Citation Nr: 1304548 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-04 876 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury, prior to March 20, 2012. 2. Entitlement to a rating in excess of 40 percent for post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury, from March 20, 2012. 3. Entitlement to a rating in excess of 10 percent for arthralgia of right knee with degenerative joint disease secondary to injury. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to July 1963. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2005 rating decision in which the RO in Columbia, South Carolina, inter alia, denied ratings in excess of 20 and 10 percent, respectively, for the Veteran's lower back and right knee disabilities. In December 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2008. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Winston-Salem, North Carolina, which certified the appeal to the Board. In August 2009, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. In January 2010, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the RO continued to deny each claim (as reflected in a May 2011 supplemental statement of the case (SSOC)) and returned these matters to the Board for further appellate consideration. Again, in January 2012, the Board remanded the claims on appeal to the RO, via the AMC, for compliance with its prior remand. After completing the requested development, the AMC increased the rating for the Veteran's service-connected low back disability to 40 percent, effective March 20, 2012 (as reflected in a September 2012 rating decision and SSOC), continued to deny the claim for an increased rating for the right knee, and returned the appeal to the Board for further consideration. Although the RO granted a higher rating during the pendency of the appeal for the Veteran's service-connected low back disability, inasmuch as higher ratings for this disability were available, both before and after March 20, 2012, and the Veteran was presumed to seek the maximum available benefit for a disability, the Board characterized the appeal pertaining to evaluation of his back disability as encompassing the first two matters set forth on the title page. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's appeal has been advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA) associated with the Veteran's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the issues of entitlement to a rating in excess of 10 percent for arthralgia of right knee with degenerative joint disease secondary to injury, and entitlement to a TDIU are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, as previously noted in the January 2012 remand, in the November 2011 written brief presentation, the Veteran's representative raised the issues of service connection for migraines and for a mental disorder. Moreover, in a December 2012 written brief presentation, the Veteran's representative also raised the issues of service connection for a bilateral foot disability, leg length discrepancy, left knee disability, coronary artery disease, diabetes and gastroesophageal reflux disease. These claims for service connection have not yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Since the March 31, 2004 claim for increase, the Veteran has suffered from severe pain and limited motion equivalent to range of motion findings of at least 30 degrees flexion. 3. At no time pertinent to the Veteran's March 2004 claim for increase has the Veteran's service-connected post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury, been manifested by ankylosis, incapacitating episodes of at least six weeks over the past 12 months, or any separately ratable neurologifal manifestations of low back disability. 4. The schedular criteria have been adequate to rate the disability under consideration at all points pertinent to this appeal. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 40 percent, but no higher, rating for post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury, from March 31, 2004, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Codes (2012). 2. The criteria for a rating in excess of 40 percent for post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury at any time since March 31, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71, 4.71a, General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in April 2004, October 2004 and April 2005 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The December 2005 RO rating decision reflects the initial adjudication of the claim after issuance of these letters. Post rating, February 2010 and January 2012 letters provided the Veteran notice of what information and evidence was needed to substantiate the claim for an increased rating, to include the rating criteria for the Veteran's back disability, as well as general information pertaining to VA's assignment of disability ratings and effective dates, and the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of these letters, and opportunity for the Veteran to respond, the September 2012 SSOC reflects the most recent readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of these notices. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of VA treatment records, and the reports of October 2007, April 2010, March 2011 and March 2012 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's August 2009 Board hearing, as well as various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with any matter herein decided is required. The Board recognizes that the Veteran's representative pointed out in its December 2012 brief that VA treatment records have not been associated with the claims file since January 2008, and that the most recent treatment record is dated from November 2005. However, the representative also clearly indicated that the Veteran primarily sought treatment for unrelated disorders at the VA. Further, at the Board hearing, the Veteran indicated that he had not received more recent treatment at the VA for his low back disability. Moreover, as discussed further below, the RO/AMC requested information from the Veteran in February 2010 and January 2012 concerning any additional medical treatment to which the Veteran did not respond. Accordingly, it does not appear that there are any outstanding VA treatment records pertinent to the issue on appeal. The Board notes that the record includes a Social Security Administration (SSA) decision awarding disability benefits to the Veteran in August 1989. Although the remaining SSA records have not been associated with the claims file, as these records would pertain to treatment done prior to 1989, they are not relevant to the current appeal because the current level of disability since the date of claim is the primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Moreover, there has been no argument that the SSA records are pertinent to the claim being adjudicated in this decision as to require that additional adjudication resources be expended to obtain these records. See 38 U.S.C.A. § 5103A(b),(c); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). As noted, the Board sought further development of the claim in January 2010 and January 2012. With respect to the issue being decided herein, in January 2010, the Board instructed the RO/AMC to request any additional information concerning medical treatment. Thereafter, the RO/AMC was directed to arrange for the Veteran to undergo VA examination after all the pertinent records were associated with the claims file to determine the current severity of the Veteran's low back disability and any associated neurological abnormalities. In January 2012, the RO/AMC was again instructed to request any information concerning medical treatment from the Veteran and afford him another VA examination. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). As noted above, in February 2010 and January 2012, the RO/AMC sent letters to the Veteran requesting information concerning medical treatment, to which the Veteran did not respond. The Veteran was also afforded VA examinations in April 2010, March 2011 and March 2012. As discussed further below, the Board finds that these examinations are sufficient for rating purposes. Nevertheless, the examiners were unable; however, to provide clear opinions as to the additional limitation of back motion due functional factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). However, the absence of these findings is not prejudicial to the Veteran. As discussed below, the Board is granting the maximum rating for limitation of back motion and a higher rating would require ankylosis. Functional factors are not for consideration where, as in this case, the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Accordingly, the Board finds that the RO/AMC have substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either of the claims herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on any claim. Any such error is deemed harmless and does not preclude appellate consideration of either of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on 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 ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart, 21 Vet. App. at 509-10. In this case, the Veteran filed a claim for an increased rating for his service-connected post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury, then rated as 20 percent disabling, in March 2004. As noted above, in a September 2012 VA rating decision, the RO increased the Veteran's rating for his service-connected low back disability to 40 percent disabling, effective March 30, 2012. Thus, pertinent to the Veteran's March 2004 claim for increase, the RO, via the AMC, has awarded staged ratings for the Veteran's service-connected lumbar spine disability: 20 percent prior to March 30, 2012, and 40 percent from that date. Hence, consistent with Hart, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further, or other, staged rating of the disability under consideration is warranted. For the period prior to March 30, 2012, the RO assigned the rating for the Veteran's lumbar strain pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (effective prior to September 26, 2003). However, effective September 26, 2003, the criteria for rating disabilities of the spine are actually set forth in a General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula provides for assignment of a rating of 20 percent when forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is 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 rating is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). Normal ranges of motion or the thoracolumbar spine are forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees. 38 C.F.R. § 4.71, General Rating Formula, Note 2, and Plate V. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Again, the Veteran filed a claim for an increased rating on March 31, 2004. The RO scheduled him for a VA examination in September 2004, but he failed to report and the RO denied his claim in December 2004. However, within one year of this determination, in March 2005, the Veteran filed a statement asserting that he had missed the examination due to having to attend his brother's funeral. He also submitted additional evidence. As good cause had been shown for missing the VA examination, the RO scheduled him for another examination in October 2005. See 38 C.F.R. § 3.655(a). Unfortunately, the Veteran again failed to report and the RO denied the claim in the December 2005 rating decision, which is currently on appeal. Nevertheless, given that good cause was shown for missing the initial examination and that additional evidence was submitted within one year, the Board finds that the claim has been ongoing since the March 31, 2004 filing. See 38 C.F.R. § 3.156(b). The Veteran was afforded a VA fee-based examination in October 2007. It does not appear that the claims file was reviewed in conjunction with the examination. The Veteran reported worsening back pain that radiated down his right leg. However, the laminectomy he previously underwent relieved the radiating pain, but he still had severe ongoing back pain. The pain was described as a dull ache that the Veteran rated an 8 out of 10, which worsened with weight bearing. The Veteran had periods of incapacitation at least three to seven days out of every month. He had severe pain with walking and any type of prolonged weight bearing. He experienced significant difficulties with any type of bending or lifting. He did, however, deny any related bowel, bladder or sexual dysfunction. He had been taking Daypro and Oxycodone as needed. However, the Oxycodone made him sick to his stomach and nauseous. On physical examination, there was a well-healed scar that was three inches long by 1/8 inch wide hypopigmented linear scar on his lower back. There was no tenderness, disfigurement, ulceration, adherence, instability, inflammation, edema underlying tissue loss, keloid formation, hyperpigmentation or abnormal texture. The hypopigmented area was not greater than six square inches. On examination of the thoracolumbar spine, there was no radiation of pain with movement, and straight leg tests were negative in the lying and sitting positions. There were no palpable muscle spasms. There was some tenderness to palpation diffusely at the lower lumbar paraspinous musculature. There was no evidence of ankylosis. Range of motion was decreased in all directions due to pain. Flexion was limited to 60 degrees with pain beginning at 10 degrees. Extension was limited to 20 degrees with pain beginning at 10 degrees. Left lateral flexion, right lateral flexion, right rotation and left rotation were all limited to 20 degrees, with pain beginning at 10 degrees. Nevertheless, range of motion was not additionally limited by pain, fatigue, lack of endurance, or incoordination after repetitive use. Inspection of the spine showed normal position of head, normal symmetry and appearance, normal symmetry of spinal motion and normal curvatures of spine. There was no evidence of intervertebral disc syndrome or nerve root involvement of any lumbar or sacral segments. There was no evidence of any related bowel, bladder or erectile dysfunction. On neurological examination, reflexes were 2 plus over 4 plus, and there were no sensory deficits. There was no change in the diagnosis and it remained postoperative degenerative disk disease and arthritis L5/S1 level with history of injury. The subjective symptoms were ongoing back pain and the objective symptoms were findings of decreased range of motion. The examiner opined that the Veteran no longer reported pain radiation since undergoing the laminectomy, but he did continue to have ongoing back pain. Weight bearing activities were significantly limited. Medications helped, but made him drowsy as well as extremely sick and nauseous to his stomach. He needed to avoid prolonged weight bearing activity as much as possible. He also should avoid vertical ladder climbing and working at heights due to safety concerns. He was ambulatory without assistive devices. He also had leg length discrepancy, with the left leg approximately one inch shorter than right. It was also recommended that the Veteran avoid prolonged repetitive bending, twisting and all heavy lifting. The Veteran testified at the Board hearing in August 2009 that his symptoms had increased in severity since the last VA examination. Specifically, the Veteran testified that the symptoms associated with his service-connected low back disability now required him to use a cane. He indicated that at times, he could not walk at all. He had problems bending and his wife had to help him do things, such as tying his shoes. The Veteran and his wife further commented that the Veteran's back pain prevented him from getting out of bed a few times a month. In January 2010, the Board remanded this case so that the Veteran could be afforded a new VA examination to address any increased and additional symptomatology. On remand, the Veteran was afforded another VA examination in April 2010. The claims file was reviewed. The Veteran essentially reported the same symptoms. He could no longer sit longer than 30 minutes without back pain. His pain was an 8 out of 10 on day of examination. He now used a cane to mobilize. The Veteran denied any urinary or bowel incontinence as well as erectile dysfunction. He also denied any numbness, paresthesias, leg or foot weakness, falls or unsteadiness. However, he did report fatigue, decreased motion, weakness, stiffness and spasms. He further denied any flare-ups. The Veteran used a cane and was unable to walk more than a few yards. His spouse reported that the Veteran's lower back pain required bed rest four to five days per month. On physical examination, his posture was stooped, but his gait was normal. While lumbar lordosis was present, there was no gibbus, kyphosis, lumbar flattening, scoliosis or ankylosis. Guarding was observed as well as tenderness, but there was no spasm, atrophy, pain with motion or weakness. Range of motion was 60 degrees flexion, 20 degrees extension, 20 degrees left and right lateral rotation and 20 degrees left and right lateral flexion. There was objective evidence of pain on motion. There was also objective evidence of pain following repetitive motion. Due to pain, after repetitions, flexion was additionally limited to 40 degrees, extension to 10 degrees and left and right lateral flexion and rotation to 15 degrees in each direction. Lesegue's sign was positive on the right. The examiner determined that the most likely cause of limitation of motion was pain. Sensory and motor examinations were normal. Reflexes were also normal. In pertinent part, a contemporaneous x-ray showed minimal scoliosis and degenerative changes. There was also narrowing of the L2-3 and L5-S1 disc spaces. The examiner determined that there were no incapacitating episodes. The Veteran was not currently employed, but reported psychiatric problems as the reason. The examiner opined that the Veteran's low back disability prevented exercise and sports. It also had a severe affect on chores and a moderate affect on shopping, recreation, traveling and dressing. The disability also has a mild effect on bathing, toileting and grooming. The Veteran was afforded another VA examination in March 2011. The claims file was again reviewed. The Veteran essentially reported the same symptoms as the previous examination, except he now reported the he experienced erectile dysfunction and paresthesias associated with his disability. He reported sharp severe pain that lasted for hours approximately one to six days a week. He now used a walker and wheelchair. He indicated that he was unable to walk more than a few yards. However, he denied any incapacitating episodes. On physical examination, his posture was stooped, and his gait was abnormal in that he limped on the right leg. While lumbar flattening was present, there was no gibbus, kyphosis, lumbar lordosis, scoliosis or ankylosis. There was no spasm, atrophy, guarding, pain with motion, tenderness or weakness. Range of motion was 60 degrees flexion, 10 degrees extension, 20 degrees left and right lateral rotation and 20 degrees left and right lateral flexion. There was objective evidence of pain on motion. There was also objective evidence of pain following repetitive motion, but no additional limitations after three repetitions. However, no additional information was provided as to what degree pain began. Sensory examination of the left lower extremity was normal, but on the right extremity, the Veteran could not feel any vibration. Position sense, pain or pinprick and light touch were all decreased. Motor examination also showed that the right leg was weaker and had decreased sensation, but there was no atrophy and muscle tone was normal. Lasegue 's sign was negative. Reflexes were absent on ankle jerk bilaterally and on the knee jerk on the right, but were 2+ on left knee jerk. The examiner diagnosed right leg monoparesis. A contemporaneous x-ray showed stable degenerative changes. The diagnosis was low back condition status post back surgery with right leg weakness. The examiner found no effects on usual occupation or daily activities. The Veteran was unemployed and again reported that he retired from teaching due to "nerve" problems as well as his back and right knee problems. The examiner opined that the Veteran's back disability was not as likely as not causing his unemployment both physically and sedentarily because the Veteran was able to teach until his retirement in 1988 at age 51 after 25 years of teaching. The examiner observed that right leg weakness and decreased sensation were found on examination. The Veteran started using a cane after his back surgery and in the last few years used a wheelchair. The examiner noted that the Veteran's heart problem and diabetes started much later after the Veteran's retirement. The Veteran's wife reported that he spent about 16 hours a day in bed. He was able to take care of himself. He also had "nerve" problems. The examiner concluded that the Veteran's back individually or in concert with his right knee did not render him unable to obtain or retain substantially gainful employment. However, in the January 2012 remand, the Board determined that the examination reports did not adequately address the Veteran's impairment in regards to his low back disability. The Board noted that the record raised, but did not resolve, the question of whether the Veteran had separately ratable, neurological manifestations of his low back disability. See Note (1) to the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a. The March 2011 VA neurological examination report reflected right leg weakness and decreased sensation. The impression was right leg monoparesis. However, the examiner did not indicate whether the Veteran's right leg monoparesis constituted a separately ratable neurological manifestation of his service-connected low back disability, as specifically requested in the January 2010 Remand. Accordingly, the case was remanded again for another VA examination. The Veteran was afforded another examination in March 2012. The claims file was reviewed. The Veteran walked into the office using a cane in his right hand. He again reported that he had stopped working due to his nerves getting worse. About 40 percent of the time, he needed assistance getting dressed. Low back pain was okay if sitting, but he would get stiff. Back pain was 10/10 with standing. He also indicated that his right leg gave out on him. His wife reported that he mostly stayed in his recliner or bed. He could feed himself, but she otherwise helped with cooking, cleaning, bathing, toileting and getting dressed. He only attended church on Sundays and his medical appointments. His wife did not feel that he could get out of the house in case of an emergency. The Veteran reported flare-ups in cold weather. On physical examination, range of motion was 30 degrees flexion. Painful motion also began at 30 degrees. The Veteran exhibited 0 degrees extension, 5 degrees left and right lateral rotation and 5 degrees left and right lateral flexion with pain beginning at these points. The Veteran was unable to perform repetitive testing because he was not moving his back much. The examiner determined that there were no additional limitations or any functional loss or impairment. The Veteran did have less movement than normal, disturbance of locomotion and pain on movement as well as interference with sitting, standing and/or weight bearing. There was no tenderness or guarding. Muscle strength was decreased in both extremities, right greater than left. Reflex findings were the same as the March 2011 examination. Sensory examination was normal and the examiner explicitly found that the Veteran did not have radiculopathy or any other neurological abnormalities associated with his low back disability. The examiner also determined that the Veteran did not suffer from incapacitating episodes. He did constantly use a cane to assist with locomotion. The examiner found that there was no functional impairment of the extremities associated with the low back disability. The examiner noted that the Veteran had a lumbar scar, five to six inches long and 0.3 cm wide. There was no keloid formation and the scar was not painful. The examiner also noted right leg weakness. In pertinent part, a contemporaneous x-ray showed degenerative changes and some narrowing of the L2-3 and L5-S1 disc spaces. The examiner found that the Veteran's back disability did not impact his ability to work. It was also observed that a neurologic consult was submitted, but the neurologist after reviewing a normal EMG/NCV of the lower extremities, did not feel that any neurologic problem was present. The examination report includes a copy of an April 2011 EMG/NCV, which was normal and clearly determined that there was no evidence of lumbar radiculopathy affecting the right lower extremity. VA treatment records do not address the severity of the Veteran's low back disability for rating purposes. Considering the pertinent evidence in light of the governing legal authority, the Board finds that, pertinent to the March 2004 claim for increase, a 40 percent, but no higher, rating for the disability is warranted, effective the date of claim, March 31, 2004. Resolving reasonable doubt in the Veteran's favor, the Board finds that, as of the date claim, a 40 percent rating is warranted for the Veteran's service-connected low back disability. Significantly, the initial VA examination done in October 2007 clearly found that pain was elicited at 10 degrees flexion and limitation to this degree meets the criteria for a 40 percent rating. At the next examination in April 2010, after repetition, flexion was additionally limited to 40 degrees, but the examiner did not adequately address at what point pain began. Further, the March 2011 examiner indicated that there was objective evidence of pain on motion and pain following repetitive motion, but again did not adequately address at what point pain began. At the next examination in March 2012, the Veteran's flexion was limited to 30 degrees where painful motion began. Given the inadequacy of the April 2010 and March 2011 examinations to address where pain began, the Board finds that it must rely on the October 2007 and March 2012 VA examinations as more accurate reflections of the Veteran's functional limitations during the course of the appeal. Moreover, of note, the record also documents that the Veteran is required to use assistive devices to walk. The Board also finds it significant that the medical evidence documents severe restrictions of motion in extension, lateral flexion bilaterally and rotation bilaterally. Importantly, the Veteran's statements and hearing testimony concerning his severely painful motion and his inability to do physical activities as well as problems bending and stooping have been consistent throughout the appeal period. The record also documents the Veteran's need for his wife's assistance in performing activities of daily living. In sum, when looking at the totality of the evidence of record, and when considering Deluca, together with 38 C.F.R. § 4.7 and the doctrine of reasonable doubt, a 40 percent disability rating more accurately reflects the level of disability from the date of claim. Thus, in light of Deluca and resolving all benefit of the doubt in the Veteran's favor, the Board finds that a 40 percent rating is warranted for the Veteran's service-connected degenerative disc disease of the lumbar spine, status post discectomy from the date of claim, March 31, 2004. However, at no point since March 31, 2004, does the record reflect that the criteria for a higher rating for the Veteran's low back disability are met. The Board also finds that no higher rating than discussed above is assignable for any pertinent period under any other potentially applicable provision of VA's rating schedule. Since the Veteran has been granted the maximum rating possible under limitation of motion for the lumbar spine, a further analysis under DeLuca, supra, would not result in a higher schedular rating. Johnston v. Brown. Further, the evidence does not include any reports of ankylosis of the lumbar spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992).) All of the VA examinations clearly found no evidence of ankylosis. On all examinations, there has been significant remaining motion and the Veteran has not reported any periods when his spine was fixed in position. Hence, a higher rating is not warranted under the general rating formula for back disabilities. A higher rating is also not warranted under the criteria for invertebral disc syndrome as there has been no evidence of incapacitating episodes totaling at least six weeks during a 12 month period. The Board recognizes that the Veteran has reported requiring bed rest at least four to five days a month, which could equate to over six weeks in a year. However, the Veteran has not asserted that this was physician prescribed bed rest. Moreover, all of the VA examinations clearly indicated that there had been no incapacitating episodes in the last 12 months. The record does not otherwise report any periods of physician prescribed bed rest. Importantly, the Veteran has not specifically identified any treatment records that show incapacitation requiring physician prescribed bed rest for this duration of time. With respect to neurologic abnormalities pursuant to Note (1) of the general rating formula for disease and injuries of the spine, there has been no objective finding of neurological abnormalities associated with the Veteran's low back disability to warrant a separate compensable rating. Even though the Veteran has reported radiating pain to the right lower extremity, the VA examiners have not diagnosed radiculopathy of the lower extremities. The Board recognizes that right leg monoparesis was diagnosed at the March 2011 examination. However, as noted above, the examiner did not attribute this finding to the Veteran's low back disability. Importantly, on remand, the March 2012 examiner clearly found, based on a normal April 2011 EMG/NCV study, that the Veteran did not suffer from radiculopathy or any other functional limitations of the lower extremities associated with his low back disability. Further, the Veteran has expressly denied bowel or bladder incontinence. Although at one point, the Veteran reported erectile dysfunction associated with his low back, the most recent VA examiner again clearly found no associated neurological abnormalities. Thus, an additional separate compensable rating is not warranted for any other neurological symptoms and the Veteran's current symptoms are adequately contemplated under the assigned 40 percent disability rating. The disability also has not been shown to involve any factor(s) that warrant evaluation under any other provision(s) of VA's rating schedule. The Board recognizes that the Veteran's has a residual surgical scar on his low back. However, on examination, the scar was not found to be painful, unstable, deep, greater than 144 inches or cause limitation of motion. In fact, the examiners did not identify any associated symptoms with the scar. Accordingly, a separate compensable rating for the Veteran's residual scar is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (in effect prior to October 23, 2008). As the Veteran's claim for increase was received prior to October 23, 2008, the amended criteria for evaluation of scars is not applicable. Nevertheless, given the lack of any objective findings, a separate compensable rating would also not be warranted under the revised criteria. 38 C.F.R. § 4.118 (2012). The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, any point pertinent to the March 2004 claim for increase, the Veteran's service-connected low back disability has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited and discussed in the September 2012 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 111. In this case, the Board finds that the schedular criteria have been are adequate to rate the disability under consideration at all pertinent points. The rating schedule fully contemplates the described low back symptomatology, to include mechanical impairment resulting in limitation of motion, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board concludes that the record supports assignment of a 40 percent but no higher rating for post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury. from March 31, 2004, but finds that there is no basis for any further staged rating of the Veteran's disability, pursuant to Hart, and that a higher rating than 40 percent, must be denied. In reaching these conclusions, the Board has applied the benefit-of-the doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A 40 percent rating for post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury, from March 31, 2004, is granted, subject to the legal authority governing the payment of compensation benefits. A rating in excess of 40 percent for post operative degenerative disc disease, arthritis, L5-S1 level, with history of injury, is denied. REMAND Unfortunately, with respect to the remaining issues on appeal, the Board finds that further RO action is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board previously remanded the claims in January 2010 and January 2012 for the Veteran to undergo VA orthopedic examinations to address the severity of the right knee. The Veteran underwent VA orthopedic examinations in April 2010, March 2011 and March 2012. However, the examination reports do not adequately address the Veteran's impairment in regards to his right knee disability. As noted in the prior remand, the April 2010 VA examination report reflected that range of motion testing revealed right knee flexion to 100 degrees and right knee extension limited by 5 degrees. After repetition, right knee flexion decreased to 40 degrees. While the examiner noted that there was objective evidence of pain on motion, he did not indicate at what point pain began, as specifically requested in the January 2010 Remand. Subsequently, the Veteran was afforded another VA examination in March 2012. He flexed to 100 degrees, which is also where the examiner observed that pain began. However, the examiner indicated that the Veteran was unable to perform repetitive use testing, but did not provide a reason. The examiner then found that the Veteran had functional loss with less movement than normal, weakened movement, pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing. In the Board's remand, the examiner was directed to express any such additional functional loss during flare-ups in terms of additional degrees of limited motion. Nevertheless, while noting functional loss, the examiner did not express this loss in terms of degrees as instructed. Given the lack of repetitive use testing as well as the findings of additional functional loss, it is unclear from the record what additional functional limitations the Veteran has during flare-ups per DeLuca. Under these circumstances, the Board finds that the medical evidence currently of record is inadequate, and that further VA examination-with findings responsive to the applicable rating criteria-are needed to properly assess the severity of the Veteran's service-connected right knee disability. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, shall result in denial of the claims for increase. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examinations, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Regarding the claim for a TDIU, the Veteran contends that he had to retire due to his service-connected right knee and low back disabilities. The Board notes that, as any decision with respect to the claim for increased rating for right knee may affect the Veteran's claim for a TDIU, and, in view of the Veteran's assertions, the claim for a TIDU is inextricably intertwined with the claim for a higher rating. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. Prior to arranging for the Veteran to undergo further examination of the right knee, to ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. The RO's adjudication of the increased rating claim should include consideration of whether "staged rating" of the disability, pursuant to Hart (cited above), is appropriate. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached, in a printed (typewritten) report. The examiner should conduct range of motion testing of the right knee (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in the right knee. If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for an increased rating for right knee disability, as well as the claim for a TDIU. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim for increased rating, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate each claim in light of all pertinent evidence and legal authority (to include consideration of whether staged rating, pursuant to Hart (cited above)), is appropriate. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs