Citation Nr: 1320204 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-34 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the thoracolumbar spine (thoracolumbar spine disability). 2. Entitlement to an evaluation in excess of 10 percent for retropatellar pain syndrome of the left knee with patellar tendonitis (left knee disability). 3. Entitlement to an evaluation in excess of 10 percent for retropatellar pain syndrome of the right knee with patellar tendonitis (right knee disability). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from May 1977 to May 2003. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). In December 2012, the Board remanded the issues on appeal to the RO to obtain additional treatment records and VA evaluations of the Veteran's back and knees. Additional treatment reports were added to the record; and VA examinations of the back and knees were conducted in April 2013 and added to the record. As additional treatment reports and VA evaluations of the back and knees were obtained and added to the claims files, there has been substantial compliance with the December 2012 remand instructions with respect to the issues decided below. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Forward flexion of the thoracolumbar spine was from 0 to at least 60 degrees on VA examinations during the appeal period, with pain-free flexion to 75 degrees in April 2013. 2. Range of motion of the right leg was from 0 to at least 125 degrees on VA examinations. 3. Range of motion of the left leg was from 0 to at least 100 degrees on VA examinations. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for thoracolumbar spine disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010-5237 (2012). 2. The criteria for an evaluation in excess of 10 percent for right knee disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5024 (2012). 3. The criteria for an evaluation in excess of 10 percent for left knee disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5024 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in April 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased rating. The Veteran was also informed in the letter about effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private medical evidence was subsequently added to the claims files. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA examinations were conducted in March 2011 and April 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate, as they provide the current symptomatology of the Veteran's low back and bilateral knee disabilities. Accordingly, there is adequate medical evidence of record to make a determination on the issues on appeal and VA's duty to assist with respect to obtaining a VA examination in this case has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence that is pertinent to the claims decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claims. The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Decision Review Officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from The Texas Veterans Commission. The representative and the DRO asked questions to draw out the current state of the Veteran's disabilities. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for increased ratings. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claims Increased Rating Claims Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45 (2012). The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Low Back Disability The Veteran's thoracolumbar spine disability is evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237 (traumatic arthritis-lumbosacral strain). See 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5237 (2012). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Cod 5010 provides that traumatic arthritis will be rated as degenerative arthritis under DC 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the General Rating Formula for Diseases and Injuries of the Spine ("General Rating Formula"), Diagnostic Code 5237 (lumbosacral or cervical strain) can be evaluated under the following general rating formula for diseases and injuries of the spine: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). An MRI of the lumbar spine in May 2008 showed mild to moderate diffuse spondylosis, with multilevel degenerative facet disease, and mild disc degeneration. The Veteran was provided a VA back evaluation in October 2008, which included review of the claims files. Motion of the low back included flexion from 0 to 70 degrees, extension from 0 to 30 degrees, lateral flexion to each side from 0 to 30 degrees, and bilateral rotation from 0 to 45 degrees. There was pain on forward flexion from 50 to 70 degrees. An MRI of the lumbar spine in September 2009 showed diffuse spondylosis with bilateral degenerative joint disease and multilevel degenerative disc disease. A December 2009 report from Central Texas Sport and Spine reveals that the Veteran was given facet injections at L3-S1 on the left. The Veteran complained on VA evaluation in January 2010 of moderate to severe non-radiating back pain. He had not had any incapacitating episodes or acute flare-ups requiring Emergency Room management in the previous year. He used a self-prescribed back brace and took pain medication as needed. Range of motion included forward flexion from 0 to 80 degrees, backward extension from 0 to 20 degrees, lateral flexion to each side from 0 to 25 degrees, and bilateral rotation from 0 to 25 degrees. All motion was accompanied by moderate discomfort. There was objective evidence of painful motion. Motor and sensory evaluations were normal. There was no additional limitation after repetitive testing. The diagnosis was degenerative joint disease and degenerative disc disease of the lumbosacral spine with residuals. The Veteran testified at his RO hearing in February 2011 that his thoracolumbar spine disability had increased in severity since the previous VA evaluation. The Veteran complained on VA evaluation in March 2011 that his thoracolumbar spine disability had gotten worse over the past year. Range of motion included forward flexion from 0 to 60 degrees, backward extension from 0 to 30 degrees, lateral flexion to each side from 0 to 30 degrees, and bilateral rotation from 0 to 30 degrees. Repetitive motion did not decrease range of motion or function. There was weakness but no spasm. Decreased lumbar lordosis was noted. The diagnoses were degenerative joint disease and degenerative disc disease of the thoracolumbar spine. VA treatment records for December 2012 reveal back pain to the touch in the lumbar and paralumbar areas; the assessment was worsening of low back pain with muscle spasm on the right. The Veteran complained on VA evaluation in April 2013 of right-sided pain/spasm, which was helped by medication. The Veteran said that he last worked as a part-time bus driver but was let go because he was taking Percocet; he indicated that he rarely took this drug currently. Pain-free range of motion included forward flexion from 0 to 75 degrees, backward extension from 0 to 10 degrees, lateral flexion from 0 to 20 degrees on the right and from 0 to 30 degrees or more on the left, and bilateral rotation from 0 to 20 degrees. There was no additional loss of motion after repetitive testing. He had guarding and/or muscle spasm. Strength and sensation were normal. The examiner concluded that the Veteran's low back condition did not impact his ability to work. Degenerative joint disease and degenerative disc disease were diagnosed. To warrant a rating in excess of 20 percent for thoracolumbar spine disability, there would need to be evidence of forward flexion of the throacolumbar spine to 30 degrees or fewer or evidence of favorable ankylosis of the entire thoracolumbar spine. There is no evidence of favorable ankylosis, meaning fixation of a spinal segment in the neutral position, of the thoracolumbar spine. With respect to range of motion, flexion of the low back has been to at least 60 degrees on VA examinations during the appeal period, which warrants no more than a 20 percent rating. In fact, he had pain-free motion from 0 to 75 degrees in April 2013. The Court has held that when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness, excess fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the schedular criteria do not subsume sections 4.40 and 4.45). A rating in excess of 20 percent is not warranted under DeLuca because flexion of the low back has been to at least 60 degrees. Despite a notation in March 2011 of weakness, it was noted on that evaluation, as well as on evaluation in April 2013, that repetitive motion did not decrease range of motion or function, and the limitation of function due to pain does not mroe closely approximate the criteria for the next higher level of disability. Bilateral Knee Disability The resolution of the claims for the left and right knee disabilities involves the application of identical law to similar facts. Therefore, the issues will be handled together for the sake of economy. Under 38 C.F.R. § 4.71a, Diagnostic Code 5024, tenosynovitis is rated as limitation of motion of the affected part like arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2012). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II (2012). Diagnostic Code 5256 addresses ankylosis of the knee and authorizes ratings from 30 to 60 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012). Diagnostic Code 5257 provides ratings for impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). Diagnostic Code 5260, limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261, limitation of extension, of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. § 4.71, Plate II (2012) (showing normal flexion and extension as between 0 degrees and 140 degrees). Under Diagnostic Code 5262, a 40 percent is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace; a 30 percent rating is assigned for malunion with marked knee or ankle disability and a 20 percent is assigned for moderate knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). VA treatment records for March 2008 reveal normal knee movement, bilaterally. X-rays of the right knee showed osteoarthritic change. An MRI of the right knee in April 2008 showed osteoarthritis, with a possible meniscus tear. An MRI of the left knee in May 2008 showed mild degenerative joint disease. According to a December 2008 medical report from R. H. Lewis, M.D., the Veteran complained of severe left knee pain. The diagnoses were left knee acute inflammation and left knee osteoarthritis. The Veteran complained on VA evaluation in January 2010 of aching, stiffness, swelling, and pain in both knees on a daily basis. He had not had any incapacitating flare-ups in the past year. Range of motion of the knees was from 0 to 140 degrees. There was no additional funcitonal loss after repetitive motion. The diagnosis was retropatellar pain síndrome of the knees with mild early osteoarthritis. According to Darnall Army Hospital records for November 2011, the Veteran's knees had good range of motion. The Veteran testified at his RO hearing in February 2011 that he had bilateral knee pain and that his knees felt like they were giving way. The Veteran complained on VA evaluation in March 2011 that his bilateral knee condition had gotten worse over the past year, especially on the left. He had had steroid injections. His condition was helped by taking weight off of his knees and by taking Percocet. It felt like his left knee might give way, although he had not fallen. Range of motion of the knees was from 0 to 130 on the right and from 0 to 100 on the left. There was guarding of movement and indications of pain on movement. The Veteran had a normal gait, and there was no loss of function after repetitive movement. The bilateral knee condition did not cause impairment of health. The diagnosis was retropatellar pain syndrome, degenerative joint disease, of both knees. The Veteran complained on VA evaluation in April 2013 of flare-ups of knee pain. Physical examination revealed pain-free motion from 0 to 125 degrees bilaterally. There was tenderness to palpation on the right. He occasionally used a knee brace. There was no loss of lower extremity strength, no instability, and no functional loss after repetitive motion. The examiner noted that the bilateral knee disorder did not impact the Veteran's ability to work. The impression was mild degenerative joint disease. To warrant a rating in excess of 10 percent for knee disability based on limitation of motion, there would need to be evidence of flexion limited to 30 degrees or extension limited to 15 degrees. Because the medical evidence shows that range of motion of the lower extremities has been from 0 to at least 100 degrees throughout the appeal period, with pain-free motion of each knee from 0 to 125 degrees on the most recent VA evaluation in April 2013, a rating in excess of 10 percent is not warranted for either knee under the schedular criteria for limitation of motion. Additionally, because there is no evidence of ankylosis, dislocation of semi-lunar cartilage, or malunion of the tibia and fibula, a higher evaluation is not warranted under another diagnostic code for the knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262. As previously noted, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements and 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The medical evidence does not show knee symptomatology that, based on the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, more nearly approximates the criteria for an increased evaluation at any time during the appeal because there was no additional limitation of motion reported on repetitive testing on evaluations in January 2010, March 2011, and April 2013. In VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5257 (2012). In this case, however, despite the Veteran's complaints in March 2011 that his left knee felt that it might give way, the Veteran said that he had not fallen and the medical evidence on file does not show any knee instability. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (Observing that it is the Board's responsibility to evaluate the probative value of all evidence presented). Consequently, separate compensable evaluations are not warranted for instability and loss of motion of either knee. As neither limitation of flexion nor limitation of extension of either knee is severe enough, by itself, to warrant a compensable evaluation under the rating schedule, a higher rating is also not warranted for either knee disability based on VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004), which involves rating compensable limitation of flexion and extension of the leg as separate disabilities under Diagnostic Codes 5260 and 5261. A Veteran can be entitled to a sparate 10 percent rating under DC 5003 (degenerative arthritis) if there is non-compensable limitation of motion of the knee and X-ray evidence of arthritis. Here, although there is X-ray evidence of arthritis, a separate rating is not warranted because the Veteran's knee disabilities are already rated under DC 5024 for tenosynovitis which indicates that it is rated as degenerative arthritis. To give a separate 10 percent frating for arthritis would compensate the Veteran twice for the same symptoms, which is pyramiding and is not permitted. 38 C.F.R. § 4.14 (2012). Additional Considerations The Veteran is competent to report the symptoms related to his service-connected thoracolumbar spine and bilateral knee disabilities. His complaints are credible to the extent that they involve musculoskeletal pain. The Veteran's complaints have been considered in this case; however, evaluations for VA purposes have not shown the severity required for a higher rating for the disabilities at issue at any time during the appeal period, as discussed above. See Francisco. The Board has also considered whether the Veteran's claims should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the Veteran's service-connected back and knee disabilities are contemplated and reasonably described by the rating criteria discussed above. The Veteran does not have symptoms associated with these disabilities that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's thoracolumbar spine or bilateral knee disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Board finds that the available schedular evaluations are adequate to rate these disabilities. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. Finally, the Board finds that the preponderance of the evidence weighs against each of the Veteran's claims decided herein. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to higher initial ratings for the disabilities at issue, is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an evaluation in excess of 20 percent for low back disability is denied. Entitlement to an evaluation in excess of 10 percent for right knee disability is denied. Entitlement to an evaluation in excess of 10 percent for left knee disability is denied. REMAND The December 2012 Board remand directed the RO to obtain an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities would prevent him from obtaining and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. A review of the claims files reveals that a VA musculoskeletal evaluation of the thoracolumbar spine and the knees was obtained in April 2013, with an opinion on employability provided at the end of the thoracolumbar spine evaluation. The examiner concluded that the Veteran could function in an occupational environment based on his service-connected conditions with certain listed limitations. The Board finds this opinion inadequate, as there is no reference or discussion of the Veteran's numerous other service-connected disabilities and it is unclear whether all of his service-connected disabilities, especially all of his musculoskeletal disabilities, were taken into consideration. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will arrange for review of the claims files by the VA examiner who evaluated the Veteran in April 2013 to obtain an additional opinion on whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities in combination would prevent him from obtaining and following substantially gainful employment for which his education and occupational experience otherwise qualify him. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims files. If the examiner who evaluated the Veteran in April 2013 is not available, the RO will obtain an opinion from another appropriate medical professional. If the reviewer determines that an additional examination(s) of the Veteran is necessary to provide a reliable opinion, such examination(s) should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2012). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims files, including a copy of this remand, must be made available to the examiner in conjunction with the examination. The term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of unemployability as against. More likely and as likely support the contended unemployability; less likely weighs against the claim. The Veteran is currently assigned 20 percent ratings for disabilities of the right ankle, thoracolumbar spine, and cervical spine; he is assigned 10 percent ratings for disabilities of the left ankle, each shoulder, and each knee, as well as for hypertension and tinnitus. He is assigned noncompensable evaluations for disabilities of the wrists and eyes, as well as for scars of the left lower lip, right ankle, and back. The combined rating for the Veteran's service-connected disorders is 80 percent, with a bilateral factor of 5.3 percent. He indicated in his April 2008 TDIU claim that he had completed four years of college and had last worked full time in May 3003. He subsequently worked part time as a bus driver. 2. Thereafter, the RO will review the record and readjudicate the Veteran's TDIU claim. If the benefit sought remains denied, the Veteran and his representative will be provided a Supplemental Statement of the Case and an opportunity to respond. Thereafter, the case shall be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs