical spine C3 to C7 laminectomy and fusion. In this regard, an August 1996 physical therapy record noted that he had "maximum limitations in cervical mobility." Thereafter, a January 1997 record included the opinion that the Veteran had severe pain and significant numbness. However, a July 1996 record also included the opinion that the Veteran was doing "quite well" and a December 1997 record noted that Dr. Moskowitz could find no reasons for the Veteran's complaints of pain and numbness. In January 1997 and March 1998, Dr. Moskowitz also opined that the Veteran's recent MRI showed cervical myelomalacia and probably persistent stenosis at C5-C6. At the October 1998 VA examination, the Veteran complained of chronic neck pain with radiation and on examination had stocking-glove decreased sensation to touch in all extremities especially from the elbow to the fingers. At the November 2005 VA examination, the Veteran complained of chronic neck and low back pain with radiation. On examination, strength was reduced in all extremities at 3/5 to 4/5. Deep tendon reflexes were absent except for the biceps which were 1+ bilaterally. Plantar responses were not elicitable. Sensation to monofilament was absent in the fingers. Sensation to pinprick was reduced in a stocking distribution. Sensation to pinprick was absent in the lower extremities and in the left upper extremity. In an August 2006 treatment records from Potomac Valley Orthopedic Associate, after noting the Veteran's complaints regarding low back and cervical spine pain, lost motion, and radiculopathy as well as after a review of his most recent MRIs, it was noted that while examination showed diminished reflexes at 1/5 and 2/5 in the extremities, he had normal sensation and strength at 5/5 in all extremities. At the July 2008 VA examination and in the February 2009 addendum, the Veteran complained of constant pain with weakness radiating down both upper and lower extremities. On examination, he had left shoulder weakness at 4/5, absent reflexes, and weakness of the gastrocnemius muscles bilaterally at 4+/5. It was opined that he had moderate lumbar radiculopathy as well as moderate right and left upper extremity radiculopathy. Other medical records generated during the pendency of the appeal record complaints and/or treatment for low back and neck pain and tenderness. They also reveal evidence of reduced motion, radiating pain to the extremities, and decreased sensation. a. The Old Criteria As reported above, 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) provided a maximum 60 percent rating for intervertebral disc syndrome manifested by "pronounced" symptoms which was defined as persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. As to the low back disability from May 12, 1996, to September 23, 2002, the Board notes that it was rated as 60 percent disabling during this time period, which is the maximum available rating. Accordingly, it is a legal impossibility for him to have received a higher rating for this period of time under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Therefore, the claim for a higher evaluation for his low back disability from May 12, 1996, to September 23, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002), is denied. Hart, supra; Fenderson, supra. As to the cervical spine disability from May 12, 1996, medical records generated during this time, included Dr. Moskowitz's records and the November 2005 and February 2009 VA examination reports, recorded complaints and/or treatment for cervical spine pain and tenderness, along with greatly reduced motion, radiating pain to the upper extremities, decreased sensation with it being absent to pinprick in the left upper extremity, decreased strength, and/or absent or almost absent deep tendon reflexes. Moreover, Dr. Moskowitz opined that the Veteran had severe pain and significant numbness. However, Dr. Moskowitz also opined in July 1996 that the Veteran was doing "quite well" and in December 1997 that he could find no reasons for the Veteran's complains of pain and numbness. Moreover, the August 2006 examination conducted by Potomac Valley Orthopedic Associate showed normal sensation and strength in all extremities. Additionally, the record did not show muscle spasms or wasting. Furthermore, the July 2008 VA examiner characterized the Veteran's adverse neurological symptomatology as moderate. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Given the above adverse neurological symptomatology, the Board finds that even when considering functional limitation due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45 as well as by the Court in DeLuca, supra, that the Veteran's functional losses did not equate to "pronounced" intervertebral disc syndrome of the cervical spine under the old rating criteria. Consequently, the Board finds that a higher evaluation is not warranted under 38 U.S.C.A. § 4.71a, Diagnostic Code 5293 (2002). This is true from May 12, 1996, and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. As to the low back disability from September 23, 2002, medical records generated during this time, included the November 2005 and February 2009 VA examination reports, recorded complaints and/or treatment for low back pain and tenderness, along with greatly reduced motion, radiating pain to the lower extremities, decreased sensation with it being absent to pinprick, decreased strength, and/or absent deep tendon reflexes. However, the August 2006 examination conducted by Potomac Valley Orthopedic Associate showed normal sensation and strength in all extremities. Moreover, the record did not show muscle spasms or wasting. Furthermore, the July 2008 VA examiner characterized the Veteran's adverse neurological symptomatology as moderate. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Given the above adverse neurological symptomatology, the Board finds that even when considering functional limitation due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45 as well as by the Court in DeLuca, supra, that the Veteran's functional losses did not equate to "pronounced" intervertebral disc syndrome of the lumbar spine under the old rating criteria. Consequently, the Board finds that a higher evaluation is not warranted under 38 U.S.C.A. § 4.71a, Diagnostic Code 5293 (2002). This is true from September 23, 2002, and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. b. The New Criteria As reported above, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010) provides a maximum 60 percent rating for intervertebral disc syndrome if it is manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during a twelve month period. As to the low back and cervical spine disabilities from September 23, 2002, while the Veteran and/or his representative have claimed that his disabilities caused him to have to stay in bed for prolonged periods of time, the record on appeal is negative for objective evidence that either disability had bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during any twelve month period since 2002. Consequently, the Board finds that higher evaluations are not warranted for the Veteran's service-connected low back disability or his cervical spine disability under new 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010). This is true at all times from September 23, 2002, and therefore further consideration of staged ratings is not warranted. Hart, supra; Fenderson, supra. Neurological Symptomatology As reported above, Note 1 to 38 C.F.R. § 4.71a (2010), specifically provides for separate ratings for adverse neurological symptomatology caused by the Veteran's service connected low back disability and cervical spine disability provided the criteria for compensable ratings are met. However, a review of the record on appeal reveals that in an April 2009 rating decision the RO granted the Veteran service connection for the radiculopathy caused by his service connected low back disability and cervical spine disability in each of his upper and lower extremities and evaluated each extremity as 20 percent disabling. The Veteran did not appeal. See 38 C.F.R. §§ 20.200, 20.302(c) (2010) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case). Consequently, these issues are not before the Board. Id. Accordingly, the Board adjudication of the current appeal cannot consider higher evaluations for the separately service connected adverse neurological symptomatology caused by his service connected low back disability and cervical spine disability in his extremities. Extraschedular Considerations Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected low back disability and cervical spine disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disabilities is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." While a number of healthcare professionals have opined that the Veteran is 100 percent disabled and/or unemployable due to his many disabilities, the record does not show that the Veteran's service connected low back disability and/or cervical spine disability, acting alone, has required frequent hospitalizations. The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. In short, there is nothing in the record to indicate that the service-connected disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted Conclusion In reaching the above conclusions, the Board has also not overlooked the Veteran and his representative's written and oral statements in support of his claims for higher evaluations. However, the Board finds more competent the opinions by the medical experts at the VA examinations discussed above, regarding the severity of the claimant's adverse symptomatology, than any lay claims. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In adjudicating the current appeal for higher ratings, the Board has also not overlooked the Court's recent holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board notes that the Veteran is already in receipt of TDIU for the time period of May 12, 1996, to October 26, 1998. Thereafter, he is in receipt of a 100 percent schedular rating. The Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claims for higher ratings must be denied. ORDER The Veteran did not meet the criteria for higher evaluations for his low back disability at any time during the pendency of the appeal. The Veteran did not meet the criteria for a higher evaluation for his cervical spine disability at any time during the pendency of the appeal. REMAND As to the claims for higher evaluations for the bilateral knee disabilities, the Board most recently remanded these issues in March 2010 to provide the Veteran with a VA examination to obtain answers asked by the Court in its May 2007 Order. In this regard, the March 2010 Board remand specifically directed the RO/AMC to, among other things, "make arrangements with an appropriate VA medical facility for the Veteran to be afforded an orthopedic examination of the knees. The claims folders are to be provided to the examiner for review in conjunction with the examination." Moreover, the examiner was directed to "offer an opinion as to the degree to which this pain further limits flexion and extension in the right and left knee." However, while the Veteran was provided with a post-remand VA examination in November 2010, the examiner was not provided the claims folder and the examiner did not provide an opinion as to the degree to which pain further limited knee motions. See 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra. Therefore, the Board finds that another remand to obtain a VA examination that complies with the earlier remand directions is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). While the appeal is in remand status, the RO should also obtain and associate with the record any contemporaneous treatment records for the Veteran's bilateral knee disabilities that have not as yet been associated with the record. See 38 U.S.C.A. § 5103A(b) (West 2002). Accordingly, these issues are REMANDED to the RO for the following actions: 1. The RO should obtain and associate with the record any contemporaneous treatment records for the Veteran's bilateral knee disabilities that have not as yet been associated with the record. All actions to obtain the requested records should be documented fully in the claims files. 2. After undertaking the above development to the extent possible, the RO should make arrangements with an appropriate VA medical facility for the claimant to be afforded an examination of the knees by an orthopedist that has not previously examined the Veteran. The claims folders are to be provided to the examiner for review in conjunction with the examination and the report should note that it had been reviewed by the examiner. All indicated tests and studies deemed appropriate by the examiner, including x-rays, must be accomplished and all clinical findings should be reported in detail. In accordance with the AMIE worksheet for rating knee arthritis, the examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his knee disabilities. As to lost knee motion, in addition to any other information provided pursuant to the AMIE worksheet, the examiner must conduct complete range of motion studies of each knee, with specific citation to flexion and extension. a. If the Veteran complains of knee pain, the examiner must offer an opinion as to the degree on which this pain first appears on flexion and extension in the right and left knee. b. The examiner must also discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any additional limitation of flexion and/or extension. 3. Thereafter, the RO should readjudicate the claims. Such readjudication should take into account any lost motion caused by pain, whether separate ratings are warranted, in each knee, for lost flexion and extension, and whether "staged" ratings are appropriate. DeLuca, supra; Esteban, supra; VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-2004; Hart, supra; Fenderson, supra. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence received since the January 2011 SSOC, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs