Citation Nr: 1318806	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  08-18 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Whether the reduction in the evaluation for service-connected residuals, to include degenerative disc disease and degenerative changes, of an injury to the thoracolumbar spine (hereinafter referred to as "a back disability") from 40 percent to 10 percent effective July 1, 2010, was proper.

2.  Entitlement to an evaluation in excess of 10 percent through August 21, 2006, and in excess of 40 percent beginning August 22, 2006, for a back disability.

3.  Entitlement to an evaluation in excess of 20 percent for service-connected post operative residuals of an injury to the right knee with chondromalacia (referred to hereinafter as "right knee disability").

4.  Entitlement to a total disability evaluation based on individual unemployability (TDIU).



REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1986 to March 1993 and from May 1999 to November 1999.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  Following his November 2005 claim, a May 2006 rating decision continued the Veteran's previously established 10 percent rating for his back disability and 20 percent evaluation for his right knee disability as well as denied a TDIU.  He did not appeal this rating decision.  Yet he essentially contested the determinations made therein by filing another claim in August 2006.  In any event, additional evidence was received prior to expiration of the one year period for initiating an appeal of the rating decision.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a).  This evidence is considered as having been filed in connection with the claim pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  It was filed in connection with the November 2005 claim rather than the August 2006 claim, in other words.  The May 2006 rating decision thus was not final.

A November 2006 rating decision continued the 20 percent evaluation for the Veteran's right knee disability, increased the evaluation for his back disability to 40 percent effective August 22, 2006, and denied a TDIU.  As an even higher evaluation is possible for his back disability, it follows that he was granted the benefit sought only partially.  AB v. Brown, 6 Vet. App. 35 (1993).  Once again, he did not appeal this rating decision but essentially contested the determinations made therein regarding his right knee and back disabilities by filing another claim in May 2007.  Additional evidence concerning the Veteran's disabilities further once again was received within one year, rendering the November 2006 rating decision not final with respect to them.  A September 2007 rating decision continued the 40 percent evaluation for the Veteran's back disability and the 20 percent evaluation for his right knee disability.  The Veteran filed a timely appeal of these determinations.  He simultaneously filed a timely appeal of the denial of a TDIU from the November 2006 rating decision.

In an April 2010 rating decision, the RO reduced the evaluation for the Veteran's back disability from 40 percent to 10 percent effective July 1, 2010.  He has not specifically appealed the issue of whether this reduction was proper.  This issue is part and parcel to his appeal for a higher evaluation, however.  The Veteran seeks evaluations in excess of those in effect for his back disability.  In other words, he believes he warrants even higher evaluations.  His objection to a reduction follows inherently from this belief.  The Board thus has taken jurisdiction over the reduction issue at this time, as reflected above.  The higher evaluation issue has been partially recharacterized, as reflected above, to one of in excess of 40 percent for the period beginning August 22, 2006, because the reduction is overturned herein.

The Board denied an evaluation in excess of 20 percent for the Veteran's right knee disability in April 2012.  At the same time, the Board remanded the issues regarding his back disability and a TDIU for additional development.

With respect to the denial regarding his right knee disability, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  His attorney and VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion) to the Board regarding this denial in December 2012.  The Court issued an Order granting the Joint Motion in January 2013.  As such, the denial was vacated, and the right knee disability issue was remanded to the Board for action consistent with the Joint Motion.  With respect to the back disability and TDIU issues, the additional development directed has been completed or at least substantially completed.  Adjudication thus may proceed if otherwise in order.  Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

No potential problems with adjudication on the merits at this time of any issue comprising this matter are found by the Board.  Accordingly, the following determinations are made based on review of the Veteran's claims file in addition to his Virtual VA "eFolder."

The issues of entitlement to service connection for breathing difficulties and for headaches, to include as due to an undiagnosed illness, were raised in a March 2012 Written Brief Presentation from the Veteran's representative-as was the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a heart disorder.  None of these issues has been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ), which in this case is the RO, however.  The Board therefore does not have jurisdiction over them.  They accordingly are referred to the RO/AOJ for appropriate action.


FINDINGS OF FACT

1.  The reduction of the back disability evaluation did not comport with applicable statutes and regulations.

2.  Through August 21, 2006, the Veteran's back disability did not manifest forward flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, severe muscle spasm or guarding resulting in abnormal gait or spinal contour, or any incapacitating episodes.  Beginning August 22, 2006, the Veteran's back disability has not manifested any unfavorable ankylosis or incapacitating episodes.
3.  Mild left sciatic nerve radiculopathy associated with the Veteran's back disability has been consistently present since February 2010.

4.  The Veteran's right knee disability has not manifested subluxation, instability, ankylosis, or impairment of the tibia and fibula.

5.  There is noncompensable limitation of motion in the Veteran's right knee, but he has had arthritis since November 2006.

6.  Throughout the appeal period, the Veteran's service-connected disabilities have not been of sufficient severity to render him unemployable or unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The reduction in the back disability evaluation was improper and void ab initio.  38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.344 (2012).

2.  The criteria for an evaluation in excess of 10 percent through August 21, 2006, and in excess of 40 percent beginning August 22, 2006, for a back disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5242 (2012).

3.  The criteria for a separate evaluation of 10 percent, but no higher, for left sciatic nerve radiculopathy associated with a low back disability have been met effective February 2010.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5242, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8720 (2012).

4.  The criteria for an evaluation in excess of 20 percent for a right knee disability have not been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5256-5259, 5262-5263, 4.118, Diagnostic Codes 7801-7805 (2012).

5.  The criteria for a separate evaluation of 10 percent, but no higher, for right knee arthritis have been met effective November 2006.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012).

6.  The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19, 4.25 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Discussion of these duties is not necessary with respect to the reduction issue because the benefit sought is granted herein.  It follows that any error committed regarding the duties was harmless.  Discussion of the duties to notify and assist is necessary with respect to the higher evaluation issues because only partial grants of the benefits sought in the form of separate evaluations are made herein.  Finally, discussion of these duties is necessary with respect to the TDIU issue because the benefit sought is denied herein.

VA must notify the claimant and his representative, if any, prior to the initial decision by the AOJ of any information and any evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  With respect to higher evaluation claims, generic rather than specific notification of the evidence needed to substantiate the claim must be provided.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (overturning Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)).  Information on how evaluations and effective dates are assigned also must be provided.  Id.; see also Dingess v. Nicholson, 19 Vet. App. 473 (2006) (service connection context).

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)).  None is found.  Via letter dated in January 2006, the Veteran and his representative were informed of the criteria for establishing a higher evaluation, the criteria for establishing a TDIU, the evidence required in these regards, and his and VA's respective duties for obtaining evidence.  Via letter dated in March 2006, the Veteran was informed of how evaluation and effective dates are assigned.  Both of these letters are dated prior to the initial rating decision by the RO/AOJ in May 2006.  While the Veteran's representative did not receive the March 2006 letter, the information therein was repeated in an attachment to a May 2006 letter regarding the rating decision sent to him and his representative.  Additional notification concerning the aforementioned was provided to the Veteran and his representative via October 2006, August 2007, and May 2008 letters as well as in a June 2008 statement of the case.  The May 2008 letter further provided specific as opposed to generic information regarding evaluation of the Veteran's disabilities.

VA must assist the claimant in procuring relevant records.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.159(c)(1-3).  VA also must assist the claimant by providing a medical examination and/or obtaining a medical opinion when necessary.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

Throughout the pendency of this matter, the Veteran has had many opportunities to identify pertinent records.  This includes responding to an April 2012 letter sent to him in this regard pursuant to the Board's remand.  VA has obtained his service treatment records and Social Security Administration (SSA) records.  His VA treatment records have been obtained through VA's efforts as well as him or his representative submitting them.  No private treatment records or state disability records regarding the Veteran have been obtained by VA.  Yet none have been identified by him or his representative, whether in response to the April 2012 letter or otherwise.  Neither he nor his representative further has submitted any private treatment records or state disability records.  This is despite a January 2009 letter requesting these latter records.  Of final note is that the Veteran submitted an employment record on his own behalf.

VA medical examinations were conducted in February 2006, November 2006, August 2007, May 2009, and, as directed by the Board's remand, in July 2012.  To the extent the claims file and "eFolder" were not reviewed by the examiners performing these examinations, it is of no great import since the Veteran gave a reasonably accurate account of his medical history.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008).  He also was interviewed regarding his symptomatology by all of the examiners.  Each examiner finally undertook a physical assessment of the Veteran, to include completion or at least review of diagnostic testing.  These actions have provided sufficient detail so that the determinations made herein are fully informed.  As such, the examinations are adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran's December 2009 statement contending to the contrary regarding the May 2009 examination, specifically that no such examination was conducted on his back, is unsupported in light of the aforementioned actions.

It is significant that neither the Veteran nor his representative has identified any further development necessary for fair adjudication on the merits that has not been completed.  The record also does not indicate any further development.  Accordingly, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Appellate review therefore may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Reduction

VA handles cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability in evaluations consistent with the laws and regulations governing compensation.  38 C.F.R. § 3.344(a).  A variety of requirements thus must be met in order for a reduction to be proper.  These include both procedural requirements as well as substantive requirements.

Where a reduction in an evaluation is considered warranted and the lower evaluation would result in a decrease or discontinuance of compensation payments, proper procedure begins with the preparation of a rating proposing the reduction and setting forth the material facts and reasons for it.  38 C.F.R. § 3.105(e).  In addition, the Veteran must be notified in writing that he may request a predetermination hearing, provided that the request is received within 30 days of the date of the notice, and that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  Id.; 38 C.F.R. § 3.105(i)(2).  If after consideration of any additional evidence timely received, to include that from any predetermination hearing, the reduction still is found warranted, a final rating action setting forth the evidence and reasons for it will be issued.  Id.  The effective date of the reduction is the last day of the month in which a 60-day period from the date of the notice to the Veteran expires.  38 U.S.C.A. § 5112(b)(6); Id.  Where a reduction in an evaluation is considered warranted and the lower evaluation would not result in a decrease or discontinuance of compensation payments, there are no procedural requirements.  The aforementioned due process provisions of 38 C.F.R. § 3.105 indeed do not apply.  VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997).

Substantively, an evaluation cannot be reduced unless improvement is shown to have occurred.  38 U.S.C.A. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999).  The standard for establishing improvement varies depending on amount of time the Veteran has been in receipt of the evaluation.  For evaluations in effect less than five years, such as those that have not become stabilized and are likely to improve, reduction is warranted when reexamination discloses improvement.  38 C.F.R. § 3.344(c).  For evaluations that have been in effect for five years or more, reduction is warranted when reexamination discloses sustained material improvement.  38 C.F.R. §§ 3.344(a), (b).

Examinations thus usually are the comparison point for determining whether or not there has been improvement.  Collier v. Derwinski, 2 Vet. App. 247 (1992); Hohol v. Derwinski, 2 Vet. App. 169 (1992).  Those forming the basis for a reduction must be thorough and adequate.  Faust v. West, 13 Vet. App. 342 (2000); Tucker v. Derwinski, 2 Vet. App. 201 (1992).  Evidence other than examinations must be considered, however.  This includes post-reduction evidence, although the reduction must be supported by the evidence at the time it is made.  Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).  Both medical and non-medical indicators of improvement may be considered.  Faust v. West, 13 Vet. App. 342 (2000).  Additionally, the general regulations governing disability evaluations (set forth below) are applicable for determining the propriety of reducing such an evaluation.  Brown v. Brown, 5 Vet. App. 413 (1993).

VA is required to apply all relevant statutes and regulations.  Wilson v. West, 11 Vet. App. 383 (1998); Crowe v. Brown, 7 Vet. App. 238 (1994).  Reduction of an evaluation generally is void ab initio where VA has failed to follow them.  Greyzck v. West, 12 Vet. App. 288 (1999); Brown, 5 Vet. App. at 413; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Indeed, few exceptions exist where VA's failure to follow them does not render reduction of an evaluation void ab initio.  One such exception is when the only failure is a mere miscalculation of the effective date for a reduction.  VAOPGCPREC 31- 97 (Aug. 1997).

Upon VA examination in November 2006, the Veteran complained of back pain and stiffness.  He reported monthly flare ups lasting two days.  He denied numbness as well as bowel and bladder problems.  Assessment revealed that his gait was normal and that he could do a full squat as well as get in and out of a chair.  The back was not tender or weak, but it did have spasms.  Forward flexion was to 90 degrees with pain from 20 to 70 degrees, extension to 45 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 35 degrees.  Repetition did not change these figures.  The Veteran had to bend his knees to straighten back up after forward flexion.  He was "intact motor, sensory, and reflex wise."  It was opined that he would have pain, incoordination, and excess fatigability during flare ups, but additional range of motion loss was not given on the basis that to do so would be speculative.

The November 2006 rating decision increasing the evaluation for the Veteran's back disability from 10 percent to 40 percent was based on the aforementioned.  It was noted therein that he did not meet the criteria (set forth below) for a 40 percent evaluation.  Rather, the 40 percent evaluation was based on painful motion, having to bend the knees to straighten up after forward flexion, and expected additional functional loss during flare ups.

The Veteran reported no significant change regarding his back at the August 2007 VA examination.  He complained of intermittent pain with occasional radiation into the left leg and flare ups.  He denied weakness, greater restriction in range of motion during flare ups, neurologic deficits, and incapacitating episodes.  Assessment revealed a walk with a marked limp and normal spinal alignment.  The back was not tender and did not have spasms.  Forward flexion was to 90 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 50 degrees.  There was pain at the extreme in each motion direction.  There was no change in these figures with repetition.  Motor strength and sensation in the lower extremities was normal, as were reflexes.  

The September 2007 rating decision, which continued the 40 percent rating for this back disability, acknowledges some improvement.  It thus further was noted that the evaluation is not considered permanent and is subject to future review.

The Veteran complained of chronic back pain at the May 2009 VA examination.  It was noted that he has chronic symptoms rather than flare ups.  He denied incapacitating episodes as well as bowel and bladder complaints.  Assessment revealed normal lumbar lordosis.  The back was slightly tender, but there was no radiation, weakness, or spasms.  Forward flexion was to 80 degrees, extension to 35 degrees, right lateral flexion to 35 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 35 degrees.  There was pain at the extreme in each motion direction except right and left lateral rotation.  Repetition did not change these figures.  There were no motor or sensory deficits in the lower extremities.  Reflexes were only trace positive, or almost absent, but equal at all locations.  It was opined that there were no neurologic abnormalities.

A November 2009 rating decision proposed to reduce the evaluation for the Veteran's back disability from 40 percent to 10 percent.  The basis cited was that the recent examination did not meet the criteria for an evaluation higher than 10 percent.  The criteria for ratings of 10 and 20 percent were set forth.  A letter sent to the Veteran along with the rating decision stated that a reduction was being proposed because recent examination showed improvement in his back disability.  It went on to inform him that he had 30 days to request a hearing if he desired one, and 60 days to submit evidence showing that the reduction should not occur.

The Veteran denied loss of bowel or bladder function in a November 2009 VA emergency department treatment record.  This record noted an antalgic gait and back tenderness.  A February 2010 VA emergency department treatment record contains the Veteran's complaint of back pain radiating to his left leg.  He reported control of his bowels and bladder.  His back was tender.

The April 2010 rating decision reduced the Veteran's back disability from 40 to 10 percent effective July 1, 2010, as noted above.  It was reiterated that his VA examination showed improvement.  The criteria for evaluations of 10 and 20 percent once again were set forth.  The Veteran's December 2009 statement further was deemed insufficient evidence against the reduction.

Subsequent VA treatment records, to include from the emergency department, reveal the following.  In June 2010, the Veteran complained of back pain radiating to his left leg.  He reported bowel and bladder continence.  His gait was antalgic, and there was increased lumbar lordosis.  Sensation in the legs was intact.  Motor strength was normal in the right leg but somewhat decreased in places in the left leg.  The right ankle reflex was hypoactive, while reflexes in the left ankle and the knees could not be elicited.  In July 2010, the Veteran complained of back pain radiating to his left leg.  Magnetic resonance imaging (MRI) showed mild scoliosis.  The Veteran repeated his previous complaint, though he also complained of pain radiating down both legs, in August 2010.  He further complained of numbness and tingling in his left leg.  He denied bowel and bladder problems.  The back was tender.  It had full range of motion once and decreased range of motion once.  Leg muscle strength was noted to be normal and characterized as good.  Reflexes were normal while sensation was intact.  In September 2010, the Veteran complained of back pain radiating down his left leg as well as weakness in his left quad.  His gait was highly antalgic.  No apparent lower extremity sensory or motor deficit was found once, but there was scattered loss of touch and normal strength in the right leg accompanied by somewhat decreased strength in places in the left leg once.  Reflexes were normal in the ankles and absent in the knees.  In November 2010, the Veteran rated his back pain at 10 out of 10 and indicated it radiated to both legs.  Range of motion was decreased.  Bowel and bladder incontinence was denied by the Veteran in December 2010.  He complained of back pain radiating to his left leg in January 2011.  In October 2011, he did the same.  He denied leg numbness and weakness as well as bowel and bladder incontinence.  The back was tender.  Leg motor strength and reflexes were normal.  In March 2012, the Veteran complained of intermittent deteriorating back pain rated at seven out of 10.

At the July 2012 VA examination, the Veteran reported flare ups.  Assessment revealed that the back was not tender.  There was no guarding, and there were no spasms.  Forward flexion was to 90 degrees or greater, extension to 20 degrees, right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater.  There was pain at the extreme in each motion direction.  Repetition did not change these figures.  Sensation and motor strength in the lower extremities was normal, and there was no muscle atrophy.  Reflexes were normal in the ankles and hypoactive in the knees.  The neurologic abnormality of mild left radiculopathy of the sciatic nerve characterized by mild intermittent (usually dull) pain as opposed to constant pain (while may be excruciating at times), paresthesias and/or dysesthesias, and numbness was identified.  No other neurologic abnormalities were detected.  It was opined that the Veteran did not have intervertebral disc syndrome (IVDS).

The Board finds, based on the above, that restoration of the 40 percent evaluation for a back disability effective July 1, 2010, is warranted.  In other words, the Board finds that reduction of this evaluation to 10 percent effective as of this date was improper and is void ab initio.  VA indeed failed to apply and follow all pertinent statutory and regulatory provisions.

With respect to procedural requirements, they are applicable here.  The reduction in the Veteran's back disability evaluation from 40 to 10 percent indeed resulted in a decrease in his compensation payments.  Efforts were made to meet all the procedural requirements, but they fell short.  The September 2007 rating decision put the Veteran on notice that his evaluation was subject to change.  The November 2009 rating decision proposed the aforementioned  reduction, and a contemporaneous letter informed him of his rights to request a hearing and submit evidence.  The April 2010 rating decision implemented the reduction effective over 60 days thereafter.  Both the November 2009 and the April 2010 rating decisions attempted to set forth the material facts and reasons for the reduction.  That there was improvement indeed was mentioned in the letter accompanying the former rating decision and in the latter rating decision.  However, neither rating decision actually discussed improvement.  There indeed was no comparison of the Veteran's back disability at that time to previously.  The April 2010 rating decision instead considered what the proper evaluation was as if a higher evaluation were at issue.  The November 2009 rating decision did at least indicate that the enumerated criteria for an evaluation of 40 percent were not met.  Yet such is inconsequential.  These criteria were not met even when the 40 evaluation was generously awarded, as set forth in the November 2006 rating decision.  That the rating continues to be somewhat generous is insufficient cause for a reduction.

The substantive standard, as inferred from above, is improvement rather than substantial material improvement.  The Veteran's back disability was rated at 40 percent from August 22, 2006, until July 1, 2010, or a period of just less than four years.  It is unclear how it was determined below that there had been improvement since no discussion was made in that regard.  In any event, improvement is not found even presuming all procedural requirements had been met.  Relative stability rather is found.  No non-medical indicators of improvement are evident.  Medical indicators of improvement are evident from the Veteran's examinations.

The Veteran had 90 degrees of forward flexion and 265 degrees of combined range of motion upon initial and repeated movement at the November 2006 examination, the examination that formed the basis for the 40 percent evaluation.  He similarly had 80 and 90 degrees of forward flexion accompanied by 250 and 260 degrees of combined range of motion upon initial and repeated movement at the August 2007 and May 2009 examinations, the examinations that formed the basis of the reduction.  Upon examination thereafter, he further similarly had 90 degrees of forward flexion and a combined range of motion of 230 degrees or greater during initial and repeated movement.  While the forward flexion at the November 2006 examination was with significant pain, there was at least some pain with forward flexion as well as in other directions at all the examinations thereafter.  Flare ups were referenced at the November 2006 examination as well as at all the subsequent examinations with the exception of the May 2009 examination.  No neurological abnormalities, such as motor strength, reflex, or sensory deficiencies, were detected at the November 2006, August 2007, or May 2009 examinations.

Acknowledgement is given, in addition to the aforementioned similarities, to the differences between the November 2006 examination and the later examinations.  The Veteran had to bend his knees to straighten back up after forward flexion at the November 2006 examination, but not any examinations thereafter.  Spasms were detected during the November 2006 examination, but not during any subsequent examinations.  As a whole, however, the similarities significantly outweigh these differences.  They not only are more numerous than the differences but also are more comprehensive, since they concern both back and associated neurological symptoms as well as the Veteran's function with his symptoms as opposed to simply the symptoms themselves.  One other difference is of import.  At the November 2006 examination, the Veteran's gait was normal.  It later deteriorated, as opposed to improved, in that the August 2007 examination noted that he walked with a marked limp and he otherwise was noted to have an antalgic gait.

III.  Higher Evaluations

A.  Schedular

Evaluations are assigned pursuant to VA's Schedule for Rating Disabilities.  Separate Diagnostic Codes identify various disabilities and the criteria for a specific evaluation to be assigned for that disability.  The evaluations represent as far as practicably can be determined the average impairment in earning capacity due to a disability.  38 U.S.C.A. § 1155.  An evaluation is assigned by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the evaluation criteria.  Id.; 38 C.F.R. § 4.10; Schafrath, 1 Vet. App. at 589.

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that evaluation of the disability is accurate.  38 C.F.R. § 4.2.  If two evaluations are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for it.  Otherwise, the lower evaluation is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however.  38 C.F.R. § 4.3.  He thus prevails if the evidence supports a higher evaluation or is in relative equipoise but does not prevail when it is against a higher evaluation.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Where entitlement to compensation has already been established and an increase in evaluation is at issue, as is the case here, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Consideration nevertheless must be given to whether staged evaluations are warranted.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which a disability exhibited symptoms meeting the criteria for different evaluations during the course of the appeal, a different evaluation for each of the time periods is assigned.

The probative value of the evidence must be assessed.  38 C.F.R. § 4.6.  In other words, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert, 1 Vet. App. at 49.  The competency and credibility of any lay evidence therefore must be assessed.  See Layno v. Brown, 6. Vet. App. 465 (1994) (noted that competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  Only the most relevant evidence need be discussed, however, even though all the evidence has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  This includes numerous diagnostic tests to include X-rays, MRIs, and a computerized tomography scan.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40.  Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness.  38 C.F.R. §§ 4.40, 4.59.  It also may be due to excess fatigability or incoordination.  38 C.F.R. § 4.45.  A higher evaluation for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

38 C.F.R. § 4.71a, Diagnostic Code 5003, addresses degenerative arthritis established by X-ray findings.  Evaluations are to be made thereunder based on limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  If evaluation on this basis results in a noncompensable evaluation, a 10 percent evaluation is assigned for each major joint or group of minor joints affected by limitation of motion.  Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or painful motion.  In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation.  The same with occasional incapacitating exacerbations warrants a 20 percent evaluation.

1.  Back Disability

The Veteran's back disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242.  While Diagnostic Code 5003 addresses degenerative arthritis generally, Diagnostic Code 5242 addresses degenerative arthritis specifically of the spine.  It, like other back conditions, is evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula).  Evaluations are to be made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching under the General Formula.  For the thoracolumbar spine, a 10 percent evaluation is merited when forward flexion is greater than 60 degrees but not greater than 85 degrees, combined range of motion is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness is present but does not result in abnormal gait or abnormal spinal contour, or there is a vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation requires forward flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is assigned when forward flexion is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine results in a 50 percent evaluation.  The maximum 100 percent evaluation is reserved for unfavorable ankylosis of the entire spine.  Normal range of motion is from zero to 90 degrees forward flexion, zero to 30 degrees extension, zero to 30 degrees left and right lateral flexion, and zero to 30 degrees left and right lateral rotation.  General Formula, Note (2); 38 C.F.R. § 4.71a, Plate V.  Normal combined range of motion is 240 degrees.  Id.
The General Formula additionally provides for the assignment of separate evaluations under appropriate Diagnostic Codes for any objective neurologic abnormalities associated with a disease or injury of the spine.  General Formula, Note (1).  This includes, but is not limited to, bowel or bladder impairment.

According to Diagnostic Code 5243, intervertebral disc syndrome (IVDS) is evaluated under either the above General Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever results in the higher rating. The IVDS Formula is based on incapacitating episodes. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  IVDS Formula, Note (1). Incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months is needed for a 10 percent rating. A 20 percent rating is for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months results in award of a 40 percent rating.  The maximum rating of 60 percent is awarded for incapacitating episodes having a total duration of at least six weeks during the past 12 months.

a.  Period Through August 21, 2006

At the February 2006 VA examination, the Veteran complained of back pain without radiation rated at seven out of 10 three to four days per week. He reported flare ups, such as when he had to lay flat on his back in bed for two days after changing a tire but denied incapacitating episodes. Assessment was a tender back with some spasms but no weakness. Forward flexion was to 95 degrees, extension was limited by pain to 20 degrees, right and left lateral flexion was limited by pain to 25 degrees, and right and left lateral rotation was limited by pain to 20 degrees. There was no change in these figures with repetition. He had to bend his knees and squat to straighten back up after forward flexion. No neurological deficit was found. According to subsequent VA treatment records, the Veteran complained of back pain rated at eight out of 10 after examination in February 2006.  His back was tender and exhibited muscle tightness.  There was approximately a 50 percent limitation in range of motion.  

Thereafter, in June 2006, the Veteran's left lower extremity had normal motor strength.  His right lower extremity had somewhat decreased motor strength in places.  His knee reflexes could not be elicited.  His right ankle reflex was normal, and his left was hypoactive.  In July 2006, the Veteran complained of back pain without radiation rated at four and 1/2 out of 10.  His gait was within normal limits with no appreciable deviation.  The back was tender.  Motor strength was normal, as were reflexes in the lower extremities except for in one of the knees.  Sensation in the right lower extremity was less than in the left lower extremity.

Given the above, the Board finds that a rating greater than 10 percent for a back disability for the period through August 21, 2006, is not warranted under the General Formula.  None of the criteria for even the next highest rating of 20 percent were met during this period.  Discussion of the criteria for even higher still evaluations of 40 percent, 50 percent, and 100 percent is thus unnecessary.

There is no indication of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Guarding was not referenced. Muscle spasms and related muscle tightness were found, but not an abnormal gait or abnormal spinal contour. The Veteran's gait was within normal limits. No mention was made of scoliosis, reversed lordosis, abnormal kyphosis, or any other spinal contour abnormality. Neither forward flexion greater than 30 degrees but not greater than 60 degrees nor combined range of motion not greater than 120 degrees is found even taking into account functional loss to include during flare ups. His forward flexion upon initial and repeated movement was well over 30 degrees on one occasion. At 95 degrees, it exceeded normal motion in this direction. His combined range of motion upon initial and repeated movement was well over 120 degrees on this occasion. Pain limited only 35 degrees of motion, leaving 205 degrees.

No basis exists for finding greater forward flexion or combined loss of motion than the aforementioned. The finding that there was approximately a 50 percent limitation in range of motion is assigned no probative value and could be interpreted as conveying that the Veteran had about 45 degrees of forward flexion and 15 degrees of motion in all other directions, close to normal forward flexion and very little motion in all other directions, or very little forward flexion with close to normal motion in all other directions. It is unclear which interpretation is correct. While it is true that all interpretations would result in about 120 degrees of combined range of motion, no precise measurement was provided. Of further note is that this occasion and the occasion in which combined range of motion was 205 degrees occurred in the same month. At no other point, whether before or after, was a combined range of motion at or near 120 degrees found. A lack of notation where notation would be expected may be considered. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). He received ongoing treatment, and thus it is likely that combined range of motion at only 1/2 of normal would have been documented had it existed. To the extent there was a combined range of motion of not greater than 120 degrees, then, it was an anomaly.

The Veteran is competent in reporting flare ups because they would have been within his personal experience. Layno, 6 Vet. App. at 465. Competent lay evidence may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). 

The Veteran is also credible because these factors do not reveal a substantial reason for doubt. He is self-interested in that this decision may result in monetary gain, but flare ups are facially plausible. Nothing suggests he did not experience them. Significantly, he did not specifically report that his flare ups included additional motion loss. He rather seemingly indicated that they involved increased symptoms such as pain. To the extent additional lost range of motion during flare ups may be inferred, however, no additional amount of motion loss has been pinpointed whether by him or otherwise.
The Board next finds that a separate evaluation is not warranted under the General Formula for any objective neurologic abnormality associated with the Veteran's back disability.  There is no indication of bowel or bladder impairment.  No complaints of such were lodged by the Veteran.  No findings of such were made.  The Veteran did not complain of any lower extremity problems.  Indeed, he consistently denied that his back pain radiated into his legs.  Some findings were made regarding leg problems.  Yet they were inconsistent.  No neurological deficit was found on one occasion.  On another, decreased motor strength on the right and decreased reflexes bilaterally existed.  On a third, there was decreased sensation on the right and one decreased reflex in one unidentified leg.  It follows that any neurological lower extremity problem was intermittent.  Of final import is that, regardless of how intermittent, no condition accounting for these problems was diagnosed and then attributed to the Veteran's back disability.

Turning to the IVDS Formula, the Board notes that the Veteran was not diagnosed with IVDS.  Assuming it should have been diagnosed, there is no indication of incapacitating episodes of any duration.  The Veteran denied such episodes.  He had physician treatment, but it was not for acute symptoms.  His visits were scheduled instead of on an emergent basis, in other words.  While his report of having to lay flat on his back in bed for two days is competent and credible for the same reasons as above, this bed rest was self-imposed instead of prescribed.  Use of the IVDS Formula, even if applicable, therefore would result in a noncompensable evaluation.  38 C.F.R. § 4.31.  The 10 percent evaluation assigned pursuant to the General Formula thus stands as the higher evaluation.

The Board finally finds that an evaluation in excess of 10 percent for a back disability for the period through August 21, 2006, cannot be awarded pursuant to Diagnostic Code 5003.  Set forth above was that there was compensable limitation of motion, specifically combined range of motion, during this period.  The General Formula instead of Diagnostic Code 5003 therefore must be used.  In any event, an evaluation higher than 10 percent is not available under Diagnostic Code 5003.  Each segment of dorsal or lumbar vertebrae indeed s considered a group of minor joints ratable on parity with a major joint.  38 C.F.R. § 4.45(f).
Consideration has been given to reasonable doubt in making the above determinations.  However, it does not apply because they were based on the preponderance of the evidence.  Consideration also has been given to staged evaluations within the period through August 21, 2006.  None are warranted because the above determinations cover this entire period.

b.  Period Beginning August 22, 2006

The pertinent evidence for a back disability for the period beginning August 22, 2006, was set forth above.  In light of this evidence, the Board finds that an evaluation in excess of 40 percent for a back disability is not warranted during this period under the General Rating Formula. The criteria for the higher evaluations of 50 and 100 percent have not been met.  Specifically, there is no indication of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine including both the thoracolumbar and cervical segments.  General Formula, Note (6) (the thoracolumbar and cervical spine segments are to be evaluated separately with the exception that one evaluation is assigned when there is unfavorable ankylosis of both segments).  There indeed is no indication of any ankylosis, whether unfavorable or favorable, of any part of the thoracolumbar spine or the cervical spine.

Ankylosis is immobility and consolidation of a joint.  Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007); Lewis v. Derwinski, 3 Vet. App. 259 (1992); Nix v. Brown, 4 Vet. App. 462 (1993); Shipwash v. Brown, 8 Vet. App. 218 (1995).  In other words, it is stiffening or fixation of a joint.  Dinsay v. Brown, 9 Vet. App. 79 (1996).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  General Formula, Note (5).  Unfavorable ankylosis is where the entire thoracolumbar spine or entire spine is fixed in flexion or extension and the results is one or more of the following:  difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching.  Id.  At no point has any ankylosis anywhere been found.  The Veteran always has had a significant amount of thoracolumbar motion in all directions, albeit with some pain, upon initial and repeated movement.  This amount has varied, which renders it impossible for the loss to be due to immobility, consolidation, stiffening, or fixation of the thoracolumbar segment of the Veteran's spine at a specific point.

Next, the Board considers whether a separate evaluation is warranted under the General Formula for any objective neurologic abnormality associated with the Veteran's back disability.  There is no indication of bowel or bladder impairment.  No complaints of such were lodged by the Veteran.  He indeed rather always denied such.  No findings of such were made.  Of note is that VA treatment records reference erectile dysfunction, but this condition never has been attributed to the Veteran's back disability.  With respect to the right lower extremity, he has reported radiation of his back pain only twice in 2010.  He has mostly denied such radiation or has not mentioned such radiation, and therefore it likely did not exist.  Buczynski, 24 Vet. App. at 221.  All of these reports and denials are competent and credible for the same reasons as above.  Various decreases in sensation, motor strength, and reflexes have been found beginning in 2010.  Yet no condition accounting for these problems has been diagnosed and then attributed to the Veteran's back disability.  With respect to the left lower extremity, the Veteran competently and credibly has reported occasional radiation of his back pain prior to February 2010 but persistent radiation since then.  Various decreases in sensation, motor strength, and reflexes have been found since shortly thereafter in 2010.  Left radiculopathy of the sciatic nerve finally has been diagnosed and attributed to the Veteran's back disability.

A separate evaluation, in sum, is warranted only for left sciatic nerve radiculopathy.  Evaluations for neurological conditions are assigned in proportion to motor and sensory impairment.  38 C.F.R. § 4.120.  Wholly sensory involvement is evaluated at the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a, paragraph before Diagnostic Code 8510.  The maximum evaluation for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis.  38 C.F.R. § 4.123.  The maximum evaluation for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis for the sciatic nerve.  Id.  For neuralgia, which is characterized usually by a dull and intermittent pain, the maximum evaluation absent tic douloureux or trifacial neuralgia is equal to that for moderate incomplete paralysis.  38 C.F.R. § 4.124.

38 C.F.R. § 4.124a, Diagnostic Code 8520, addresses paralysis of the sciatic nerve.  Diagnostic Codes 8620 and 8720 respectively address neuritis and neuralgia of the sciatic nerve.  A 10 percent evaluation is for mild incomplete paralysis. Moderate incomplete paralysis merits a 20 percent evaluation, while a 40 percent evaluation requires moderately severe incomplete paralysis.  Severe incomplete paralysis with marked muscle atrophy merits an evaluation of 60 percent.  The maximum 80 percent evaluation is reserved for complete paralysis such as when the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.  Mild, moderate, and severe are not defined.  However, mild is generally defined as "not being or involving what is extreme" or "not severe: temperate."  Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003).  Moderate is generally defined as "tending toward the mean or average amount or dimension."  Id. at 798.  Severe is generally defined as "of a great degree:  serious."  Id. at 1140.

Because the Veteran manifests non-sensory deficiencies, consideration may be given to more than the mild, or at most, the moderate degree.  Consideration thus is not limited on this basis to between 10 percent and 40 percent but may include 60 and 80 percent as well.  Yet the Veteran's left sciatic nerve radiculopathy has been determined to be more similar to neuralgia or possibly neuritis not characterized by organic changes rather than neuritis characterized by organic changes.  Indeed, pain that is intermittent and dull rather than constant and at times excruciating has been noted.  The maximum evaluation possible therefore is 20 percent for moderate incomplete paralysis or possibly 40 percent for moderately severe incomplete paralysis.  Consideration is limited to a maximum of 40 percent on this basis, in other words.  Here, the severity of the Veteran's left sciatic nerve radiculopathy is mild.  Such a determination has been made.  It is supported by the evidence.  Reflexes in the Veteran's left leg intermittently were found to be decreased.  They were such more often than not and sometimes were found to be decreased to include to the point of not being elicited.  However, his left leg sensation always was found to be normal.  Muscle atrophy in this leg further was not found, and motor strength in it was found to be only somewhat decreased intermittently.  Accordingly, an evaluation of 10 percent for left sciatic nerve radiculopathy separate from that for the Veteran's back disability is granted.  The effective date shall be February 2010, when symptoms of this condition became persistent.

Turning lastly to the IVDS Formula, the Board once again notes that the Veteran has not been diagnosed with IVDS.  It indeed was opined that he does not have IVDS.  Even if he did have IVDS, there is no indication of incapacitating episodes of any duration.  The Veteran denied such episodes on a few occasions.  While he has had physician treatment to include for acute symptoms, as evidenced by his visits to the emergency department, bed rest was not prescribed.  It follows that the bed rest that has been undertaken, if any since none has been reported, was at the Veteran's initiative.  Use of the IVDS Formula, if applicable, therefore would result in a noncompensable evaluation.  38 C.F.R. § 4.31.  The 40 percent evaluation currently assigned pursuant to the General Formula thus stands as the higher evaluation.

Consideration has been given to reasonable doubt in making the above determinations.  However, it does not apply because they were based on the preponderance of the evidence.  Consideration also has been given to staged evaluations within the period beginning August 22, 2006.  None are warranted because the above determinations cover this entire period.

2.  Right Knee Disability

The Veteran's right knee disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5258.  Hyphenated Diagnostic Codes are used when an evaluation for a particular disability under one Diagnostic Code is based upon evaluation under another Diagnostic Code.  See 38 C.F.R. § 4.27.  The four digits before the hyphen is the Diagnostic Code for the disability.  Id.  The four digits after the hyphen is the Diagnostic Code for the disability specifically found to be most analogous.  Id.

The criteria of Diagnostic Code 5010, via Diagnostic Code 5003, were set forth above.  It is reiterated that they reference the Diagnostic Codes concerning limitation of motion of the specific joint involved.  Diagnostic Code 5260 addresses limitation of motion of the leg with respect to flexion.  Flexion limited to 45 degrees warrants a 10 percent evaluation.  A 20 percent rating requires flexion limited to 30 degrees.  The maximum evaluation of 30 percent is reserved for flexion limited to 15 degrees.  Diagnostic Code 5261 addresses limitation of motion of the leg with respect to extension.  Extension limited to 10 degrees merits a 10 percent evaluation.  A 20 percent evaluation is reserved for extension limited to 15 degrees, while a 30 percent evaluation is reserved for extension limited to 20 degrees.  Extension limited to 30 degrees warrants a 40 percent evaluation.  The maximum 50 percent evaluation is awarded when there is extension limited to 45 degrees.  Normal range of motion is from 140 degrees flexion to zero degrees extension.  38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5258 addresses dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  The only evaluation provided for thereunder is 20 percent.

Several other Diagnostic Codes are potentially applicable to the Veteran's right knee disability.  Diagnostic Code 5256 is for ankylosis of the knee.  A 30 percent evaluation is warranted for a favorable angle in full extension or in slight flexion between 0 and 10 degrees.  In flexion between 10 and 20 degrees warrants an evaluation of 40 percent, while in flexion between 20 and 45 degrees warrants an evaluation of 50 percent.  The maximum 60 percent evaluation is reserved for an extremely unfavorable angle in flexion at 45 degrees or more.  Diagnostic Code 5257 pertains to other knee impairment due to recurrent subluxation or lateral instability.  It sets forth a 10 percent evaluation for slight impairment, a 20 percent evaluation for moderate impairment, and the maximum 30 percent evaluation for severe impairment.  Diagnostic Code 5259 concerns symptomatic removal of the semilunar knee cartilage.  The only evaluation provided for thereunder is 10 percent.  Diagnostic Code 5262 addresses impairment of the tibia and fibula.  A 10 percent evaluation requires malunion with slight knee or ankle disability.  Malunion with moderate knee or ankle disability merits a 20 percent evaluation, and malunion with marked knee or ankle disability merits a 30 percent evaluation.  The maximum evaluation of 40 percent is reserved for nonunion of the tibia and fibula with loose motion requiring a brace.  Finally, Diagnostic Code 5263 pertains to genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).  The only evaluation it provides for is 10 percent.

Pyramiding, evaluating the same disability or the same manifestation of a disability under different Diagnostic Codes, is to be avoided.  38 C.F.R. § 4.14.  It is possible, however, for there to be separate and distinct manifestations of the same disability such that evaluation under more than one Diagnostic Code is warranted.  The critical requirement is that none of the symptomatology is duplicative or overlapping.  Esteban v. Brown, 6 Vet. App. 259 (1994).  Two examples are notable.  First, separate evaluations are assigned where there is both a limitation of flexion and a limitation of extension of the same knee.  VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2004).  Second, separate evaluations are assigned for arthritis and for subluxation/instability or cartilage impairment of the same knee.  See VAOPGCPREC 09-98 (August 14, 1998), 63 Fed. Reg. 56704 (1998); VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); see also Esteban, 6 Vet. App. at 259; Licthenfels v. Derwinski, 1 Vet. App. 484 (1991).

Early VA treatment records document the following.  In November 2004, the Veteran's right knee surgical incisions were well-healed.  The knee was slightly warm to the touch with effusion, but it was not painful.  The tibia instead was tender.  Range of motion in the knee was from -10 to 95 degrees with pain at the extremes.  X-rays then and in February 2005 showed no joint effusion.

At the February 2006 VA examination, the Veteran complained of intermittent right knee pain rated at five or six out of 10 and locking up.  He further complained of increased swelling and range of motion loss during flare ups, but he could not estimate this loss.  Increased pain during flare ups additionally was mentioned.  Assessment revealed a well-healed 18 centimeter by a maximum of 1/2 inch knee scar.  There was no keloid formation, tenderness, erythema, or retraction of it, though the periodic lower end periodic grinding reported by the Veteran was noted to be perhaps from a retained suture.  The knee was tender with mild crepitus and small joint effusion, but it was not unstable.  Flexion was to 95 degrees and extension to zero degrees with some pain.  Repetition did not change these figures.

The Veteran complained of right knee instability, buckling, discomfort, and pain with standing for long periods at the November 2006 VA examination.  He also complained of flare ups.  Assessment revealed a healed, nontender knee scar.  The knee had crepitus and swelling, as shown by a 3/4 inch difference in circumference, but no heat or instability.  Range of motion was from zero to 120 degrees without pain.  There was no change in these figures with repetition.  X-rays showed degenerative changes to a mild degree.  A diagnosis including degenerative changes was made.  It was opined that the Veteran would have pain, incoordination, and excess fatigability during flare ups, but additional range of motion loss was not given on the basis that to do so would be speculative.

At the August 2007 VA examination, the Veteran complained of marked worsening of his right knee.  He specifically complained of swelling and occasional giving way without locking.  He reported intermittent flare ups of increased symptoms but no additional weakness or restriction in range of motion.  Assessment revealed a healed and intact knee scar that was not tender.  The knee had no redness, heat, or laxity, but it had moderate effusion.  The patella tracked normally without appreciable crepitus.  Range of motion was from zero to 105 degrees with pain at zero degrees and beginning at 95 degrees.  Repetition did not change these figures.

The Veteran complained of continued right knee pain and instability at the May 2009 VA examination.  A recent fall due to giving way was referenced.  It was noted that the Veteran has chronic symptoms rather than flare ups.  Assessment revealed an eight inch knee scar.  The knee was tender but had no effusion, heat, redness, synovial thickening, and was not unstable.  Flexion was to 100 degrees with pain and extension to zero degrees without pain.  There was no change in these figures with repetition.  X-rays showed no joint effusion.

Subsequent VA treatment records reveal the following.  In August 2009, the Veteran reported right knee pain, swelling, and giving out twice after he was struck by a car.  The knee was mild to moderately tender, swollen with mild effusion, and had some laxity.  X-rays and MRI were unremarkable with the exception of showing a minimal cartilage irregularity.  In March 2012, the Veteran complained of right knee pain rated at seven out of 10.  It was characterized as deteriorating.  There was no swelling or warmth in the knee.  It was tender but did not exhibit laxity, warmth, redness, or new effusion in April 2012.  In May 2012, it was tender to include on motion.  The pain was characterized as stable.  There was mild swelling but no erythema.  X-rays showed no joint effusion.  June 2012 MRI showed meniscal cartilage abnormalities.

At the July 2012 VA examination, the Veteran reported flare ups of right knee pain and swelling.  Assessment revealed a knee scar, but it was not painful, unstable, or greater than 39 square centimeters/6 square inches.  The knee was swollen, but it was not tender.  Muscle strength was normal, and there was an absence of instability, shin splints, and patellar subluxation/dislocation.  A cartilage condition with frequent episodes of joint locking, pain, and effusion was noted.  Flexion was to 120 degrees with pain beginning at 110 degrees and extension was to zero degrees without pain.  Repetition did not change these figures.  X-rays showed mild degenerative changes.  It was noted that they did not show patellar subluxation.

The Board finds, based on the above, that an evaluation in excess of 20 percent for a right knee disability is not warranted.  As the Veteran's current 20 percent evaluation for his right knee disability is the only evaluation allowable under Diagnostic Code 5258, it follows that this Diagnostic Code cannot be used to award a higher evaluation.  This is true regardless of the severity (the current evaluation already signifies that it is frequent, notwithstanding any variation set forth herein) of the effusion, or escape of fluid, that has been found due to his semilunar cartilage.  Dorland's at 603.  It also is true regardless of the severity (the current evaluation once again already signifies that it is frequent, notwithstanding any variation set forth herein) of the locking and pain that has been reported by him due to his semilunar cartilage.  In other words, he is competent to so report for the reason stated above, but his credibility in this regard need not be discussed.

Diagnostic Codes 5259 and 5263 similarly cannot be used to award a higher evaluation.  Indeed, each provides only for a 10 percent evaluation.  Each provides only for an evaluation lower than the Veteran's current evaluation, in other words.  These Diagnostic Codes further are not applicable to him.  There is no indication that he has had the semilunar cartilage, or the meniscus, of his right knee removed.  At no point was any such procedure mentioned, whether by the Veteran or otherwise.  Diagnostic testing further did not reveal the meniscus to be missing.  There similarly is no indication of genu recurvatum.  No diagnosis of genu recurvatum was made.  Genu recurvatum is hyperextension of the knee.  Dorland's at 782.  The Veteran has not reported that his right knee bends backwards.  Minus ten degrees of extension was found once.  This was shortly after his surgery, however.  Further, no amount of hyperextension was found in the eight years that followed.  The hyperextension thus was an anomaly.

Diagnostic Codes 5262 and 5256, which both provide for a maximum evaluation higher than 20 percent and therefore could be used to award a higher evaluation, additionally are not applicable.  There is no indication of malunion or nonunion of the tibia and fibula.  The Veteran's fibula never was mentioned, whether by him or otherwise.  His tibia was mentioned, but only once immediately following his surgery.  Even then it was noted to be nothing more than painful.  With respect to ankylosis, the aforementioned definition of is reiterated.  There is no indication that the Veteran's right knee is ankylosed in extension or flexion at any degree.  As discussed below in greater detail, the amount of range of motion lost in his right knee has varied.  It follows that the loss has not been attributable to immobility, consolidation, stiffening, or fixation of the knee at a specific point.  
Diagnostic Code 5257 also provides for a maximum rating higher than 20 percent and could be used to award a higher rating. Yet severe recurrent subluxation or lateral instability, which is necessary for the next highest and maximum evaluation of 30 percent, is not found. No subluxation or lateral instability of any severity or frequency is found, rendering the Diagnostic Code inapplicable. The Veteran has not reported subluxation, or an incomplete or partial dislocation. Dorland's at 1817. None has been found. He has reported with some consistency right knee instability, buckling, and giving way resulting in at least one fall.  He is competent to do so for the reason stated above. However, he is not credible in this regard. The medical evidence indeed is in conflict with his reports. Laxity in his right knee was found once. This was subsequent to his report of having been hit by a car, a report which is competent for the reason stated above and is credible because there appears to be no reason for doubt. Yet it is of import that laxity is not the same thing as instability. Indeed, laxity is slackness or displacement (whether normal or abnormal) in the motion of a joint. Id. at 1026. On all other occasions, to include when he was hit by a car and a few thereafter, his right knee was found to be stable, with no laxity. It is facially implausible that he could have more or less persistent right knee instability as he reports but not manifest it at these times.

That leaves Diagnostic Codes 5260 and 5261.  There is no indication of flexion limited to 45 degrees or less or extension limited to 10 degrees or more, the respective requirements for a compensable evaluation under these Diagnostic Codes, even taking into account functional loss to include during flare ups.  Flexion upon initial and repeated movement ranged from a low of 95 degrees to a high of 120 degrees.  In other words, it always was limited but at well more than 45 degrees.  With the exception of the anomalous instance discussed above in which extension was to -10 degrees, extension upon initial and repeated movement always was to zero degrees, thus illustrating normal motion.  Some of the Veteran's range of motion was with pain, particularly at the extremes and more so with respect to flexion than extension, but this is of no consequence.  Painful motion is not in and of itself functional loss, and it does not constitute limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Further, there is no basis for finding any range of motion loss greater than the aforementioned during a flare up.  The Veteran's report later on that his flare ups did not include additional motion loss are competent for the reason stated above as well as credible because no reason is found for doubt.  He was unable to pinpoint the additional amount of motion loss during flare ups also competently and concededly credibly reported by him early on.  This amount has not otherwise been specified.  It indeed was determined once that to opine in this regard would be speculative.  This presumably is because the Veteran was not experiencing a flare up at that time.  "Pure speculation or remote possibility" is insufficient when considering the degree of disability present.  38 C.F.R. § 3.102.

Next, the Board finds that a separate evaluation of 10 percent for right knee arthritis is warranted as of November 2006.  The Veteran has noncompensable limitation of motion, to summarize the aforementioned.  His November 2006 and July 2012 X-rays showed mild degenerative changes.  He has degenerative arthritis, in other words.  Diagnostic Code 5003 is, therefore, for application.  It is reiterated that the Veteran's range of motion has been with some pain.  Other findings include swelling and crepitus.  These symptoms therefore have been objective confirmed.  The knee constitutes one major joint.  38 C.F.R. § 4.45(f).  Accordingly, an evaluation of 10 percent for right knee arthritis separate from that for the Veteran's right knee disability is granted.  The effective date shall be November 2006, when X-rays first established applicability of Diagnostic Code 5003.

Acknowledgement finally is given to the Veteran's right knee scar.  At the time he filed his claim, five Diagnostic Codes under 38 C.F.R. § 4.118 addressed scars other than on the head, face, or neck.  Diagnostic Code 7801 pertained to such scars that are deep or that cause limited motion.  It established evaluations ranging from 10 to 40 percent depending on the area affected, with the lowest 10 percent evaluation requiring an area of six square inches (39 square centimeters) or greater.  Diagnostic Code 7802 was for such scars that are superficial and do not cause limited motion.  It established a maximum 10 percent evaluation if the area affected was 144 square inches (929 square centimeters) or greater.  Diagnostic Code 7803 concerned such scars that are superficial scars and unstable, while Diagnostic Code 7804 addressed such scars that are superficial and painful on examination.  Both established a maximum evaluation of 10 percent.  Diagnostic Code 7805 concerned other such scars.  It provided that evaluation be based on limitation of function of the affected body part.  A superficial scar was one not associated with underlying soft tissue damage.  Note (2), Diagnostic Codes 7802 and 7803; Note (1), Diagnostic Code 7804.  A deep scar was one associated with this damage.  Note (2), Diagnostic Code 7801.  An unstable scar was one where, for any reason, there is frequent loss of the skin covering it.  Note (1), Diagnostic Code 7803.

Revisions to these Diagnostic Codes became effective on October 23, 2008, during the pendency of the Veteran's appeal.  73 Fed. Reg. 54,708 (2008); 77 Fed. Reg. 2,909 (2012).  These revisions are applicable only to claims received by VA on or after this date or if the Veteran requests review pursuant to them, however.  Here, the Veteran filed his claim prior to 2008, as discussed above.  None of his statements, even liberally construed, constitute a request for review under the revised scar provisions.  No discussion of the revisions accordingly is necessary.

Here, the Board finds that a separate evaluation for a right knee scar is not warranted.  None of the Diagnostic Codes is applicable.  There is no indication that the Veteran's scar is associated with underlying soft tissue damage.  It thus is superficial rather than deep.  It has not been noted to cause limitation of motion or other function of his right knee.  The scar has not been unstable or painful on examination.  Indeed, opposite findings have been made.  The scar finally is not 144 square inches (929 square centimeters) or more.  It rather is much smaller, variously described as not greater than six square inches (39 square centimeters), eight inches, and 18 centimeters by a maximum of 1/2 inch.

Consideration has been given to reasonable doubt in making the above determinations.  However, it does not apply because they were based on the preponderance of the evidence.  Consideration also has been given to staged evaluations.  None are warranted because the above determination concerning the right knee disability covers the entire period under appeal while the above determination concerning right knee arthritis covers the entire period under appeal beginning from its November 2006 effective date.

B.  Extraschedular

The alternative to assigning an evaluation schedularly is to assign an evaluation on an extraschedular basis.  38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  There are three steps to be taken regarding extraschedular evaluations.  Thun v. Peake, 22 Vet. App. 111 (2008).  A determination of whether the evidence presents such an exceptional disability picture that the applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made.  If these criteria are inadequate, it second must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for consideration of an extraschedular evaluation.

Neither the Veteran nor his representative specifically has argued for an extraschedular evaluation for his back disability or right knee disability.  There is no indication that these disabilities cannot be contemplated adequately by the applicable schedular evaluation criteria discussed above.  The Veteran's reported and/or found back symptoms, which primarily have consisted of pain, decreased range of motion, spasms, and associated neurologic deficiencies in the left leg, specifically were accounted for by these criteria and associated statutes, regulations, and caselaw.  The same is true for his reported and/or found right knee symptoms, which primarily have consisted of pain, decreased range of motion, swelling, crepitus, instability, buckling, giving way, locking, and effusion.  Evaluation was based on the aforementioned sources.

Higher evaluations and separate evaluations exist pursuant to these sources.  As explained above, however, an evaluation of 10 percent prior through August 21, 2006, and of 40 percent beginning August 22, 2006, with a separate evaluation of 10 percent for left leg radiculopathy effective February 2010 accurately described and describes the severity of the Veteran's back.  A 20 percent evaluation with a separate 10 percent evaluation for arthritis effective November 2006 accurately describes the severity of the Veteran's right knee.  In other words, the effect his disabilities have on him is encompassed by the aforementioned evaluations.  This includes his reports, which are competent and credible for the same reasons as above, of problems with activities of daily living, an inability to run and climb, an inability to walk very far or stand or sit to include drive very long, an inability to play with his kids, and difficulty squatting and lifting.  It also includes the fact that he took and takes medication, has difficulty sleeping due to his symptoms, uses crutches on occasion, and uses a knee brace and a cane regularly.

Because the applicable schedular rating criteria are adequate, the Board does not find an exceptional back or right knee disability picture.  Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary.  Referral for consideration of the assignment of an extraschedular evaluation further is not warranted.

IV.  TDIU

Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  A substantially gainful occupation is an occupation at which a livelihood is earned.  VA Adjudication Procedure Manual, Part IV.ii.2.F.24.d.  It thus is "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days" actually worked.  Faust v. West, 13 Vet. App. 342 (2000).  It does not encompass positions of marginal employment where annual income does not exceed the poverty threshold for one person or where annual income exceeds this threshold because the employment is in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16(a).  In determining whether a claimant is unable to engage in a substantially gainful occupation, consideration may be given to level of education, special training, and previous work experience but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).
A TDIU is granted on a schedular basis when a claimant is unable to secure or follow a substantially gainful occupation due to a service-connected disability or service-connected disabilities evaluated at less than 100 percent.  38 C.F.R. § 4.16(a).  If the claimant has one service-connected disability, it must be evaluated at 60 percent or more.  If the claimant has two or more service-connected disabilities, at least one must be evaluated at 40 percent or more and the combined evaluation of all must be 70 percent or more.  Disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, as well as disabilities resulting from common etiology or a single accident and affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric) will be considered as one disability with respect to the 60 percent or 40 percent evaluation requirement.  The combined evaluation is derived not by simply adding together the evaluations for each disability but by use of the combined ratings table.  38 C.F.R. § 4.25.  Where the claimant does not meet the schedular evaluation requirements, a TDIU may be granted on an extraschedular basis if he is unemployable due to a service-connected disability or service-connected disabilities.  38 C.F.R. § 4.16(b).  Referral to the Director of the C&P Service is required because VA, to include the Board, cannot assign an extraschedular TDIU in the first instance.  Id.; Bagwell, 9 Vet. App. at 337; Floyd, 9 Vet. App. at 88; Shipwash, 8 Vet. App. at 218.

Like above, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran.  Gabrielson, 7 Vet. App. at 36, Masors, 2 Vet. App. at 18; Wilson, 2 Vet. App. at 614; Hatlestad, 1 Vet. App. at 164; Gilbert, 1 Vet. App. at 49.  The competency and credibility of any lay evidence therefore once again must be assessed.  See Layno, 6. Vet. App. at 465.  Also like above, the benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  He thus prevails if the evidence supports a TDIU or is in relative equipoise but does not prevail when it is against a TDIU.  Finally like above, only the most relevant evidence need be discussed even though all the evidence must be and thus has been reviewed.  Gonzales, 218 F.3d at 1378.
The Veteran's only service-connected disabilities as of yet are those discussed herein.  To summarize the determinations made concerning them, his back disability was evaluated at 10 percent for the period through August 21, 2006, and has been evaluated at 40 percent for the period beginning August 22, 2006.  A separate 10 percent evaluation for left sciatic nerve radiculopathy is awarded effective November 2010.  The Veteran's right knee disability has been evaluated at 20 percent.  A separate 10 percent evaluation for right knee arthritis is awarded effective November 2006.  It follows that for the periods through August 21, 2006, and beginning August 22, 2006, through October 2006, the back and right knee disabilities were the only ones present.  They both affect the orthopedic system, and therefore are considered as one.  However, this yields an evaluation less than 60 percent of only 30 (rounded from 28) percent for the period through August 21, 2006, and of only 50 (rounded from 52) percent for the period beginning August 22, 2006, through October 2006.  For the period beginning November 2006 through January 2010, right knee arthritis was added to the back and right knee disabilities.  It also affects the orthopedic system, so consideration as one again is undertaken.  This yields an evaluation of exactly 60 (rounded from 57) percent.  For the period beginning February 2010, associated left sciatic nerve radiculopathy was added to the back and right knee disabilities and right knee arthritis.  This disability is neurological rather than orthopedic.  The back disability is evaluated at 40 percent, but the combined evaluation of all disabilities is less than 70 percent at 60 (rounded from 61) percent.

A TDIU thus may be awarded on a schedular basis only with respect to the period beginning November 2006 through January 2010.  As such, the relevant inquiry for this period is whether the Veteran's back disability, right knee disability, and right knee arthritis alone were of sufficient severity to render him unable to secure or follow a substantially gainful occupation.  A TDIU with respect to the periods through August 21, 2006; beginning August 22, 2006, through October 2006; and beginning February 2010 may be awarded only on an extraschedular basis.  The relevant inquiry for these periods is whether the Veteran's back disability, right knee disability, right knee arthritis, and where applicable left sciatic nerve radiculopathy were or are of sufficient severity to render him unemployable.
As of January 2002, the SSA determined that the Veteran was disabled as of January 2002.  No primary diagnosis for this determination was based was specified, but a secondary diagnosis of fractures of the lower limb was denoted.  Associated treatment records considered in making the determination concerned the Veteran's back and right knee in addition to numerous other conditions such as chest pain, rib pain, high blood pressure, a punctured lung, and headaches.

The Veteran has reported in various statements beginning in September 2003 and at VA examination that he has a high school education and has worked, to include in the service, as a truck driver, development trainer, cargo specialist, materials handler, spinner, and most recently as a lumber stacker.  He also has reported training in forklift and crane operation, bus driving, and radio transmitting.  In the September 2003 statement, the Veteran indicated becoming too disabled to work and leaving his full-time job in January 2002 due to his back and right knee.  Upon VA examination in March 2004, he recounted that he quit working in August 2003 because of his right knee.  He stated that he became unable to work in 2001 due to his back and right knee at the February 2006 examination.  In his August 2006 claim, the Veteran stated that he has state disability.  He noted in a November 2006 statement that he last worked full-time in December 2000 or January 2001.  He additionally indicated currently not being able to work due to his back, right knee, and heart monitor.

Upon examination in November 2006, the Veteran reported that he quit his job in 2001 due to his back.  It was determined that he no longer was capable of doing that type of manual labor because of his back and right knee.

The Veteran set forth that all jobs in his area required standing all day, which he cannot do because of his right knee, in his September 2007 notice of disagreement.  He further set forth that he cannot go to school because he cannot sit all day long because of his back.  In his June 2008 substantive appeal (VA Form 9), the Veteran reiterated that he is on state disability.  An unspecified employer verified in a January 2009 statement that he performed production support from April 2001 to February 2002.  However, his last day of work was listed as being in January 2002.  No reason for termination was provided.

In a March 2009 statement, the Veteran reiterated that he cannot stand for long with his right knee and cannot sit for long with his back.  He stated that he has been denied jobs after potential employers see his right knee scar.  He indicated in a May 2012 statement that a VA representative told him he should be deemed 100 percent disabled by VA since he has state disability.

The Veteran noted having applied unsuccessfully for jobs as recently as 2011 at the July 2012 examination.  Specifically, he noted applying to work in a munitions factors but being labeled a job hazard because of his right knee during a pre-employment physical.  It was opined that he could do light physical labor or sedentary labor despite this knee.  It further was opined that the Veteran's back with its associated left sciatic nerve radiculopathy would not preclude an occupation.  Finally, it was opined that his right knee in combination with his back and its associated left sciatic nerve radiculopathy would not preclude an occupation.  The examination findings, which showed little functional loss regarding the back, as well as other findings from review of the claims file and the Veteran's job seeking activities were noted as the rationale for these opinions.

Pointed out by the Veteran in a March 2013 statement is that the only places hiring in his area are munitions factories, lumber mills, logging companies, and trucking companies.  He reiterated that munitions factories won't hire him with his right knee scar.  With respect to lumber mills, he indicated that there are no light physical labor positions.  The Veteran stated that he cannot do logging because he is not trained to do so and is allergic to stings.  He finally stated that he does not have the commercial driver's license required to be a trucker.

Given the above, the Board finds that the Veteran's back and right knee disabilities and right knee arthritis alone were not of sufficient severity to render him unable to secure or follow a substantially gainful occupations for the period beginning November 2006 through January 2010.  The Board also finds that the Veteran's back and right knee disabilities alone were not of sufficient severity to render him unemployable for the periods through August 21, 2006, and beginning August 22, 2006, through October 2006.  The same is true, with the addition of right knee arthritis and left sciatic nerve radiculopathy, for the period beginning February 2010.  All indications are that the Veteran has not been employed, whether marginally or otherwise, during any of the aforementioned periods.  That he has not found a job despite some looking, while relevant, is not dispositive.  Indeed, being unemployed is not synonymous with unemployability.  The Veteran's report, which is competent for the same reason as above and shall be assumed credible for the sake of argument, that he cannot obtain work he is qualified to do in his area due to the aforementioned disabilities is not enough, in other words.  What matters is whether or not he is capable of doing working he is qualified for notwithstanding them.  This inquiry is general in nature in that is does not factor into consideration specifics such as the positions actually available in a geographical location.

It is undisputed that the Veteran's back disability, right knee disability, right knee arthritis where applicable, and associated left sciatic nerve radiculopathy where applicable, have interfered with his ability to work.  This is obvious from the above discussions.  However, the aforementioned alone have not prevented him from working altogether.  He is best suited for physical labor as a result of his lack of higher education, previous employment history predominantly composed of manual positions, and training for such positions.  Sedentary labor, but only at the entry level, is also a possibility given this background.  It is reiterated that the absence of these types of jobs in his area is of no consequence.  There is agreement among two determinations that the Veteran has not been capable of strenuous physical positions such as the lumbar stacking he did in the past during any of the relevant periods.  Yet it has been determined that jobs involving light physical labor and sedentary labor are, and thus were, still possible.  Reports from the Veteran that he cannot stand or sit all day, which are competent and credible for the same reasons as above, are not inconsistent with this determination.  Light physical tasks generally involve standing but also allow for some sitting whereas sedentary tasks generally involve sitting but also allow for some standing.  Thus, neither contemplates strict all day standing or sitting.
Acknowledgement is given to the Veteran's report, which is competent for the same reason as above and shall be assumed credible for the sake of argument, that he is on state disability.  Acknowledgement also is given to the fact that he was deemed disabled by the SSA prior to any of the relevant periods here.  Little inference can be drawn from the receipt of state disability benefits, as there is no indication on what was the precise determination reached.  Even assuming it is that the Veteran is too disabled to work, there is no indication what conditions were considered in arriving at the determination.  The SSA determination that the Veteran is too disabled to work, by all indications, was based upon consideration of other conditions in addition to his back and right knee disabilities (the determination was made before right knee arthritis and associated left sciatic nerve radiculopathy first manifested).  While this is allowable by the SSA, is it not by VA.  The purpose of these entities, though both are run by the government, indeed is not the same.  In any event, VA is not bound by the SSA determination.  Collier v. Derwinski, 1 Vet. App. 413 (1991).

In sum, there is no basis upon which to justify potentially awarding a TDIU on an extraschedular basis for the various periods in which a schedular TDIU is not possible.  Referral to the Director of the C&P Service therefore is not required.  A schedular TDIU for the sole period such can be awarded also is not justified.  Consideration has been given to reasonable doubt in making these determinations.  However, it does not apply because they were based on the preponderance of the evidence.

ORDER

The reduction to 10 percent being void, restoration of a 40 percent evaluation for a back disability is granted.  This restoration is effective July 1, 2010, subject to the statutes and regulations governing the payment of monetary benefits.

An evaluation in excess of 10 percent for the period on appeal through August 21, 2006, and in excess of 40 percent for the period on appeal beginning August 22, 2006, for a back disability is denied.
A 10 percent evaluation for left sciatic nerve radiculopathy is granted effective February 2010, subject to the statutes and regulations governing the payment of monetary benefits.

An evaluation in excess of 20 percent for a right knee disability is denied.

A separate 10 percent evaluation for right knee arthritis is granted effective November 2006, subject to the statutes and regulations governing the payment of monetary benefits.

A TDIU is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs