Citation Nr: 1316058 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 10-21 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an increased rating for service-connected mechanical low back pain, evaluated as 40 percent disabling. 2. Entitlement to an increased rating for service-connected tension headaches, evaluated as 30 percent disabling. 3. Entitlement to an increased rating for service-connected left knee patellofemoral pain disorder with synovitis, evaluated as 10 percent disabling. 4. Entitlement to an increased rating for service-connected right knee patellofemoral pain disorder with synovitis, evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: James M. McElfresh, II, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from May 1997 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. On December 1, 2010, the Veteran testified at hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is of record. The Board notes that the instant matters were previously before the Board in March 2012, at which time they were remanded for further development. Upon completion of that development, the matters were readjudicated via Supplemental Statements of the Case (SSOCs) issued in August 2012 and January 2013; the case was thereafter returned to the Board. After the case was returned to the Board, the Veteran submitted additional evidence consisting of a lay statement from his wife and copies of private treatment records. It does not appear as though this evidence was accompanied by a waiver of consideration by the agency of original jurisdiction (AOJ). See Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence that has not been previously considered by the AOJ); 38 C.F.R. §§ 19.37, 20.1304 (2012). However, because the medical records do not contain evidence relevant to the severity of the Veteran's service-connected headache disability and the lay assertions of Veteran's spouse concerning the severity of the Veteran's headache symptoms are duplicative of information already of record, a remand for the AOJ's initial consideration of the additional evidence received in connection with the Veteran's claim for an increased rating for service-connected tension headaches is not warranted. The Board notes that a statement of the case (SOC) was issued in January 2013 relative to a claim for a temporary total rating based on the need for convalescence. The Board recognizes that, in today's environment, not all information is provided to the Board, especially with regard to documents filed in temporary folders maintained at the regional offices. Nevertheless, the record provided to the Board, including the documents in 6 claims folders and information available on Virtual VA, does not include a substantive appeal. Consequently, the issue addressed by the January 2013 SOC is not before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). (The decision below addresses the Veteran claim for a rating in excess of 30 percent for his service-connected tension headaches. The remaining issues are addressed in the remand that follows this decision.) FINDINGS OF FACT 1. The Veteran's service-connected tension headaches have been accompanied by dizziness, nausea, vomiting, and light and sound sensitivity tantamount to no worse than characteristic prostrating attacks occurring at least once a month over several months. 2. The occupational impact of the Veteran's service-connected tension headaches alone is not productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for tension headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8199-8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). The RO received the Veteran's claim for an increased evaluation of his service-connected tension headaches in October 2008. In May 2009, the RO sent to him a letter advising him of the need to submit evidence showing that his service-connected disability had increased in severity. The letter advised the Veteran of the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates and stated that in determining the appropriate disability rating, the RO would consider the impact of the disability and its symptoms on employment. The RO informed the Veteran that he should submit evidence regarding how his disability affected his ability to work. The letter further provided the Veteran with the specific rating criteria used to evaluate his service-connected headache disability. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the May 2009 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and Vazquez-Flores, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Although the May 2009 notice letter was issued after the initial adjudication of the Veteran's claim in November 2008, the present matter was readjudicated in an October 2009 rating decision and in several subsequent SSOCs. Thus, any error with respect to the timing of notice was effectively cured in this case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). Accordingly, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the claim decided herein has been obtained. The evidence includes the Veteran's VA treatment records and examination reports; private medical evidence; employment records; and statements in support of his claim, to include his December 2010 hearing testimony. The Veteran has not indicated that there are outstanding records for the time period in question that VA should have obtained, and the Board is aware of none. Further, the Veteran has been afforded several VA examinations in connection with his claim for an increased rating. A review of the examination reports reveals that the VA examiners indicated that the claims folder had been reviewed and that they took into account the Veteran's subjective complaints related to his headache disability. The examination reports contain detailed information regarding the Veteran's symptomatology related to his service-connected disability and its effect on his ability to function, especially in an occupational setting. Upon review of the examination reports and the VA treatment records, and in consideration of the lay evidence of record, the Board is satisfied that the claims folder contains sufficient evidence by which to evaluate the Veteran's service-connected tension headaches in the context of the rating criteria and throughout the relevant time period. Accordingly, the Board finds that VA has properly assisted the Veteran by affording him adequate VA examinations in connection with his claim and the duty-to-assist requirements have therefore been met. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board notes that the Veteran's representative has vaguely argued against the probative value of the VA examination reports, asserting that the VA clinicians who examined the Veteran "were neither proficient nor experienced as orthopedic or neurosurgeons." It is unclear from this statement whether the Veteran's representative intended to argue that the clinician who examined the Veteran in connection with his claim for an increased evaluation for his headache disability was not qualified to render the requested opinions with regard to the severity of that disability and its impact on the Veteran's ability to function, to include in an occupational setting. In any event, the Board points out that status as a medical doctor or specialist is not required to offer an adequate medical opinion; rather, the examination need only be "'provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.'" Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (quoting 38 C.F.R. § 3.159(a)(1) (2006)). In this case, there is no evidence that the VA clinicians who examined the Veteran did not meet these requirements. Furthermore, the Board does find that the medical questions presented in this case were of such complexity that a specialist's opinion was required. Accordingly, the Board finds no reason to reject the VA examinations and the opinions rendered as a result thereof as inadequate based on the clinicians' expertise and qualifications as a medical professional. II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Further, "[w]here 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 (2012). The Veteran's service-connected headaches have been evaluated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8199-8100. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, miscellaneous diseases, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2012). In this case, the RO initially determined that the DC most analogous to the Veteran's headache disability was DC 8100, which pertains to "[m]igraines." Under DC 8100, a noncompensable rating is assigned for migraines with less frequent attacks than required for a 10 percent rating; a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100 (2012). In filing for increased disability compensation, the Veteran asserted that he suffered from constant migraines, which were severe in nature, accompanied by dizziness, nausea, and vomiting. He stated that he was unable to achieve any relief of symptoms without the use of heavy pain medication, which resulted in such side effects as impaired driving skills, drowsiness, constipation, nausea, and vomiting. The Veteran asserted that these side effects limited his ability to work and function. A review of the Veteran's VA treatment records shows that he has, over time, been prescribed a variety of medications for treatment of his headaches. He was also seen at Lifetree Pain Clinic for pain management. The Veteran was afforded a VA examination in September 2010. It was noted that the Veteran had been diagnosed as having both tension and migraine headaches. The Veteran reported a constant headache, the intensity of which fluctuated. He denied any associated aura or scotomas, but did report occasional light speckles, as well as associated photophobia and phonophobia. The Veteran indicated nausea and vomiting, but stated his belief that those symptoms were related to a different medical condition. Bright lights, loud noises, and jolts to his back were reported to aggravate his headache pain and the Veteran stated that he had flare-ups of increased headache pain three to four times a month, lasting for two to three days. The Veteran denied incapacitating headache episodes over the previous few months, as defined by physician-prescribed bed rest and prostrating episodes were not noted. Regarding the occupational impact of his headache disability, the Veteran stated that had arrived late or left early several times, but had not missed any days of work due to his headaches. However, he later called and indicated that he missed two and a half days of work a month on account of his headaches and joint pain. In December 2010, the Veteran presented testimony at a Board hearing. He reported light sensitivity and sharp or pounding pain. He stated that his headache symptoms impacted his ability to concentrate at work and that he would often leave early. He reported experiencing extremely painful, incapacitating headaches one to two times a week. Another VA examination was conducted in March 2012. At that time, the Veteran reported having missed three to four days of work per month on account of his headaches. He stated that his headaches occurred daily and were constant in nature, but that he had three to five days a month where he was headache free. He assessed the average intensity of his headaches as a three on a scale to ten. The Veteran endorsed associated photophobia, phonophobia, and nausea related to the medication he took to alleviate symptoms. He also stated that he experienced visual changes, consisting of seeing small white dots, two to three times a month, during which time he would be unable to focus on a computer screen. The Veteran indicated that when this occurred at work, he would spend time filing until these symptoms went away. The Veteran stated that he did not believe that his headaches were causing prostrating attacks, but noted that he could not distinguish whether his headache pain or his back pain caused more prostration. He surmised that maybe four days a month he needed to stay in bed for at least half of a day on account of his headaches. The Veteran also reported having a mild to moderate, non-prostrating headache on a consistent basis, but further indicated that he experienced four to five headache-free days per month. Associated symptoms were noted to be nausea and light and sound sensitivity. Regarding the occupational impact of the Veteran's headaches, the examiner did not find the Veteran to be unemployable on account of his headaches, noting that the Veteran's headaches would require only that he be able to change work tasks if he became unable to focus on a computer screen due to a headache. In an addendum opinion proffered in August 2012, the examiner opined that the Veteran's prostrating headaches were not productive of severe economic inadaptability as, from a general medical standpoint, they would not preclude him from obtaining and maintaining substantially gainful sedentary employment. In a May 2012 letter from a clinician at Park City Spine and Pain Clinic, it was noted that the Veteran had been receiving treatment at the facility for the previous three years related to his chronic back and knee pain and headaches, which occurred daily. It was indicated that the Veteran was increasingly unable to perform his duties at work due to his spinal pathology. In a statement received in September 2012, the Veteran refuted the findings contained in the March 2012 VA examination report and subsequent addendum opinion, stating that he experienced nausea, photophobia, and phonophobia associated with his headaches several times a week, as opposed to several times a month. He further stated that his symptoms precluded him from being able to safely transport himself to work and indicated his belief that no employer would desire to hire him due to his need to frequently come in late or leave early on account of his headaches. Another VA examination was conducted the following month, at which time the Veteran reported constant headache pain and pressure. He stated that the pain would frequently shift in location and that it was aggravated by bright lights and loud noise. His average pain level was noted to be a three on a scale of one to ten, with severe pain being an eight. The Veteran stated that a severe headache was often accompanied by dizziness and nausea, but rarely vomiting, and required him to lie down in a dark room for anywhere from one hour to two days. Prostrating attacks were noted to occur more than once a month. Regarding his ability to work, the Veteran stated that his headache slowed him down and were distracting, but that when not severe, he was able to adequately work. He reported missing three to five days of work a month on account of his headaches. Overall, the examiner determined that the totality of the Veteran's service-connected disabilities could make obtaining and maintained a new job very difficult. In evaluating whether the evidence supports a rating greater than the currently assigned 30 percent, the Board notes that the rating criteria have not defined "prostrating." However, "prostration" is defined as "extreme exhaustion or powerlessness," Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), or as "physically or emotionally exhausted," Webster II New College Dictionary 889 (3rd ed. 2001). Further, as pointed out by the United States Court of Appeal for Veterans Claims (Court) in Pierce v. Principi, "[n]owhere in the DC is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations." 18 Vet. App. 440, 446 (2004). In Pierce, the Court specifically noted that "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating." Id. In the instant case, the Board does not dispute the fact that the Veteran's headaches can be prostrating in nature. The Board does not, however, find them to productive of severe economic inadaptability. Although the evidence certainly suggests that the Veteran's headaches cause some amount of occupational impairment, in that he misses up to five days of work a month and often arrives late or leaves early, the Veteran himself states that he is able to function in an occupational setting when his headaches are not severe. Further, the Veteran has indicated being able to switch occupational tasks when he experiences a flare-up of associated symptoms at work. Although the Veteran believes that his headaches severely impact his economic viability and potential for employment, the Board finds probative the fact that no VA or private clinician has indicated that the Veteran's headaches alone result in severe economic inadaptability. Notably, the Veteran's private clinician attributed the Veteran's decreasing ability to perform the duties of his job to his spinal pathology and made no mention of the Veteran's headaches. Further, although the Veteran is no longer working full time, and indeed, as discussed in further detail below, may not be employed at the present time, his diminished earnings cannot be said to result from his headache disability alone. Even the Veteran himself admits that his back pain contributes to his nausea and vomiting and all of the clinicians who have treated and/or evaluated the Veteran suggest that it is a combination of the Veteran's various physical disabilities that impact his earnings. While the Board certainly does not discount the impact that a reduction in wages may have on the Veteran or his family on account of missed days due to headaches, the Board does not find that this reduction is suggestive of severe economic inadaptability such that the Veteran's headache symptomatology more nearly approximates the criteria for 50 percent rating. Indeed, the schedular rating criteria is based on the average impairment of earning capacity and thus, it would seem that a 50 percent rating would correlate to a 50 percent reduction in ability to work. As it had not been shown that the Veteran's headache disability causes that sort of inadaptability, the Board finds that a rating greater than 30 percent is not warranted at any point during the claim period. See 38 C.F.R. § 4.124a, DC 8100. The above determinations are also based upon consideration of applicable rating provisions, and the Board finds that the level of severity and symptomatology of the Veteran's service-connected headaches are adequately addressed by the rating criteria for migraines. The Board finds that complained-of symptoms, mainly dizziness, nausea, and light and sound sensitivity, do not render his disability picture so "exceptional or unusual," such that the "the available schedular evaluation[] for [his service-connected disability is] inadequate." Indeed, the Board finds that these symptoms are exactly the type of symptoms that contribute to the classification of headaches as prostrating. Further, while the Veteran has missed work on account of his headaches, the schedular rating criteria are based on the average impairment of earning capacity and thus, the Veteran is being compensated for the severity of his disability. Accordingly, the Board finds that referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2012). Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that "a request for [a total rating based upon individual unemployability due to service connected disability (TDIU)], whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." 22 Vet. App. 447, 453 (2009), but see In re Leventhal, 9 Vet. App. 386, 389 (1996) (holding that TDIU is separate claim where based upon multiple service-connected disabilities). Here, although, as will be discussed in further detail below, the issue of entitlement to a TDIU is being remanded as part of the Veteran's claims for increased evaluations for his service-connected back and knee disabilities, the evidence does not suggest that the Veteran is unemployable due solely to his service-connected headache disability such that entitlement to TDIU must be addressed based on this singular disability. Rather, the evidence tends to suggest that the Veteran's occupational functioning is impacted by the totality of his service-connected disabilities. In this regard, the Board notes that this decision in no way precludes consideration of the Veteran's service-connected headache disability in determining whether he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities in combination with one another. ORDER Entitlement to an evaluation in excess of 30 percent for service-connected tension headaches is denied. REMAND As noted in the introduction, the issues of entitlement to increased ratings for the Veteran's service-connected low back and bilateral knee disabilities were most recently adjudicated by the AOJ via a January 2013 SSOC. The matters were thereafter returned to the Board and the Veteran subsequently submitted additional evidence in the form of private medical records and a lay statement from his spouse, which evidence was not accompanied by a waiver of consideration by the AOJ. The evidence shows treatment related to the Veteran's back and contains an assertion that the Veteran is no longer employed because of service-connected disabilities. The Board observes that any pertinent evidence submitted by the appellant or his representative must be referred to the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304 (c) (2011); see Disabled American Veterans, supra. Because this evidence is relevant to the issues of entitlement to increased ratings for the Veteran's service-connected low back and bilateral knee disabilities, a remand is required for the AOJ's initial consideration of the additional evidence received, and for issuance of an SSOC reflecting such consideration. Id. Further, in remanding the matters in March 2012, the Board stated that the AOJ was to specifically consider whether a rating of TDIU was warranted as part of its readjudication of the Veteran's increased rating claims. The AOJ was directed to issue an SSOC addressing entitlement to TDIU, if such benefit was not granted. In a November 2012 rating decision, the AOJ denied entitlement to TDIU because the evidence failed to reflect that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Notably, however, the January 2013 SSOC did not address the TDIU issue. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The AOJ was also directed to obtain opinions on whether the Veteran is unable to secure or follow substantially gainful employment (i.e., whether more than marginal employment would be feasible) consistent with his education and occupational experience on account of his various service-connected disabilities. An opinion obtained in October 2012 noted that the Veteran was employed and continued to maintain substantially gainful employment at that time, but indicated that the Veteran had significant limitations that could make obtaining and maintaining a new job difficult. Evidence received since the October 2012 examination reveals that the Veteran is no longer working. As this suggests that the Veteran's ability to function in an occupational setting has decreased since the October 2012 examination, the Board finds that a new examination and opinion regarding the Veteran's employability is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); 38 C.F.R. § 3.327(a) (2012) (duty to provide a thorough and contemporaneous examination is triggered when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). The Board also finds reason to question the adequacy of the VA examinations afforded to the Veteran on remand from the Board in connection with his claims for increased back and knee disability ratings. Indeed, the VA examinations are in conflict with regard to whether the Veteran has intervertebral disc syndrome. Further, it is indicated that there is no evidence of radiculopathy. However, private treatment records contain diagnoses of lumbar radiculopathy. Moreover, the March 2012 VA examiner specifically indicated that range-of-motion findings pertinent to the Veteran's right and left knee were "unreliable as there is a difference in the degree of flexion because of [the Veteran's] subjective complaints of pain throughout the examination." A review of the range-of-motion findings, however, reveals a full range of knee motion, bilaterally, and no objective evidence of painful motion. Based on these inconsistent findings, and in order to fully assess the severity of the Veteran's back and knee disabilities and their impact on his occupational functioning, the Board finds that on remand, the Veteran should be afforded new VA examinations. See Barr, 21 Vet. App. at 312 (holding that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED to the AOJ for the following action: 1. The Veteran should be afforded a VA examination to determine the current severity of his service-connected mechanical low back pain and right and left knee patellofemoral pain disorder with synovitis. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The claims folder and a complete copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. All appropriate tests and studies, to include x-rays if deemed necessary, should be performed and all clinical findings should be reported in detail. The results of any testing must be included in the examination report. The examiner should identify any orthopedic and neurological symptoms related to the service-connected back disability and fully describe the extent and severity of those symptoms. The examiner should consider the diagnoses of lumbar radiculopathy contained in the private medical records and, if the examiner finds no associated neurological abnormalities, should set forth specific reasons for why he/she disagrees with the assessment of lumbar radiculopathy. With regard to any associated objective neurological abnormalities, the examiner should identify each nerve affected, or seemingly affected, and describe the degree of disability as "mild," "moderate," "moderately severe," "severe," or "complete paralysis." The examiner should also report the ranges of motion for the thoracolumbar spine and state whether the Veteran's service-connected disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such findings should be equated to degrees of additional loss of motion (beyond what is shown clinically) in order to reflect the degree of disability caused by the functional deficits. The examiner should specifically comment on the presence of ankylosis and indicate whether the Veteran's disability picture represents unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. The examiner should also determine whether degenerative disc disease (IVDS) has resulted from the service-connected disorder. As the evidence of record is unclear regarding the existence of IVDS, the examiner's finding, whether positive or negative, must be supported with medical reasons. The examiner should also identify all chronic orthopedic manifestations of the Veteran's service-connected left and right knee disabilities and include range-of-motion findings. It should be specifically noted whether the Veteran has lateral instability or subluxation, and the degree of such a problem-"slight," "moderate," or "severe." This should be done for each knee. The examiner should state whether the Veteran's service-connected knee disability is manifested by weakened movement, excess fatigability, incoordination, or pain. The examiner should then provide an opinion as to the extent of functional loss due to pain, incoordination, weakness, pain on flare-ups, and fatigability. Such findings should be equated to degrees of additional loss of motion (beyond what is shown clinically) in order to reflect the degree of disability caused by the functional deficits. This should be done for both knees and for both loss of extension and loss of flexion. The examiner should also comment on the Veteran's employment and employability. (A detailed history of employment should be taken.) The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment (i.e., whether more than marginal employment would be feasible) consistent with the Veteran's education and occupational experience on account of his service-connected disabilities. (In addition to his mechanical low back pain and bilateral patellofemoral pain disorder, the Veteran is service connected for tension headaches, gastroesophageal reflux disease, exercise induced reactive airway disease, and amputation of the first, second, third toes of the right foot with callus formation.) A complete rationale for the opinion provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. This should include a discussion the lay evidence of record regarding the impact of the Veteran's service-connected disabilities on his employability, to include the August 2012 statement by the Veteran's former employer that the Veteran was unable to sit, stand, or walk to perform the duties of his position and was unable to maintain his scheduled work hours even in a sedentary capacity and the Veteran's assertion that, when working, his hours were limited on account of his service-connected disabilities such that his income was below the poverty level for one person. 2. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues of entitlement to higher ratings for the Veteran's service-connected back and left and right knee disabilities. The AOJ must also specifically consider whether a rating of TDIU is warranted as part of its readjudication of the Veteran's increased rating claims. If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response. (The SSOC should also address the TDIU claim if this benefit is not granted.) The Veteran should be given opportunity to respond before the record is returned to the Board. 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). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs