Citation Nr: 1217469 Decision Date: 05/16/12 Archive Date: 05/24/12 DOCKET NO. 06-15 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent, for the service-connected low back disability, effective prior to May 5, 2010, and a rating in excess of 40 percent, effective from May 5, 2010. 2. Entitlement to an initial compensable rating, for the left lower extremity neurological manifestations of his service-connected low back disability, effective prior to May 5, 2010, and a rating in excess of 10 percent, effective from May 5, 2010. 3. Entitlement to an initial compensable rating for a right knee disability, effective prior to January 5, 2010, and a rating in excess of 30 percent, for a right knee disability, effective from January 5, 2010. 4. Entitlement to an initial rating in excess of 30 percent for diffuse degenerative changes, status-post instrumentation and fusion, from C3 to C7. 5. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU Rating). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran retired in June 1992 after 20 years of active duty. This matter comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for degenerative disc disease, L5-S1, and assigned a 10 percent rating, effective from August 16, 2004; granted service connection for degenerative disc disease of the left knee and assigned a 0 percent (non-compensable) rating, effective from August 16, 2004; and denied service connection for a right knee condition and for a neck injury. In February 2009, the Board remanded the claims for service connection for a right knee disability and for a neck disability, for an initial compensable rating for degenerative joint disease of the left knee, and for an initial rating in excess of 10 percent for degenerative disc disease of the low back, to the RO, via the Appeals Management Center (AMC), in Washington, DC, to ascertain whether the Veteran wanted a hearing, and to schedule the Veteran for a VA examination regarding the four issues on appeal. In response to a letter from the AMC, in April 2009, the Veteran indicated he did not want a BVA hearing. Further, in January 2010, the Veteran underwent a VA examination, which included an addendum dated in May 2010. Thus, the Board is satisfied that there has been substantial compliance with the remand directives set out in the February 2009 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that although service connection was initially granted for degenerative disc disease, L5-S1, it is clear that the Veteran's low back disability encompasses degenerative joint disease (arthritis) as well. The Board has, therefore, broadened the appealed claim to include to any and all low back disorders, rather than simply degenerative disc disease, based on the decision of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court found that in a claim for PTSD, where the record reasonably indicates the presence of another psychiatric disability, it must also be considered as a claim for the other psychiatric disability. The Court's rationale, in short, is that the Veteran cannot be held to a medical level of understanding of differences between various psychiatric disorders, and his claim for one psychiatric disorder must also be considered a claim for other psychiatric disability as well. The rationale behind Clemons is instructive and applicable here, and the issue on appeal is as stated on the first page, encompassing all low back disorders, to include degenerative disc disease and degenerative joint disease. By June 2010 rating decision, the RO granted service connection for diffuse degenerative changes, status-post instrumentation and fusion, from C3 to C7, and assigned a 30 percent rating, effective August 16, 2004, and granted service connection for a right knee condition, and assigned a 0 percent rating, effective from August 16, 2004, and assigned a 30 percent rating, effective from January 5, 2010. Additionally, in June 2010, the RO granted a 40 percent rating for degenerative disc disease, L5-S1, effective from May 5, 2010, and granted a 10 percent rating for degenerative disc disease of the left knee, effective from May 5, 2010. The Veteran was notified of this rating decision by letter from the RO dated in September 2010. In a written brief presentation, submitted in June 2011, the representative essentially expressed disagreement, on behalf of the Veteran, with the initial ratings assigned for diffuse degenerative changes, status-post instrumentation and fusion, from C3 to C7, and a right knee condition. As a statement of the case (SOC) has yet to be issued on those issues, the claims for higher initial ratings for the neck condition and a right knee condition must be remanded to the RO via the Appeals Management Center (AMC) so that an SOC may be issued to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). In Rice v. Shinseki, the Court held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the record (to specifically include the informal hearing presentation submitted in June 2011) raises assertions that the Veteran is unable to work due to service-connected disabilities. Therefore, the issue of TDIU is raised by the record, is part and parcel of the higher rating claims, and is therefore properly before the Board. See Rice v. Shinseki, supra. The Board also notes that in a memorandum dated in June 2010, the Appeals Management Center (AMC), in Washington, DC, advised that the following inferred issue (apparently inferred from the May 2010 VA examination report) required immediate attention by the RO: entitlement to service connection for bilateral upper extremity radiculopathies. As this issue has yet to be considered by the RO, it is referred to either the RO or the AMC for appropriate action. The issues of entitlement to higher initial ratings for diffuse degenerative changes, status-post instrumentation and fusion, C3 to C7, and for a right knee condition, and to a TDIU rating, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Resolving reasonable doubt regarding the degree of disability in favor of the Veteran, the competent and probative medical evidence of record demonstrates that effective prior to May 5, 2010, the orthopedic manifestations of the Veteran's service-connected low back disability have been manifested by complaints of severe chronic pain, limitation of range of motion, functional limitations, positive straight leg raising, and a finding of flexion limited to 20 degrees; there have been no allegations or findings of lumbar ankylosis. 2. Effective from May 5, 2010, the Veteran's low back disability, was manifested by constant low back pain, reports of radiating pain, limitation of motion, with pain at the end ranges of motion, findings comparable to favorable ankylosis, but no evidence of unfavorable ankylosis or incapacitating episodes having a total duration of six weeks or more during the past 12 months. 3. Resolving any doubt in the Veteran's favor, his service-connected low back disability has resulted in neurological symptoms in the left lower extremity, consistent with mild incomplete paralysis of the sciatic nerve. 4. Effective prior to May 5, 2010, the Veteran's degenerative joint disease of the left knee was manifested by complaints of pain and instability, however, objective evidence showed he had full range of left knee motion and negative Drawer and McMurray test results. 5. Effective from May 5, 2010, the Veteran's degenerative joint disease of the left knee, was manifested by complaints of pain and objective evidence of limitation of motion of the left knee from 95 degrees of flexion to 10 degrees of extension; however, objective examination showed no pain on active left knee motion, pain after repetitive motion, or crepitation, grinding, or instability. CONCLUSIONS OF LAW 1. Effective prior to May 5, 2010, the criteria for an initial rating of 40 percent for the service-connected low back disability, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2011). 2. Effective from May 5, 2010, the criteria for a 40 percent rating for the service-connected low back disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2011). 3. Affording the Veteran the benefit of the doubt, the criteria for a separate 10 percent evaluation for left lower extremity neurological manifestations have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2011). 4. Effective prior to May 5, 2010, the criteria for an initial compensable rating, for degenerative joint disease of the left knee, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2011). 5. Effective from May 5, 2010, the criteria for a rating in excess of 10 percent, for degenerative joint disease of the left knee, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court (Sup. Ct.) reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for increase, the VCAA requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2004 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. Since the appellate issues in this matter (entitlement to assignment of initial compensable/higher ratings) is a downstream issue from that of service connection (for which the August 2004 VCAA letter was duly sent), another VCAA notice is not required. VAOPGCPREC 8-2003. This appeal is from the initial ratings assigned with the grant of service connection. The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). The Veteran is exercising his right to appeal the rating assigned. In addition, the March 2006 statement of the case (SOC) properly provided the Veteran notice of the criteria for rating his low back and left knee disabilities, including what the evidence showed, and why the current ratings were assigned. The Veteran has had ample opportunity to respond and supplement the record. He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board also notes that in a letter dated in September 2010, the Veteran was advised by VA of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. He has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board therefore concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent VA examinations in 2005 and 2010. The Board notes that the 2010 VA examinations included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. Thus, the 2010 VA examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It therefore appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Private treatment records show that the Veteran received ongoing treatment, starting in 2001, from Dr. Santhanam, for his low back and left knee complaints. In October 2003, he complained of significant low back pain and he was very depressed and unable to ambulate. He was to continue taking Celebrex. In November 2003, he complained that his back pain was worse in the evening after increased activity. Examination of the back appears to limited range of motion and negative straight leg raising. In October 2004, he was seen for complaints of chronic low back pain and knee pain and examination of the back revealed no gross abnormalities in curvature of the spine. On VA examination in January 2005, it was noted that the Veteran had been suffering from degenerative joint disease of the left knee since 1978 when he injured his left knee after slipping and falling off a ladder. He complained of constant aching pain, but indicated that the symptoms did not cause incapacitation. He took Motrin as needed, and it was noted that there was no functional impairment or time lost from work due to his left knee condition. With regard to degenerative disc disease of the lumbar spine, he reported that this had existed since the 1970s, after he had a spontaneous onset of back pain after a slip and fall accident. Due to his lumbar spine condition, he reportedly suffered from constant pain at the neck and back that traveled to the legs, neck, and arms. He reported that the pain was aching and sharp in nature, and was at a level 8 (on the pain scale from 0 to 10). He reported that low back pain could be elicited by physical activity, and was relieved by rest and Motrin. He reported incapacitating episodes, as often as two times per year, lasting for two days, and that Dr. Robrie was the physician who recommended bed rest. It was noted that the functional impairment of the low back condition involved not being able to stand or walk for prolonged periods, but did not result in any time lost from work. Further, on VA physical examination in January 2005, the Veteran's posture was abnormal and stiff, and he refused to move his lumbar spine. The examiner indicated that the Veteran's gait was abnormal and stiff, with hysterical posturing, facial grimacing, and loud moaning. Examination of the feet did not show any signs of abnormal weight bearing, and he did not require an assistive device to ambulate. Examination showed that the general appearance of the left knee was within normal limits, and that the Drawer test and McMurray test were both within normal limits. Flexion of the left knee was to 140 degrees on flexion and to 0 degrees on extension. The left knee range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Examination of the thoracolumbar spine revealed complaints of radiating pain on movement, and the Veteran refused to perform any range of motion past neutral position - claiming severe pain. Muscle spasms was absent, and there was tenderness noted on examination, with tender to light touch. The examiner noted that there was symptom exaggeration. It was also noted that there was positive straight leg raising on the left and no ankylosis of the spine. Range of motion testing of the thoracolumbar spine revealed flexion to 20 degrees, and extension, lateral flexion, and rotation, all to 5 degrees, with pain at all end ranges of motion. The examiner noted that range of motion of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner also noted that there were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Neurological examination of the lower extremities revealed motor and sensory function were within normal limits, and left lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. Left knee x-ray findings were within normal limits, and the lumbar spine x-ray showed degenerative arthritis, but it was also noted that the x-rays were "limited" as the Veteran was reportedly unable to move. The examiner noted that there was no effect on the Veteran's occupation or his daily activities due to these conditions. In a letter dated in February 2005, Dr. Santhanam reported that the Veteran had been a patient since December 2001, and he had had a back injury in active military service and had chronic back pain for awhile. Dr. Santhanam indicated that the Veteran had to use NSAIDS on a chronic basis for the pain. In another letter dated in February 2005, Dr. Santhanam advised that the Veteran was under his care for severe arthritis of the back and neck and that the Veteran was therefore physically unable to attend jury duty. In a statement dated in April 2006, the Veteran reported that he had left side numbness from his left hip to his left foot which he felt was directly related to his back. He also reported he had a great deal of pain and instability in his left knee, daily; he could not stand or walk for any length of time, or run; and he had decreased range of motion in his left knee. Private treatment records show that in April 2006 the Veteran complained of low back and neck pain. In an MRI dated in May 2006, the impressions included L5-S1 degenerative disc disease; moderately severe posterior facet hypertrophy at all lumbar levels, most marked at L2 through S1 bilaterally; bilateral foraminal stenosis at L5-S1 level, which may or may not be significant; mild spinal stenosis at L4-L5 level; and no evidence of disk herniation or protrusion. In June 2006, the Veteran underwent left transforaminal epidural steroid injection. A private MRI report of the lumbar spine, dated in December 2009, showed that the Veteran presented with back pain and bilateral lower extremity radicular symptoms. The impression of L5-S1 was minimal central canal stenosis with moderate lateral recess narrowing bilaterally, secondary to disc bulging. On VA examination in January 2010, the Veteran reported he could walk 60 feet, but with great difficulty, and that most of his difficulty was due to balance issues and radiating pain due to his lower back and cervical spine issues. He used a front-wheeled walker and reported that this helped with all of his musculoskeletal issues. He also reported that he had episodes in the past 12 months where he had physician prescribed bed rest, and reported that due to his upper neck and lower back problems, he had difficulty doing most all activities of daily living, could not put on his shoes, and constantly lost his balance. He did not have a usual occupation, and was medically disabled. In the VA examination addendum report, dated in May 2010, it was noted that the VA examiner in January 2010 did not assess the severity of the Veteran's service-connected left knee and low back. Thus, a VA examination addendum was provided in May 2010. At that examination, the Veteran's left knee revealed no crepitation, grinding, instability, patellar abnormality, or meniscus abnormality. There was no objective evidence of pain on active motion of the left knee, pain following repetitive motion, or additional limitations after three repetitions of range of motion. Objective examination also revealed that left knee flexion was to 95 degrees and extension was limited by 10 degrees. The diagnosis was minimal degenerative joint disease, bilateral knees, and it was noted that this affected his usual daily activities. Objective examination of the spine showed that the spine was fixed in a flexed position, and thoraco-lumbar range of motion testing revealed flexion from 20 to 30 degrees, extension from -20 to -20 degrees, and both left and right lateral rotation and flexion were to 0 degrees. There was objective evidence of pain on active range of motion, and objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion. An x-ray report of the lumbosacral spine was noted. The diagnoses included moderate degenerative joint disease lumbosacral spine L1-S1; first-degree anterolisthesis of L4-5; disc bulging and spondylosis, S1, and it was noted that this affected his usual daily activities. In a letter dated in July 2010, Dr. Mann reported he had seen the Veteran for severe neck and low back pain since 2005, when Dr. Santhanam transferred out of state. Dr. Mann reported that the Veteran had a history of chronic lower back pain which radiated pain to the extremities, and that he had been given epidural steroid injections as early as 1992-1993, and as recently as July 2006. After providing details regarding the Veteran's MRIs in 2001, 2003, 2006, and 2009, Dr. Mann indicated that recent medical history proved that the Veteran's conditions of the lumbar section has increasingly shown more signs of central, foraminal, and multifactoral stenosis, effacement of the thecal sac, and narrowing. Additionally, Dr. Man opined that the Veteran was not able to do prolonged standing or walking more than five minutes, and had numbness in the left leg and arm, causing weakness and falling. It was also noted that the Veteran used a cane and walker, and also had been on permanent disability retirement since January 2007. III. Laws and Regulations Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Also, VA General Counsel held in VAOPGCPREC 9-98 after reiterating its holding in VAOPGCPREC 23-97 that pain as a factor must be considered in the evaluation of a joint disability with arthritis and that the provisions of 38 C.F.R. § 4.59 are for consideration. IV. Higher Initial Ratings for Degenerative Disc Disease, Low Back The Veteran's service-connected degenerative disc disease of the low back has been rated under Diagnostic Code (DC) 5243 for intervertebral disc syndrome, which permits 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 rating when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243. The Board also notes that there is an indication in the medical evidence that the Veteran's low back disability involves degenerative joint disease (arthritis) as well. However, for rating purposes, degenerative arthritis of the spine (DC 5242) is also rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. Finally, a rating of 60 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned for 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 40 percent evaluation will be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). 1. Rating in Excess of 10 Percent, Effective Prior to May 5, 2010 After reviewing the record and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the criteria for a 40 percent rating for the service-connected low back disability have been approximated, prior to May 5, 2010. 38 C.F.R. § 4.7. In that regard, the Board notes that private treatment records show that the Veteran was receiving ongoing treatment related to complaints of constant and chronic low back pain, which varied in severity. It appears clear, however, from his private doctor's letters and accompanying medical treatment records and MRI reports that his low back disability worsened during this period. Moreover, he underwent a VA examination in January 2005, on which the VA examiner found that he was exaggerating his symptoms. The VA examiner also noted that the Veteran refused to perform any range of motion past neutral, claiming severe pain. Thus, range of motion of the lumbar spine showed he had flexion to 20 degrees and other ranges of lumbar motion to 5 degrees. Although this may not be an accurate representation of the Veteran's range of lumbar motion at the time, his complaints at that time and other findings such as positive straight leg raising on the right and left, and the effects on his daily activities, coupled with the private treatment records, do support a finding that the Veteran's range of lumbar motion was severely limited by pain. Moreover, he reported incapacitating episodes, as often as two times per year, lasting for two days, where a physician recommended bed rest. Thus, the Board acknowledges that the range of motion findings for the Veteran's thoracolumbar spine are in question for this period of time, however, considering the finding in 2005 of lumbar flexion limited to 20 degrees due to pain, the functional limitations due to pain, and giving the Veteran the benefit of the doubt, it is the Board's judgment that the competent medical evidence supports the assignment of a 40 percent rating for the orthopedic manifestations of his service-connected low back disability, prior to May 5, 2010. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59; 38 Gilbert v. Derwinski, 1 Vet. App. 49 (1990); DeLuca v. Brown, supra. The neurological manifestations of his service-connected low back disability will be addressed below. In order to achieve an even higher rating prior to May 5, 2010, the evidence must demonstrate unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months. However, the competent evidence for that period of time fails to show either ankylosis of the thoracolumbar spine, or such incapacitating episodes with physician prescribed bed rest, or such episodes lasting for at least 6 weeks. Thus, a rating in excess of 40 percent is not warranted at any point during the appeal period prior to May 5, 2010. Fenderson v. West, supra. 2. Rating in excess of 40 percent, Effective from May 5, 2010 Turning to the claim for entitlement to a rating in excess of 40 percent, effective from May 5, 2010, and after reviewing the record in light of the applicable laws and regulations, the Board concludes that the Veteran's service-connected low back disability does not more nearly approximate the criteria for a rating in excess of 40 percent, effective from May 5, 2010. In that regard, from May 5, 2010, the competent evidence of record establishes that the Veteran's service-connected low back disability was manifested primarily by complaints of ongoing and chronic pain, radiating pain, and severe limitation of motion with pain. Although on the VA examination in 2010, the Veteran had some range of motion, his spine was noted to be fixed in a flexed position. However, in considering the above evidence and the record, the Board concludes that the Veteran's service-connected low back disability was not so severe as to cause incapacitating episodes of intervertebral disc syndrome of at least six weeks in duration during the past 12 months; moreover, unfavorable ankylosis of the entire thoracolumbar spine has not been shown. In reaching this conclusion, the Board has considered the overall disability picture demonstrated by the record, and has carefully considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59 as well as the holding in DeLuca, regarding functional impairment attributable to pain. Although the Veteran has had chronic complaints of low back pain, with limitation of motion and pain on end ranges of motion, the Board finds that the effects of pain reasonably shown to be due to the Veteran's service-connected low back disability have been contemplated by the 40 percent rating assigned, effective from to May 5, 2010. 38 C.F.R. § 4.71a, DC 5242, 5243. There is also no indication in record, that the Veteran's pain due to his service-connected low disability caused functional loss greater than that contemplated by the 40 percent rating assigned. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. For reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent, from May 5, 2010, for the orthopedic manifestations of his service-connected low back disability. Fenderson v. West, supra. The Board has also considered a separate rating for the Veteran's neurological manifestations resulting from his service-connected lumbar disability. The record reflects that the Veteran has had ongoing complaints of pain radiating into the left lower extremity. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. While review of the record details the Veteran's ongoing complaints of radiating pain, these records also show that sensation was intact, strength was normal, and reflexes were intact. Thus, giving the Veteran the benefit of any doubt, the Board finds that the overall disability picture presented by the evidence indicates no more than mild incomplete paralysis in the left lower extremity under the criteria found in Diagnostic Code 8520. The record reflects that the Veteran has consistently reported that his radicular symptoms affect his left lower extremity, and his subjective complaints regarding his left lower extremity recorded during the pendency of this appeal are essentially consistent with the objective evidence. Therefore, the Board finds that a separate 10 percent rating is warranted for the left, and a higher 20 percent rating is not warranted under Diagnostic Code 8520 as his radicular symptoms do not result in "moderate" incomplete paralysis. 38 C.F.R. § 4.6. Such disability is simply not objectively shown by the record. In conclusion, the preponderance of the evidence is against the claim for a rating in excess of 40 percent, for the orthopedic manifestations of the service-connected low back disability, from May 5, 2010, the benefit of the doubt provision does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. In addition, the Board also concludes that the evidence as a whole, with application of the benefit-of-the-doubt rule, supports the grant of a separate 10 percent rating, but no higher, for the neurologic manifestations of the Veteran's service-connected lumbar disability affecting his left lower extremity. The Board notes that in reaching this conclusion the benefit-of-the-doubt doctrine has been applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, supra. V. Higher Initial Ratings for Degenerative Joint Disease, Left Knee The Veteran degenerative joint disease of the left knee has been assigned disability ratings under DC 5010, which provides that traumatic arthritis is rated as for degenerative arthritis, and under DC 5261, for limitation of extension of the knee. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The appropriate diagnostic codes for range of motion of the knee are DCs 5260 and 5261. DC 5260 provides that a 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is assigned when flexion of the leg is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. Pursuant to DC 5261, a 10 percent rating is assigned when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. Full range of motion of the knee is from 0 degrees to 140 degrees in flexion and extension. 38 C.F.R. § 4.71, Plate II. 1. Initial Compensable Rating, Effective prior to May 5, 2010 Based upon review of the evidence dated prior to May 5, 2010, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for the service-connected left knee disability, at any time during the appeal period. On VA examination in January 2005, examination showed that the general appearance of the left knee was within normal limits, flexion of the left knee was essentially normal -- to 140 degrees on flexion and to 0 degrees on extension, and left knee range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Thus, without showing any limitation of motion, muscle spasm, swelling, or painful motion, the criteria for a compensable rating under DCs 5010, 5260, or 5261 have not been met or approximated. Further, with regard to DC 5257, the Board concludes that the competent evidence of record does not support a separate compensable rating for the left knee under DC 5257, based on slight recurrent subluxation or lateral instability. In that regard, there was no report of or finding of any instability of the left knee, and the Drawer and McMurray's tests were negative. Thus, the Board concludes that the competent evidence of record does not approximate a finding of slight subluxation or slight instability, as required for the assignment of a separate 10 percent evaluation under DC 5257, for the left knee. In summary, the Board finds that, based on the preponderance of the evidence, the criteria for compensable rating for the service-connected degenerative joint disease of the left knee, prior to May 5, 2010, have not been met at any time during the appeal period. Fenderson v. West, supra. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. 2. Initial Rating in Excess of 10 Percent, Effective from May 5, 2010 Based on the evidence of record, the Board concludes that a rating in excess of 10 percent for the service-connected degenerative joint disease of the left knee is not warranted at any point, effective from May 5, 2010. In that regard, the Board notes that on the VA examination in 2010, left knee flexion was to 95 degrees and extension was limited by 10 degree, and there was no objective evidence of pain on active motion of the left knee, pain following repetitive motion, or additional limitations after three repetitions of range of motion. The diagnosis was minimal degenerative joint disease, bilateral knees. Thus, the objective findings do not show or approximate left knee extension limited to 15 degrees, or flexion of the left knee limited to 30 degrees, nor is there comparable functional impairment of the left knee. While the Veteran has consistently complained of left knee pain, he has not exhibited significant atrophy, weakness, or other signs of deformity reflecting significantly greater knee impairment. The Board notes that the Veteran's functional impairment of the left knee, due to arthritis, is manifested by pain and some loss of range of motion. However, a higher rating based on functional impairment is not warranted, as the current 10 percent accounts for the limitation of function due to pain and, moreover, there was no objective evidence of pain on active motion of the left knee, pain following repetitive motion, or additional limitations after three repetitions of range of motion. The Board therefore finds that even with consideration of DeLuca, 38 C.F.R. § 4.40 and 4.45, the criteria for a rating in excess of 10 percent for the service-connected left knee disability, under DCs 5010, 5260, or 5261 have not been met or approximated. Further, with regard to DC 5257, the Board concludes that the competent evidence of record does not support a separate compensable rating for the left knee under DC 5257, based on slight recurrent subluxation or lateral instability. In that regard, although the Veteran complained of instability, on objective examination there was no finding instability. Thus, the Board concludes that the competent evidence of record does not approximate a finding of slight subluxation or slight instability, as required for the assignment of a separate 10 percent evaluation under DC 5257, for the left knee, effective from May 5, 2010. In summary, the Board finds that, based on the preponderance of the evidence, the criteria for a rating in excess of 10 percent for the service-connected degenerative joint disease of the left knee, effective from May 5, 2010, have not been met at any time during the appeal period. Fenderson v. West, supra. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. V. Extraschedular Consideration In addition, the Board notes that neither of the Veteran's service-connected disabilities considered herein warrant referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In the present case, the record reflects that the Veteran has had some sort of medical disability retirement and is no longer working. However, as explained above, the rating criteria for the Veteran's service-connected back and left knee disabilities reasonably describe this disability levels and symptomatology, and provide for a greater evaluation for more severe symptoms for the back and knees. For these reasons, the disability pictures are contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Therefore, referral for the assignment of an extraschedular disability rating is not warranted. ORDER Effective prior to May 5, 2010, an initial 40 percent rating, for the service-connected low back disability, is granted; subject to the regulations regarding payment of monetary benefits. Effective from May 5, 2010, a rating in excess of 40 percent, for the service-connected low back disability is denied. A separate 10 percent rating for the left lower extremity neurologic manifestations of the Veteran's service-connected low back disability is granted; subject to the regulations regarding payment of monetary benefits. Effective prior to May 5, 2010, an initial compensable rating, for degenerative joint disease of the left knee, is denied. Effective from May 5, 2010, a rating in excess of 10 percent, for degenerative joint disease of the left knee, is denied. REMAND As explained in the introduction, the record reflects that the Veteran has filed what appears to be a notice of disagreement with the June 2010 rating decision in which the RO granted service connection for diffuse degenerative changes, status-post instrumentation and fusion, from C3 to C7, and for a right knee condition, and assigned disability ratings as set out above. Pursuant to Manlincon v. West, supra, the Veteran must be provided with an SOC regarding that issue, so that he has the opportunity to perfect this appeal. Only if the appeals are perfected should the issues be returned to the Board for appellate review. Further, as noted above, the Board finds that the record has raised an inferred claim for a TDIU rating. Rice v. Shinseki, supra. Due to the fact that the Veteran has not received appropriate notice regarding this issue, and that this issue is inextricably intertwined with the other issues on appeal, the Board finds that the claim for a TDIU rating must be remanded to the RO for further development. Accordingly, the case is REMANDED for the following action: 1. With regard to the claim for a TDIU rating, ensure VCAA compliance and afford the Veteran the opportunity to submit additional argument and evidence on the claim. 2. Make a determination as to whether a VA examination/opinion is necessary for the claim for a TDIU rating. If deemed necessary, schedule the Veteran for an appropriate VA examination to determine employability. The examiner should review the evidence of record and provide an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities alone (and without regard to age or non-service-connected disabilities). 3. After the above is completed, as well as any other development deemed necessary, adjudicate the claim for a TDIU rating. If any determination is adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. 4. Additionally, the Veteran and his representative should be provided an SOC on the issues of: (1) entitlement to an initial rating in excess of 30 percent for diffuse degenerative changes, status-post instrumentation and fusion, C3 to C7, and (2) entitlement to an initial compensable rating, effective from August 16, 2004, and a rating in excess of 30 percent rating, effective from January 5, 2010, for a right knee condition. If, and only if, a substantive appeal is filed as to each of these issues, then the issues should be returned to the Board for review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs