Citation Nr: 1301588 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-17 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for bursitis of the right knee. 2. Entitlement to an initial disability rating in excess of 10 percent for bursitis of the left knee. 3. Entitlement to an initial disability rating in excess of 10 percent for residuals of a right hip injury. 4. Entitlement to an initial disability rating in excess of 10 percent prior to July 21, 2010, and in excess of 20 percent thereafter for residuals of a low back injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had active service from March 1982 to September 1982, from November 1984 to October 1988, and from August 1992 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in North Little Rock, Arkansas. The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in December 2009. A written transcript of this hearing is of record. In June 2010 the Board entered a decision denying service connection for an abnormal ECG, or any underlying cardiovascular disorder, and denied an effective date prior to December 1, 2007 for additional compensation for a dependent child based upon school attendance. At such time, the Board remanded the Veteran's initial rating claims for further development. While on remand, a May 2011 rating decision granted an increase from 10 percent for the service-connected low back injury residuals (which had been made effective the date of the grant of service connection on October 1, 2004) to 20 percent effective July 21, 2010 (date of VA examination). Therefore, this issue has been characterized as shown on the first page of this decision. The Board observes that the Veteran submitted additional evidence consisting of private treatment records referable to her bilateral knee and right hip disabilities after the issuance of the May 2011 supplemental statement of the case without a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Moreover, as his claims are being remanded, the AOJ will have an opportunity to review all the submitted documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The issues of entitlement to higher initial disability ratings for bursitis of the right knee, bursitis of the left knee, and residuals of a right hip injury are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Prior to July 21, 2010, the residuals of a low back injury were manifested by flexion to greater than 60 degrees and combined range of motion of the lumbar spine to greater than 120 degrees, and there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, neurological impairment, or incapacitating episodes. 2. Since July 21, 2010, the residuals of a low back injury are manifested by flexion to greater than 30 degrees and combined range of motion of the lumbar spine to greater than 120 degrees, without neurological impairment or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent prior to July 21, 2010, and in excess of 20 percent thereafter for residuals of a low back injury are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, 4.66, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran's claim for a higher rating for low back disability arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with respect to the Veteran's low back claim. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of private treatment and VA examinations. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in December 2004, March 2006, and July 2010 in conjunction with the claim on appeal. Neither the Veteran nor her representative has alleged that such are inadequate for rating purposes. In this regard, in letters dated in July 2010 and April 2012, the Veteran has contested the adequacy of the July 2010 VA examination with respect to assessing the severity of her service-connected disabilities of the knees and right hip. However, she has not asserted that the July 2010 VA examination was in any manner deficient or inadequate for rating her service-connected low back disability. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected back disability as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. The Veteran was also provided an opportunity to set forth his contentions during a Board hearing before the undersigned in December 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the December 2009 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the nature and severity of the Veteran's back disability, to include the impact it has on her daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. Moreover, while the hearing discussion revealed any evidence that might be available that had not been obtained, the Board remanded the case in June 2010 in order to obtain outstanding records and to provide her a contemporaneous VA examination so as to assess the current severity of her back disability. Therefore, the Board finds that the undersigned complied with the requirement of Bryant. The case was remanded in June 2010 in order to provide the Veteran an opportunity to identify all current treatment for her service-connected disabilities, and after obtaining any necessary authorizations, attempts were to be made to obtain all identified treatment records. In response, the Veteran has submitted private treatment records from the OrthoArkansas clinic and treatment records from the Carfagno Family Practice Clinic. These private clinical records show that she was treated and evaluated for disabilities of the knees and hip. However, these records do not reflect treatment or evaluation of her service-connected low back disability. Accordingly, these additional private clinical records are not relevant to the matter of the evaluation of the service-connected low back disability. Also, pursuant to the 2010 remand, the Veteran was afforded a VA examination in July 2010. Therefore, the Board finds that there has been substantial compliance with the June 2010 remand orders. Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998)). Chest v. Peake, No. 2007-7303, slip op (July 21, 2008 Fed. Cir.); 2008 WL 2796362 (Fed.Cir.); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim. 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, 16 Vet. App. 183 (2002). Background A private April 2004 lumbar MRI revealed mild broad-based disc bulging from L3 to S1; multi-level degenerative changes in the facet joint, notably from L3 to S1 with associated encroachment upon the neural foramina, bilaterally, at L4-5 and L5-S1; but no evidence of focal disc herniation and no fracture or subluxation. In a July 2004 report Dr. J. M. reported that the Veteran had persistent right low back pain since service, despite physical therapy. On physical examination, straight leg raising was not uncomfortable at 90 degrees but stressing her right sacroiliac region and iliolumbar regions was painful. Her sensory patterns were preserved and her muscle bulk was good. She had point tenderness at the right iliolumbar angle and sacroiliac joint. Stressing these regions caused a great deal of pain on the right side but little, if any, on the left side. She had free range of motion of her back, but with pain on flexion. She had a rather significant increase in lumbar lordosis which appeared to be correctable in view of her capability of forward bending. Lateral bending was done freely. No definite muscle spasm could be palpated in the lumbar paraspinous muscles. An MRI showed "certainly" some bulging mostly at L4-5 but was seen only on one view and not other views. There was also quite a bit of disc degeneration, especially at L4-5, and to a lesser extent at L5-S1, and little if any elsewhere. It was felt that she had pseduoradiculopathy involving primarily the iliolumbar angle musculature. She was to be given a trial use of a TENS unit. The diagnoses were spinal enthesopathy, and lumbar degenerative disc disease. On VA general medical examination in December 2004 the Veteran's claims file was available for review. She had no symptoms suggestive of sciatica-type pain. On physical examination, straight leg raising did not cause back pain. Deep tendon reflexes were intact. The Veteran was able to do heel-to-toe walking. There was no tenderness over her lower back. Low back flexion was to 90 degrees, extension was to 25 degrees, lateral flexion in each direction was to 35 degrees, and rotation in each direction was to 65 degrees. She had no muscle spasm. The pertinent diagnosis was residuals of a low back injury and low back pain with normal examination except for hip and groin pain. It was noted that she had a normal gait and stance. She did not use her back brace and did not use any aid for ambulation. Lumbosacral X-rays revealed minimal spurring but the disc spaces were well preserved. There were mild arthritic changes in the facet joints of the lower lumbar and lumbosacral area, bilaterally. An April 2005 clinical record of the OrthoArkansas, a private medical facility, reflects that a lumbar MRI revealed some degenerative disc disease. It was noted that the Veteran had had therapy for her hips and back. She walked with a fairly normal gait and had good coordination and balance, but seemed to have some pain. Straight leg raising was negative, bilaterally, and sensation to light touch was intact in both lower extremities. She had no real tenderness of the lumbar spine. Reflexes were symmetric and equal at the knees and ankles. Dr. J. M. reported in February 2005 that the Veteran's use of a TENS unit had benefited her to some extent. On examination she had a normal gait. Straight leg raising was to 90 degrees. Her reflexes were active and symmetrical. There was tenderness at the right iliolumbar angle. She had free range of motion of her back and there did not appear to be any obvious sensory deficit. She was to continue using a TENS unit at home. In April 2005 it was noted that she continued to complain of low back pain on each side. A TENS unit had provided some help and she had benefited from Lidoderm patches but not as much as she had hoped. On examination her gait was normal. Straight leg raising was to 90 degrees. Her reflexes were active and symmetrical. There was no evidence of atrophy, "atony" or fasciculations in any muscle groups and there did not appear to be any sensory alteration. She had free motion of her back but was uncomfortable in the left iliolumbar angle, with not much, if any, in the right angle. A new patient evaluation of the Veteran at the Arkansas Arthritis Clinic in June 2005 found that on examination she had normal straight leg raising, bilaterally. Deep tendon reflexes were 2+ in the lower extremities. She had normal proximal and distal muscle strength. She had full range of motion of all joints. On VA examination in March 2006 it was reported that the Veteran had some stiffness in her low back. On physical examination she was able to get in and out of a chair without difficulty. She walked with a normal gait and had normal heel-to-toe walk. It was commented that she used a special mattress because of hip pain. A July 2008 lumbar MRI at a private facility revealed multi-level annular bulges in the lower thoracic and mid-lumbar spine; moderate annular bulge at L4-5 associated with mild central canal and bilateral foraminal stenosis, and marked annular bulge with central predominance at L5-S1 with mild central canal stenosis and mild bilateral foraminal stenosis. Clinical records of June 2008 of the Carfagno Family Practice Clinic reflect that the Veteran had a flare-up of her chronic low back pain. The pain could radiate into her right leg, to her knee. She usually responded to Advil but it was not working well now. On examination she had some stiffness and pain in the low back. Her range of motion was about 80 percent of normal. She had no muscle wasting of her extremities. She had symmetric strength and function other than an inability to forcibly dorsiflex her right great toe. She had symmetric reflexes and straight leg raising was negative. Sensation was symmetric in her lower extremities. The assessment was chronic low back pain. In September 2008, she again had a flare-up of low back pain, which at times caused trouble sleeping. The pain could radiate with some numbness and tingling down her hamstring, all the way into her foot. It tended to alternate between the right and left sides. On examination straight leg raising was negative. Her muscle mass was symmetric. Her lumbar and sacroiliac muscles were minimally tender. Lower extremity neurovascular examination was normal. The assessment was chronic low back pain with the "alternating paresthesias [being] somewhat perplexing." At the December 2009 hearing the Veteran testified that as to her low back, some days she could not get out of bed. Page 7 of the transcript (T7). She had spasms and a private physician had recommended an injection into her low back. She had bought a special mattress, memory foam mattress, and she had been told to do Pilates exercises, which had helped sometimes on bad days. She took pain medication. She had missed days at work, and sometimes left work early, to attend medical appointments. T 8. She had problems bending over and picking up stuff, due to her knees and back. T 9. She had undergone physical therapy. She had difficulty sleeping due to flare-ups and took Lunesta to help her sleep. T 10. In the past she had taken Tylenol PM or Advil PM. Her back even hurt when sitting. She had abnormal sensations down her legs. T 11. He had numbness in her feet, usually at night and when she awoke in the morning. She also had a lot of foot cramps. She thought that these symptoms were due to her low back, and a physician had recommended a neurological evaluation, to include nerve conduction testing. T 12. She was treated by civilian physicians rather than VA physicians. T 21. On VA orthopedic examination conducted on July 21, 2010, the Veteran's claims file was reviewed. It was noted that she had been employed until December 2009 and was now searching for employment. She complained of flare-ups of low back symptoms which had necessitated missing a day or two of work several times a year because of back pain and stiffness and trouble getting out of bed. This had led her to search for better mattresses due to her low back problems. He had had physical therapy when on active duty but none in recent years. She had not had back surgery and did not use a back brace, or any assistive device to ambulate. Her back had had a more profound effect upon her occupation than had her knees and hip. Her back was more prone to flare-ups than her knees and hips. She did not have radiculopathy. She had used Ibuprofen in the past but now used Meloxicam and Tramadol. On physical examination, the Veteran's gait and posture were normal. She stood erect. There was no tenderness of her lumbar spine and no muscle spasm. Straight leg raising was negative, bilaterally. There was no foot drop, motor weakness or sensory deficit. Despite reflexes being 2+ at the knee and ankles, symmetrically, there was a drop off in forward flexion from 90 degrees, to 70 degrees, to 40 degrees on three attempts, being limited by pain at each point, respectively. She had no weakness, fatigability or loss of coordination. She did not fall, faint or become weak. Lateral flexion was to 30 degrees to the right and to the left on all three attempts, limited by pain at that point on each occasion but there was no weakness, fatigability or loss of endurance on lateral bending or rotation. All rotation was to 30 degrees, limited by pain at the end point. She did not limp. The pertinent diagnosis was a chronic low back strain. The examiner commented that the Veteran's flare-ups were mostly confined to her back, whereas her daily discomfort was mostly in her knee and hip. In the absence of flare-ups, her back was in good condition. The Veteran had no radiation of pain and did not use an assistive device. The condition had interfered with her past occupation. There was a drop off in range of motion testing upon repetition, as described. She had flare-ups and there was evidence of painful motion without spasm, weakness or tenderness. Sensory and motor examinations were normal. She had one episode of incapacitation in the past 12 months when she had been working but it had not required hospitalization. Lumbosacral X-rays, when compared to X-rays in 2004, revealed her disc spaces were normally maintained and there was no vertebral fracture. Mild anterior spurring was noted in the mid and lower lumbosacral spine. General Rating Principles Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The service-connected low back injury residuals have been rated as lumbosacral strain, under 38 C.F.R. § 4.71a, DC 5237, which provides for evaluation under a General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. A 10 percent rating is assigned if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degree; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating 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 is warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome can also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Such provides that a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula For Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Board finds that, under the General Rating Formula, prior to July 21, 2010, even considering pain and functional loss due to pain and limited flexion, the findings of range of motion testing do not more nearly approximate or equate to limitation of forward flexion of the lumbar spine to 60 degrees or less, and her combined range of motion was, as found on VA examination in December 2004, 315 degrees. Significantly, there is also no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Furthermore, as of July 21, 2010, the evidence fails to demonstrate forward flexion of the thoracolumbar spine of 30 degrees or less, even considering pain and functional loss due to pain and limited flexion. Specifically, in this regard, the July 2010 VA examination revealed that on repetition of range of motion the Veteran had flexion to only 40 degrees on her third attempt, being limited by pain. Even using the worse case measurement of flexion, and despite there being no measurement of range of motion in extension, her combined range of motion was 160 degrees. Moreover, as relevant to both periods on appeal, there is no evidence of favorable or unfavorable ankylosis. In this regard, at no time has the Veteran been shown to have bony fixation or ankylosis of the thoracic or lumbar segments, or both, of the spine and it beyond dispute that she has never had complete ankylosis of the entire spine. With respect to neurologic abnormalities pursuant to Note (1) of the General Rating Formula, there has been no objective finding of neurological abnormalities associated with the Veteran's low back disability to warrant a separate compensable rating for any point during the appeal period. Even though the Veteran has reported abnormal sensation and radiating pain, there is no objective evidence of radiculopathy. In fact, a private physician specifically noted that the Veteran's complaint of radicular symptoms alternating between the right lower extremity and the left lower extremity was "perplexing." More to the point, the clinical evidence prior to the recent July 21, 2010, VA rating examination did not confirm the presence of any motor impairment or muscle wasting which would confirm the presence of active radicular symptomatology. In fact, despite complaints of radicular symptoms, repeated examinations over the years have found no confirmatory clinical evidence of radiculopathy. Specifically, she has not had diminished reflexes in her lower extremities nor is there evidence of sensory deficits in a dermatomal pattern nor evidence of motor impairment. Thus, a rating for neurological symptoms, separate from a rating for the orthopedic component of the service-connected low back disorder is not warranted. A higher rating is also not warranted under the criteria for intervertebral disc syndrome as there has been no evidence of incapacitating episodes, i.e., bed rest prescribed by a physician. In this regard, while the Veteran reported being impaired and missing time from work due to incapacitating episodes, there is no evidence of bed rest having been prescribed by a physician. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of her low back disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected low back disability; however, the Board finds that her symptomatology has been stable throughout the appeal period. Therefore, assigning additional staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected low back disability with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's disability ratings contemplate her functional limitations caused by her low back disability. There are no additional symptoms of her low back disability that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of her service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the July 2010 VA examiner noted that the Veteran had been gainfully employed until December 2009 and, at the time of examination, was searching for a job. Additionally, in an April 2012 statement, the Veteran indicated that, she was currently working at the Central Arkansas Veterans Healthcare System. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. As the preponderance of the evidence is against the claim An initial disability rating in excess of 10 percent prior to July 21, 2010, and in excess of 20 percent thereafter for residuals of a low back injury, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See U.S.C.A. §§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial disability rating in excess of 10 percent prior to July 21, 2010, and in excess of 20 percent thereafter for residuals of a low back injury is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's increased rating claims for her bilateral knee and right hip disabilities so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board observes that the Veteran's claims were previously remanded so as to afford her a VA examination so as to assess the current severity of her bilateral knees and right hip disabilities. Such examination was conducted in July 2010. However, in letters dated July 2010 and April 2012 the Veteran contested that adequacy of the July 2010 rating examination as to the assessment of the severity of her service-connected disabilities of the knees and right hip. In this regard, she reported that the examiner did not perform range of motion testing on her knees or hip. Furthermore, she submitted additional private treatment records detailing continued treatment for such disabilities that suggest a possible worsening in severity. For example, such reflect that she had an injection of Synvic into her left knee in January 2012. Therefore, as a result of the alleged inadequacies of the July 2010 VA examination and the submission of evidence indicating a possible worsening of the disabilities, the Board finds that the Veteran should be provided another VA examination so as to assess the current severity of her bilateral knees and right hip disabilities. Additionally, while on remand, the Veteran should be given another opportunity to identify or submit any additional treatment records referable to her bilateral knee and right hip disabilities. Thereafter, all identified records should be obtained for consideration in her appeal. Finally, as indicated in the Introduction, additional private treatment records relevant to the Veteran's claims were associated with the claims file subsequent to the May 2011 supplemental statement of the case. Therefore, upon readjudication of the Veteran's claims, all evidence received since the May 2011 supplemental statement of the case should be considered. 38 C.F.R. § 19.31. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide any additional and relevant private medical records that had not already been submitted which may pertain to her claims for higher initial ratings for her bilateral knee and right hip disabilities. Also, inform her that if desired VA will attempt to obtain such records on her behalf upon execution and return of needed authorizations or release forms. If such forms are executed and returned, take the appropriate steps to obtain such records from the aforementioned clinical sources or any additional sources which the Veteran may identify. 2. After obtaining any outstanding treatment records, schedule the Veteran for a VA orthopedic examination to determine the current severity of her service-connected disabilities of the bilateral knees and right hip. The Veteran's claims file should be available to and reviewed in conjunction with the examination. All indicated tests, studies and X-rays should be performed. The report should set forth all objective findings regarding each knee and the right hip, including complete range of motion measurements. The examiner must indicate whether there is any recurrent subluxation or lateral instability in either knee. If there is subluxation and/or lateral instability, the examiner should characterize its degree. In this regard, the terms "severe," "moderate," and "slight" are the preferred adjectives. The examiner should comment on the existence of any functional loss due to pain, weakened movement, excess fatigability, incoordination, and painful motion or pain with use of the bilateral knees and right hip, and the extent and nature of any additional impairment from any of these, as well as during any flare-ups. Also, in light of the contention that the Veteran's Baker's cyst is a primary or at least significant cause of pain and dysfunction, the examiner should comment upon the effect that any Baker's cyst may have upon the Veteran's overall function or dysfunction of either or both knees. 3. Then After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's initial rating claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the May 2011 supplemental statement of the case. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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 U.S. 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. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs