Citation Nr: 1323317 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-29 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for chronic muscular strain with spondylosis at L5-S1 prior to February 1, 2013, and in excess of 20 percent from February 1, 2013. 2. Entitlement to an initial compensable evaluation for sciatic nerve radiculopathy of the right leg prior to February 1, 2013, and in excess of 10 percent since February 1, 2013. 3. Entitlement to an initial compensable evaluation for sciatic nerve radiculopathy of the left leg prior to February 1, 2013, and in excess of 10 percent since February 1, 2013. 4. Entitlement to an evaluation in excess of 10 percent for scar, left knee. 5. Entitlement to an evaluation in excess of 10 percent for left patella fracture, status-post open reduction internal fixation. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from July 2003 to January 2005. This matter comes to the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran was afforded a Travel Board hearing in March 2012, at which both he and his accredited representative from Disabled American Veterans (DAV) appeared. A transcript of the testimony offered at this hearing has been associated with the record. In December 2012, these matters were last before the Board at which time they were remanded for further development. With respect to the claims adjudicated herein below, that development has been completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Also, in December 2012, the Board remanded claims for service connection of tinnitus and a bilateral ulnar nerve condition. In a February 2013 rating action, the Appeals Management Center (AMC) granted these claims. Accordingly, they are not before the Board at this time. In the February 2013 rating action, the AMC increased the evaluation of the Veteran's low back disability to 20 percent disabling effective February 1, 2013. The AMC also effectuated separate evaluations for sciatic nerve radiculopathy of the right and left legs as a consequence of the service-connected low back disability. As the rating criteria for the Veteran's back disability specifically requires consideration of both orthopedic and neurological manifestations, the Board takes jurisdiction of the neurological ratings as part of the back claim on appeal. In its decision, the AMC evaluated the conditions as noncompensably disabling prior to February 1, 2013, and as 10 percent disabling from February 1, 2013. Because the maximum benefits were not granted, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, the Veteran has reported on several occasions that his service-connected disabilities, to include those here on appeal, significantly impact his ability to maintain work. See, e.g., VA examination reports dated in October 2010, May 2011, and February 2013; see also, March 2012 hearing testimony. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the evidence raises the issue that the Veteran may be unemployable due to disabilities currently on appeal, the issue of a TDIU is before the Board. The issues of entitlement to service connection for bilateral hearing loss and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. Prior to February 1, 2013, the Veteran's chronic muscular strain with spondylosis at L5-S1 did not manifest by flexion to less than 60 degrees, combined range of motion not greater than 120 degrees, incapacitating episodes as defined by regulation, abnormal gait or muscle spasm resulting in abnormal contour, ankylosis, either favorable or unfavorable. 2. From February 1, 2013, the Veteran's chronic muscular strain with spondylosis at L5-S1 did not manifest by flexion to 30 degrees or less or ankylosis. 3. Prior to February 1, 2013, the Veteran's chronic muscular strain with spondylosis at L5-S1 did not manifest by any associated objective neurologic abnormalities. 4. From February 1, 2013, the Veteran's chronic muscular strain with spondylosis at L5-S1 manifested sciatic nerve radiculopathy of the right and left legs, characterized as mild incomplete paralysis, but no worse. 5. Throughout the applicable period, the Veteran's scars were painful and unstable, but did not manifest by an area meeting or exceeding 12 square inches or result in limitation of function. 6. Throughout the applicable period, the Veteran's left patella fracture, status-post open reduction internal fixation has caused pain and limitation of activity, but has not manifested by ankylosis, recurrent subluxation, lateral instability, dislocation of semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula or genu recurvatum; flexion of the left knee has never been limited to 30 degrees or less and extension has never been limited to 10 degrees or more. CONCLUSIONS OF LAW 1. Entitlement to an initial evaluation in excess of 10 percent for chronic muscular strain with spondylosis at L5-S1 prior to February 1, 2013, and in excess of 20 percent from February 1, 2013, is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. Entitlement to an initial compensable evaluation for sciatic nerve radiculopathy of the right leg prior to February 1, 2013, and in excess of 10 percent since February1, 2013, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2012). 3. Entitlement to an initial compensable evaluation for sciatic nerve radiculopathy of the left leg prior to February 1, 2013, and in excess of 10 percent since February1, 2013, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2012). 4. Entitlement to an evaluation in excess of 10 percent for a painful scar of the left knee is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4. 118, Diagnostic Code 7804 (2008). 5. Entitlement to a separate 10 percent, but no greater, evaluation is warranted for an unstable, superficial scar of the left knee. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4. 118, Diagnostic Code 7803 (2008). 6. Entitlement to an evaluation in excess of 10 percent for left patella fracture, status-post open reduction internal fixation is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5256-5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant satisfactory pre-adjudication notice by a letter dated in August 2006. With respect to the claims for increase evaluations of a low back disability and the associated sciatic impairment of the lower extremities, in a case such as this, where service connection has been granted and initial disability ratings and effective dates have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any prejudice; thus, that burden has not been met in this case. VA has obtained the Veteran's service treatment and VA medical records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to severity of his disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that 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 VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Low Back Disabilities of the spine are rated either by using the General Rating Formula for Diseases and Injuries of the Spine, or the criteria established for intervertebral disc syndrome. Under the 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% evaluation 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% 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% rating requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50% evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100% 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 cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. 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 cervical spine is 340 degrees and 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). Alternatively, intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: a 10% rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20% rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40% rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60% rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. §4.124a Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. Id. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at Diseases of the Peripheral Nerves in 38 C.F.R. § 4.124a. The terms "slight," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As this case involves the appeal from an initial grant of service connection, the regulations providing for an effective date up to 1 year prior in the case of a claim for increased compensation of an already service-connected disability are not for application. 38 C.F.R. § 3.400(o)(2); see also Fenderson v. West, 12 Vet. App. 119 (1999). Knee The Board notes that Diagnostic Code 5020 directs that synovitis is rated on limitation of motion of affected parts as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis 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 however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for 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. Id. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Id. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (zero percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04. (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (zero percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Id. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5263 provides a maximum 10 percent evaluation for genu recurvatum. Id. Skin The Board notes that during the course of the appeal, VA amended the Schedule for Rating Disabilities by revising that portion of the schedule that addresses the skin, so that it more clearly reflects VA's policies concerning the evaluation of scars, and specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805; however, the amendment is effective for claims filed on and after October 23, 2008. See 73 Fed. Reg. 54708-54712 (September 23, 2008). Moreover, the Veteran has not requested review there under. See 77 Fed. Reg. 2910-10 (January 20, 2012). Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10 percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. Facts: Low Back In May 2006, the Veteran filed his claim for service connection of a low back disability. In August 2006, he was afforded a VA examination. At the time of the August 2006 VA examination, the Veteran complained of back pain, worse at the L2 area. Also, other than the numbness associated with scarring, he did not complain of any pain or numbness in either lower leg. His feet did not feel numb. He related subjective feelings of pain, weakness and easy fatigue in the low back. He stated that they had these symptoms every day. He complained of flare-ups with activity, usually with standing, walking, laboring, etc. He related that resting for an hour did not help much. Objective examination revealed that the Veteran was trim and healthy in appearance, with average muscle condition. His cooperation was very good and there was no limping. He was able to rise on the toes and heels and could flex forward and reach to the feet. The legs were equal in length and had good alignment. Percussion of the flexed spine gave some midline pain at the L2 area. Flexion was to 95 degrees. Extension was to 30 degrees. Right and left rotation were each to 50 degrees. Right and left lateral flexion were each to 40 degrees. Pain with these movements was noted as rather mild, and worsened at the end of the motions. Alignment of the spine was very good and there was a mild midline tenderness at L2, along with some mild muscle spasm. Reflexes were normal at the knees and ankles. Extensor muscles and sensation were normal at the lower legs and feet. The left lower leg exhibited some numbness near the left knee surgical scar. Calf circumference was equal. Straight leg raising was easily tolerated to 80 degrees. The examiner assessed chronic muscular strain and noted that the lumbar nerve roots were "okay." X-rays resulted in an impression of bilateral spondylosis, L-5/S-1, without spondylolisthesis. Of record is an October 2006 private treatment record from Basin Immediate Care pertaining to a complaint of "here for meds for back" and arthritis, spondylosis L5-S1. The record notes that the Veteran was then working for a retailer, that he had missed work and that his back was acting up. He was not in any apparent distress. Range of motion was good, although hyperextension caused pain. There was pain in the paraspinal muscles of the lower thoracic spine and the upper lumbar region thereof. Straight leg raising was negative, indicative of no neurological impairment. A low back strain was assessed. In June 2007, the Veteran related that he disagreed with the assigned 10 percent evaluation and thought that it should be higher. Around this time, he also submitted personal statements from his mother, his employer and an apparent colleague. These statements generally reflect that his low back condition, as well as other conditions, prevented him from engaging in recreational and strenuous activities, and that his low back condition had caused him to miss some work. Other personal statements of record document similar impressions. In October 2010, the Veteran was afforded another VA examination. At the time of the examination he complained of daily back pain in the morning at a level of 5-6/10 and related that it improved with movement, although it flared after work every day. Following work, he stated that he would come home and lay on his back, elevate his legs and take naproxen for relief. Because of his back, he felt he was quite limited and could not stand for more than 30 minutes. He had to move after 30 minutes of sitting and could sit for a maximum of one hour. He had a cane, which he rarely used, and used a walking stick on occasion. Valsava maneuvers worsened his back pain. There had been no problems with incontinence of stool or urine, or any erectile dysfunction. He used a back brace about once per month and a heating pad daily. He used ice less often. He denied radiation of pain from the back into the buttocks or sciatic area, but perceived that he had less sensation on the lateral aspect of his left leg. Objective examination revealed that the Veteran was somewhat thin, but well-developed. He appeared to have a normal gait walking the 15 yards from the waiting room to the office. No other special joint favoring was noted, but for the fact that he sat in a semi-straightened manner. He stood on heels and toes well. Reflexes were physiologic without pathologic reflexes, and there was no apparent sensory loss in the upper or lower extremities. Leg lengths were equal. Straight leg raising was possible to 100 degrees with minimal discomfort in the low back. The back was symmetric in appearance with tenderness to deep palpation and percussion at L2 and also down into L5-S1 to a lesser degree. There was minimal paraspinous muscle spasm. Flexion was somewhat diminished to 70 degrees. Extension was limited to 20 degrees. Right and left lateral flexion were each limited to 20 degrees. Right and left rotation were each limited to 20 degrees. All movements caused some discomfort at the end of the movements, and there was no loss of movement with repetition. The examiner assessed chronic lumbosacral muscle strain with spondylosis at L5-S1. He remarked that the Veteran's low back disability appeared to be the most debilitating condition and appeared to be quite limiting. Of record is an early February 2011 private treatment record from T.C.K., M.D. pertaining to a complaint of back pain stemming from lifting an empty pallet at work the day prior. He denied any numbness, weakness or tingling, as well as any loss of bowel or bladder control. Objective examination showed that he was in no acute distress. The upper back had no tenderness and a good range of motion. He was tender in the lumbar region at about L1 to L3, and T12. He had spasm with mostly right-sided pain and right-sided muscle spasm. He could heel and toe walk. His reflexes were normal, as was the remainder of neurologic examination. X-rays showed no compression fractures and no misalignment. A low back strain was assessed. Also of record is an April 2011 treatment record from T.C.K., M.D. relating to the Veteran's complaints of low back pain. At this time, the Veteran continued to have muscle spasm on the right side in the thoracic and lumbar region, but no numbness, weakness or tingling. He was in no acute distress, although examination showed a little bit of spasm of the paraspinous musculature on the right side in the T8 to L2 region. He had full range of motion of the low back and no bony tenderness. Neurologic examination was grossly within normal limits for motor, sensory and reflexes. A low back strain was assessed. In May 2011, the Veteran was afforded a VA peripheral nerves examination. The examination report documents a complaint of numbness in the left lateral leg and that the examination was conducted to address any residual nerve damage associated with the Veteran's left knee disability, particularly of the left peroneal nerve. Examination showed decreased sensation to vibration, pinprick, position sense and light touch in the sural and superficial peroneal nerves of the left lower extremity, although nerve conduction studies were normal. Weakness of left ankle dorsiflexion was also noted. The report also notes that the Veteran had missed less than 1 week of work over the past year due to his low back strain. A left peroneal nerve injury was assessed and the examiner specifically remarked that this was the result of the Veteran's fractured left patella (i.e., his service-connected knee disability) and consequent surgical treatment. Notably, service connection is in effect for this aspect of the Veteran's service-connected knee disability. A review of the record discloses a private treatment record from Basin Immediate Care apparently dated November 11, 2011, which documents a complaint of low back pain and spasms in the buttocks after bending at the waist to pet a dog. Neurologic examination was normal at this time and there was no bowel or bladder dysfunction. Examination showed a tender lower thoracic spine with bilateral paraspinal muscle spasms in the lumbar back. Deep tendon reflexes were 2+ (normal) at the knees and were symmetrical. He was able to stand on his heels and toes, and he could do squats. Forward flexion was limited to 30 degrees due to pain. In March 2012, the Veteran testified before the Board. At the hearing, he testified that he had pain from his rib cage down to his pelvis that limited his mobility, as well as his ability to pick things up and move things around. He related that the condition disrupted his sleep and that he could no longer workout, run and bike like he used to. He testified that he had "blown out" his back several times, which caused employment issues. He complained of spasms down to his buttocks and that he had pinched nerves that also affected his legs. He related that he had had to leave numerous jobs due to back problems and that constant bending and twisting aggravated his back. He testified that he had difficulty walking long distances due to back pain and that when engaging in recreation he would sometimes use a cane, particularly on uneven and hilly terrain. In accordance with the Board's remand directives, the Veteran was afforded a VA examination on February 1, 2013, which resulted in assessments of bilateral lumbar radiculopathy, spondylolisthesis, L5 on S1 and lumbosacral strain, chronic. In terms of medical history, the examiner noted that the Veteran had residual numbness along the lateral aspect of the left lower extremity and foot drop related to the surgical repair of his left patella. At the time of the examination, the Veteran complained of flare-ups with prolonged standing and walking, as well as when he attempted most movements, including bending, stooping, squatting, climbing or lifting. Forward flexion was to 45 degrees, with objective evidence of pain beginning at 35 degrees. Extension was to 10 degrees with objective evidence of pain beginning at zero degrees. Right lateral flexion was to 15 degrees, with objective evidence of pain beginning at 5 degrees. Left lateral flexion was to 15 degrees with objective evidence of pain beginning at 5 degrees. Right lateral rotation was to 30 degrees or greater with objective evidence of pain at 20 degrees. Left lateral rotation was to 30 degrees or greater, with objective evidence of pain beginning at 20 degrees. The Veteran was unable to perform repetitive testing due to increased pain. However, the examiner noted that, in terms of functional loss, the examination showed less movement than normal, weakened movement, interference with sitting, standing and/or weight-bearing, and symptoms of bilateral lumbar radiculopathy. There was localized tenderness or pain to palpation in the low back, but no guarding or muscle spasm. The Veteran was not then using any assistive devices as a normal mode of locomotion. There was not functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner related that the low back condition impacted the Veteran's ability to work in that it prevented prolonged standing and walking, as well as frequent bending, stooping, squatting, climbing and lifting. He noted that the Veteran had developed bilateral lumbar radiculopathy that, however, did not affect his activities of daily living. Muscle and neurological testing was also performed. Muscle strength testing was performed and was 5/5 in all areas but for bilateral knee extension and left ankle dorsiflexion, where it was 4/5. No muscle atrophy was shown, however. Deep tendon reflexes were normal bilaterally. Sensory examination for light touch was normal in the upper anterior thigh and the right thigh/knee, right lower leg/ankle and right foot/toes. Sensory examination for light touch was decreased in the left thigh/knee, the left lower leg/ankle and the left foot/toes. Straight leg raise testing (a neurological test for leg pain due to back disability) was negative bilaterally. The Veteran did have radiculopathy, but denied constant pain. He did, however, describe intermittent pain (usually dull), characterized as mild, in each lower extremity. He had no parasthesias or dyesthesias in the lower extremities, but had mild numbness in each lower extremity. The examiner noted that the Veteran had numbness in the distal aspect of the left lower extremity not due to the low back condition, but rather residual nerve damage secondary to surgical repair of the left patella in 2004. In regard to neurologic impairment related to the low back disability, the examiner noted that the sciatic nerve roots on both sides were involved and characterized the severity of the radiculopathy as mild. He did not have any other neurologic abnormalities, and intervertebral disc syndrome was ruled out. Facts: Left Knee and Associated Scar In May 2006, the Veteran filed his claims. In August 2006, he was afforded a VA examination. At the time of the examination, it was noted that the Veteran was then working in retail sales and that he tolerated his work fairly well if he was careful. The examination report notes that the Veteran had a history of a left patella fracture in service with surgical treatment. At the time of the examination he complained of continued pain in the left knee , as well a some "collapsing" episodes with the left knee. At the time of the examination, treatment involved careful activity, oral medication and some special exercising. He was not then using a cane or a brace, and reported some help with treatment. His comfort level allowed for driving at least 2 hours, but related that driving worsened his left knee. Walking was "okay" for at least 30 minutes, but resulted in some pain and stiffness in the knee. There had not been an apparent dislocation of the patella since his discharge from the military. There was left knee numbness, characterized as mild, near the surgical scar. Otherwise, there was no numbness. There was no locking. The examiner noted subjective feelings of pain, weakness and easy fatigue of the left knee. Also noted was impaired coordination, including collapsing feelings. The Veteran reported these symptoms as occurring every day and they were present at the time of the examination. He also described flare-ups with activity on most days and that resting for an hour did not help much. Objective examination showed that the Veteran was trim and healthy in appearance and with average muscle condition. His cooperation was very good and there was no limping at the time of the examination. Knee motion was very good. Range of motion was from zero degrees of extension to 145 degrees of flexion. There was mild pain with these movements, worsening at the end of flexion. There was no increase in joint fluid in the knee. Patellar crepitation was rather bothersome. The quadriceps muscle had a mild disuse atrophy on the left. Anterior tendon structures had a moderate amount of tenderness at the left knee, including the tibial tuberosity areas. The anterior patellar surfaces also had moderate tenderness at the left knee. Joint lines were nontender at both knees. Ligaments were normal. McMurray and Lachman's tests were negative. The surgical scar measured 1/8" x 3" and was longitudinal on the anterior aspect over the patellar area. It had a mild tenderness and a mild adjacent numbness. Left knee pain was mostly on the anterior surfaces of the patella and at the deep surface of the patella in the joint. The examiner assessed status-post surgical treatment for patellar fracture, well-healed. The examiner also assessed chronic synovitis, posttraumatic chondromalacia and irritation from fixation screws, as well as slightly bothersome scarring. He felt that decreasing flexion by 30 degrees during flare-ups was appropriate. The examiner remarked that work status had been quite good, although he was a poor candidate for sustained heavy activities. X-rays did not show any arthritis. In June 2007, the Veteran offered reasons for disagreeing with the continued assignment of a 10 percent evaluation. He related that the knee continued to be increasingly painful and requested a higher rating. Also in June 2007, the Veteran offered a statement from his mother regarding his functional capacity. In this letter, she related that since his knee injury, he could no longer participate in trail bike riding, skateboarding and snowboarding, and other activities. She related that he had had to slow down considerably and that walking a mile on pavement was too hard for him some days. She also noted that there were household repairs and yard chores that the Veteran could no longer help her with. She related that his recreation, work and life choices had been limited by his knee injury, inter alia. Other personal statements of record document similar impressions. The Veteran also submitted a July 2007 statement from his employer. In the statement, his employer related that he had noticed several issues with the Veteran's ability to stock freight, as well as with attendance related to his disability. He also submitted a July 2007 letter, apparently from a colleague, in which she related similar observations. Other personal statements of record document similar impressions. In October 2010, the Veteran was afforded another VA examination. Since his last VA examination, it was noted that the Veteran had obtained employment at a grocery store, first working in loss prevention and then in the food department. In this regard, it was noted that the prolonged standing had resulted in the Veteran changing from working in loss prevention to working in the food department, where he was able to sit periodically, although he had continued problems with standing for long periods. At the time of the examination, the Veteran complained of left knee swelling, particularly inferior to the patella on a regular basis. He also complained of constant pain in the area behind the patella and towards the posterior aspect and medial aspect of the knee. He rated the pain at a level of 5/10. He also complained that the knee was unstable and that he hyper-extended it almost daily, i.e., if he got off of a stool to quickly or turned about fast, he would fall. He reported such episodes several times per month. He reported stiffness with swelling, which would last 2 or 3 days, at which time he would lose an additional 10 degrees of flexion. He claimed to dislocate the patella to the side every three months, at which time he had severe pain and huge discoloration and swelling. He described regular popping noises in the knee. He did not use a knee brace, but needed occasional crutches and the use of a cane. He occasionally used ice. In regard to the scar, he described that it was quite tender and sensitive. He described a burning sensation and that it would often become pruritic. He could not wear tight pants and related that the scar was very susceptible to sunburn. He often wore a Band-Aid over the scar and had one on at the time of the examination. X-rays demonstrated postsurgical changes of surgical repair of a fractured left patella. Examination of the skin showed a 3" x 1/8" vertical scar over the left patella. It was skin colored, regular, and without unusual attachment to subcutaneous tissues. It was mildly sensitive to touch and there was mild numbness to 1/2" bilaterally. Musculature appeared to be good. Physical examination showed that the leg lengths were equal. Calf circumferences and circumference of the thighs 4 inches above the patella were equal. The knees appeared to be symmetric, except that the left patella was approximately 3/8" wider than the right and appeared slightly more prominent. Q-angles appeared to be normal. Examination of the left knee showed tenderness of the patella itself and in the subpatellar area and minimally along the medial joint line. There was no obvious swelling and no effusion. There did not appear to be crepitus with left patellar movement. The joint appeared to be stable in regards to ligaments. Lachman and McMurray's tests were negative. There was no apparent hyperextension. His range of motion was somewhat limited; extension was to zero degrees and flexion was to 120 degrees. The examiner assessed left knee status-post open reduction and internal fixation, tripartite patellar fracture with continued pain and collapsing, chronic synovitis plus posttraumatic patellar chondromalacia and mildly bothersome left knee surgical scar. The examiner noted that the symptoms described suggested ligamentous laxity, but that none was demonstrated on physical examination. In March 2012, the Veteran testified at a hearing before the Board. At the hearing, he related that since 2006 the condition had gotten a little better, but had plateaued. He testified that without constant therapy, it got extremely bad. He stated that he could not function at work very well and that he had lost several jobs due to his knee cap giving him issues. He described having balance and coordination issues and related that he could no longer run. He stated that he could not perform physical fitness tests very well and that he thus could not work in law enforcement, as he had desired. He complained of pain, which he treated with naproxen, as well as Vicodin on occasion. He related that he occasionally used a cane and had difficulty walking on uneven surfaces. He described that he had weakness in the knee and that it often felt unstable. He related that it collapsed on occasion, probably about twice per month. He also related that it would occasionally seize up on him, as well as lock. He described sensations of warmth in the knee with overuse. He reported difficulty with getting in and out of low automobiles, as well as with walking stairs. He also testified in regard to the scarring associated with the left knee disability. He related that it would swell, itch and turn red, and that it was particularly affected in the summertime. He related that any kind of rough fabric would cause irritation of the scar, and that he often wore a Band-Aid over it. He reported tenderness and pain on the scar. He described loss of skin on the scar, particularly in the summertime. In accordance with the Board's remand directives, the Veteran was afforded a VA examination in February 2013. Examination showed a well-healed linear post-surgical scar of the left knee, which was painful. The scar, on examination, was not unstable and was 7 cm. in length. In terms of limitation of function, it was noted that the Veteran could not expose it to sunlight and that even in the summertime he had to have clothing over the scar. The Veteran also reported that the scar would become irritated if he was involved in repetitive movement of the left knee, which did interfere with his work. In regard to the left knee, the Veteran reported flare-ups with worsened symptoms after prolonged standing/walking, or when he attempted most movements of the knee, including kneeling, squatting or climbing. Flexion was to 110 degrees, with painful motion beginning at 100 degrees. Extension was to 5 degrees with pain at this point and the Veteran was unable to extend the knee any farther. He was able to perform repetitions times 3, with no additional limitation of motion. In terms of functional loss, the examiner noted less movement than normal, weakened movement, pain on movement and swelling. There was no pain on palpation. Flexion and extension were 4/5 in strength. Joint stability tests were normal. There was no evidence or history of recurrent patellar subluxation or dislocation. There was no history of meniscal involvement or joint replacement. He did not regularly use assistive devices in ambulation. Functional impairment was not to the extent such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. X-rays did not show degenerative or traumatic arthritis, or evidence of patellar subluxation. The examiner felt that condition impacted his ability to work in that it prevented prolonged standing and walking, as well as frequent kneeling, squatting and climbing. The examiner remarked that the knee did not exhibit instability or subluxation. Analysis: Low Back As a preliminary matter, as discussed above, ratings for spine disabilities are generated pursuant to the General Formula or to the criteria specific to intervertebral disc syndrome (IDS). IDS occurs when the central portion of one or more intervertebral discs, cartilages that separate the spinal vertebrae, protrude or rupture through the outer fibrous part of the disc and compress or irritate the adjacent nerve root. 62 Fed. Reg. 8204 (February 24, 1997). In this case, IDS was specifically ruled out as a diagnosis for this Veteran on VA examination in February 2013. Regardless, the criteria for IDS require the presence of incapacitating episodes, which are defined by regulation as requiring bed rest prescribed by a physician. See 38 U.S.C.A. § 4.71a, Diagnostic Code 5243, Note (1). A review of the record, including the VA examination reports, fails to disclose that the Veteran has ever been prescribed bed rest by a physician and treatment by a physician. Accordingly, an increased evaluation cannot be substantiated under the criteria for IDS. Initially, the Board will address whether the evidence substantiates an evaluation in excess of 10 percent prior to February 1, 2013, for the orthopedic manifestations of the Veteran's low back disability. In this regard, the Board acknowledges the November 2011 private medical record documenting flexion limited to 30 degrees with pain and that on its face, this finding would seem to substantiate a higher evaluation under the general rating formula. Nevertheless, the Board notes that private medical records dated in February and April 2011 document good and full range of motion, respectively, and that VA examination in February 2013 showed flexion to 35 degrees, with consideration of pain. Likewise, the combined range of motion of the thoracolumbar spine was well in excess of 120 degrees and flexion was in excess of 60 degrees, as shown by VA examination in August 2006 and October 2010. Moreover, although muscle spasm was disclosed in the evidence dated prior to February 1, 2013, it was not noted as severe enough to result in an abnormal gait or spinal contour. Guarding was never shown. The evidence has never demonstrated ankylosis. Ankylosis has also been defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Board finds, therefore, that the November 2011 private treatment record constitutes an acute flare up of the disability and is not reflective of the Veteran's typical disability picture. Thus, prior to February 1, 2013, the Board does not find that the evidence indicates that an evaluation in excess of 10 percent is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Fenderson, supra. From February 1, 2013, an evaluation in excess of 20 percent is also not warranted. As shown by VA examination on that date, flexion of the thoracolumbar spine was to 35 degrees, with consideration of pain on motion. VA examination did not disclose flexion limited to 30 degrees or less. Ankylosis was not demonstrated. There is no further evidence since that time to substantiate a higher rating. Thus, from February 1, 2013, and on, an evaluation in excess of 20 percent is not warranted. Fenderson, supra. Also, prior to February 1, 2013, the Board does not find that compensable evaluations are warranted for sciatic nerve radiculopathy of the right and left legs. In this regard, the Board notes that VA examinations did note numbness of the left leg, particularly around the site of the Veteran's surgical scarring related to his left knee. However, per the medical opinions of record, this symptomatology is clearly not associated with the Veteran's service-connected low back disability, and the Board cannot consider it in evaluating the sciatic nerve radiculopathy of the right and left lower extremities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). Otherwise, prior to February 1, 2013, objective neurological impairment attributable to the Veteran's low back disability was not shown. Indeed, repeated neurologic evaluation was normal, e.g., straight leg raising tests were negative and associated neurologic abnormalities were assessed. Along these lines, the Board acknowledges the Veteran's complaints of having pinched nerves that affected his legs; however, as a lay person, he is not competent to assess radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The examination on February 1, 2013 represents the first objective evidence of radiculopathy due to the back. Therefore, compensable evaluations for sciatic nerve radiculopathy of the right and left legs prior to that time are not warranted. See Fenderson, supra. From February 1, 2013 forward, the Board concludes that evaluations in excess of 10 percent are not warranted for sciatic nerve radiculopathy of the right and left lower extremities. As outlined above, VA examination on this date marks the first point in time when radiculopathy of the lower extremities was assessed. In this regard, VA examination at this time showed intermittent pain, characterized as mild, in each lower extremity, and mild numbness. Constant pain was not demonstrated, and the Veteran had no parasthesias or dyesthesias. Moreover, the radiculopathy was objectively characterized as mild. In the left lower extremity, the majority of neurologic symptoms, i.e., residual numbness along the lateral aspect of this extremity and foot drop, were specifically attributed to surgical repair of the left patella, which is not at issue here. The Veteran did not normally require any assistive devices to ambulate. Under these circumstances, the Board concludes that the radiculopathy in each extremity is best characterized as mild incomplete paralysis; thus, an evaluations in excess of 10 percent are not warranted. Fenderson, supra. Analysis: Scar Diagnostic Code 7801 cannot serve to provide an evaluation in excess of 10 percent. In particular, that code is inapplicable because the scar does not measure an area or areas exceeding 12 square inches. Rather, the scar measures 3" x 1/2" (1.5 square inches). The total area of the scar does not approximate 12 square inches. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Codes 7802 and 7805 are likewise inapplicable in the present case. As noted above, Diagnostic Code 7802 provides for a maximum 10 percent evaluation for superficial scars that do not cause limitation of motion, provided the scars measure 144 square inches or greater. The Veteran's scars, as outlined above, do not approximate this area. With respect to Diagnostic Code 7805, limitation of function, i.e., limitation of flexion and/or extension, of the knee due to scarring has not been shown. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Currently, the Veteran's scar is evaluated as 10 percent disabling under Diagnostic Code 7804, which provides for a maximum 10 percent evaluation for painful superficial scars. Thus, this diagnostic code cannot serve to allow for a higher evaluation, and the only remaining avenue for an increased evaluation is Diagnostic Code 7803, which provides a 10 percent maximum evaluation for superficial, unstable scars. In considering the award of a 10 percent evaluation under Diagnostic Code 7803, the Board is mindful of the rule against pyramiding. See Esteban v. Brown, 6 Vet. App. 259 (1994) (stating that 38 C.F.R. § 4.14 prohibits compensating a claimant twice for the same symptomatology); Fanning v. Brown, 4 Vet. App. 225 (1993) (holding that disability from hernia and disability from painful scars related to repair of the hernia may require separate ratings). However, the Board notes that the diagnostic codes contemplate distinct types of symptomatology that do not overlap, i.e., pain and tenderness versus instability of the skin covering the scar. Moreover, although inapplicable in this case, when the Schedule for Rating Disabilities pertaining to the skin was amended, as noted above, Diagnostic Code 7803 was eliminated and, in effect, merged with Diagnostic Code 7804, which now provides for evaluation of unstable or painful scars, i.e., the new schedule prohibits the award of separate evaluations for instability and painful scarring. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2012). This leads the Board to conclude that, under the criteria applicable in this case, that there is no prohibition against awarding separate evaluations for unstable and painful scarring. Accordingly, as the Veteran's scarring has manifested by frequent loss of covering of the skin, a separate 10 percent evaluation is warranted under 38 C.F.R. § 4.118, Diagnostic Code 7803. Analysis: Left Knee Initially, the Board points out that Diagnostic Codes 5256, 5259, 5262 and 5263 cannot provide for a higher evaluation for the knee. As outlined above, ankylosis and dislocated semilunar cartilage have not been demonstrated. Nor has impairment of the tibia and fibula been shown. Genu recurvatum has not been demonstrated, as well. Regarding Diagnostic Codes 5257 and 5258, pertaining to recurrent subluxation, locking, and instability, the Board acknowledges the Veteran's subjective complaints of instability, patellar subluxation and collapsing. However, repeated VA examination has ruled out any objective evidence indicative of such symptomatology, particularly by diagnostic testing and X-rays. VA examination in August 2006 did not reveal locking, the ligaments were normal and Lachman's testing was negative. Likewise, upon VA examination in October 2010, although the subjective symptoms suggested ligamentous laxity, none was shown on VA examination. On VA examination in February 2013, the examiner noted no evidence of recurrent patellar subluxation or dislocation, and joint stability tests were normal. Meniscal involvement has never been shown. Accordingly, Diagnostic Codes 5257 and 5258 are not applicable. In order to attain an evaluation in excess of 10 percent for the left knee, therefore, the criteria for such an evaluation must be met under either Diagnostic Code 5260 or 5261, which provide for evaluation of limitation of flexion and extension, respectively. In this regard, the Board notes that the evidence, as outlined above, with consideration of the DeLuca factors, has never shown flexion limited to 30 degrees or less or extension limited to 15 degrees or more. VA examinations have shown extension limited to 5 degrees, at most, and flexion limited, at most, to 100 degrees. Accordingly, as the evidence has never shown flexion limited to 30 degrees or less or extension limited to 15 degrees or more, evaluations in excess of 10 percent are not warranted. As the disability picture has remained relatively stable throughout the appeal, staged ratings are not warranted. Hart, supra. Extraschedular Consideration According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The rating criteria specifically contemplate the Veteran's symptomatology as well as economic impairment. In short, there is nothing in the record to indicate that the service-connected disabilities on appeal cause impairment over and above that which is contemplated in the assigned evaluations. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for chronic muscular strain with spondylosis at L5-S1 prior to February 1, 2013, and in excess of 20 percent from February 1, 2013, is denied. Entitlement to an initial compensable evaluation for sciatic nerve radiculopathy of the right leg prior to February 1, 2013, and in excess of 10 percent since February 1, 2013, is denied. Entitlement to an initial compensable evaluation for sciatic nerve radiculopathy of the left leg prior to February 1, 2013, and in excess of 10 percent since February 1, 2013, is denied. Entitlement to an evaluation in excess of 10 percent for a superficial, painful scar of the left knee is denied. Entitlement to a separate 10 percent, but no greater, evaluation is granted for an unstable and superficial scar of the left knee, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent for left patella fracture, status-post open reduction internal fixation, is denied. REMAND When this matter was last before the Board, it remanded the claim for service connection of bilateral hearing loss to obtain a medical examination and opinion. The examiner was asked to address whether the Veteran had pre-existing hearing loss that was aggravated in service and, in the alternative, whether any diagnosed hearing loss was incurred in service. Notably, of record was an August 2006 VA audiologic examination that contained a speech recognition score of 92 percent in the left ear, which meets VA's minimum standards for considering hearing loss a disability. 38 C.F.R. § 3.385. In February 2013, the Veteran was afforded a VA audiologic examination, which did not result in audiometrics meeting VA's minimum standards for considering hearing loss a disability. Id. Nevertheless, the VA examiner rendered a negative opinion on whether the Veteran had preexisting hearing loss that was aggravated by service, explaining that an April 2003 audiogram that noted mild hearing loss at 6000 Hz, a frequency not used by VA in evaluating hearing loss, was an abnormal variant. The examiner did not address the finding of 92 percent speech recognition in the left ear shown in August 2006, or address whether the Veteran had incurred bilateral hearing loss in service. Because the examiner did not address the findings of the August 2006 VA examination, which disclosed 92 percent speech recognition in the left ear, the Board finds that the examination report is insufficient. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). Accordingly, the examination report should be returned to the examiner for an addendum opinion, if available, to address the contents of the August 2006 VA examination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). As noted in the introduction above, the evidence of record raises the possibility of entitlement to a total disability rating based on individual unemployability, or TDIU. The Veteran has not yet been provided proper notice of how to substantiate a claim, nor has he been given the opportunity to submit a VA Form 21-8940, which contains the pertinent information VA needs to evaluate such a claim. Therefore, this claim is remanded for proper development, to include obtaining a VA medical examination in order to determine whether the Veteran's service-connected disabilities prevent him from maintaining substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Schedule the Veteran for appropriate VA examination(s) to determine whether he is entitled to a TDIU by virtue of any of his service-connected disabilities or their combined effect. 3. Refer the claims folder to the audiologist who performed the February 2013 examination (if available) to obtain an addendum opinion as to the etiology of the Veteran's claimed bilateral hearing loss. The following considerations will govern: The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner must indicate that a review of the claims folder was made. The examiner must respond to the following question(s) and provide a full statement of the basis/es for the conclusion(s) reached: a. Does the evidence of record clearly and unmistakably show that the Veteran had a hearing loss disability, to include cochlear damage and bilateral hearing, that existed prior to his entry into active duty? b. If the answer is "yes," does the evidence clearly and unmistakably show that the pre-existing condition was not aggravated by service? c. Alternatively, if the answer to question (a.) is "no," is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed cochlear damage or hearing loss (of either or both ears) is etiologically related to service or had its onset during the Veteran's period of active military service? In rendering any opinion, the examiner is asked to address the findings of the August 2006 VA examination that then showed a 92 percent speech recognition score in the left ear, bearing in mind that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain, supra. If the examiner who performed the February 2013 examination finds that another examination is necessary or is unavailable to complete this addendum, the claims file should be provided to another appropriate examiner. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 4. After the development directed above has been completed to the extent possible, readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs