Citation Nr: 1323976 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-01 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for left carpal tunnel syndrome. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral foot arthritis. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to an initial compensable disability rating prior to May 6, 2008, and in excess of 10 percent thereafter for lumbar herniated nucleus pulposus (HNP). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1998 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2008, the RO issued a rating decision granting service connection for lumbar HNP and assigning a noncompensable rating, effective September 12, 2007, the day after the Veteran's discharge. The Veteran timely disagreed with the assigned disability rating and, in December 2008, the RO issued a decision assigning a 10 percent disability rating for HNP effective May 6, 2008. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board has characterized the issue as shown on the first page of this decision. In May 2010, the RO issued a rating decision denying service connection for right and left knee disorders. Additionally, in August 2010, the RO issued a rating decision declining to reopen a previously denied claim of entitlement to service connection for bilateral carpal tunnel syndrome. The Veteran timely perfected an appeal as to that denial. In August 2012, the RO issued a rating decision granting service connection for radiculopathy of the right upper extremity, claimed as right carpal tunnel syndrome. As the Veteran has not submitted a notice of disagreement to the disability rating or effective date assigned for the grant of service connection for the right wrist disability, only the issue of reopening the claim for a left wrist disability remains before the Board. 38 C.F.R. § 20.201 (2012); Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In December 2011, the RO issued a decision declining to reopen a previously denied claim of entitlement to service connection for arthritis of the bilateral feet. The Veteran also timely perfected an appeal as to that denial. As relevant to the Veteran's application to reopen her claim of entitlement to service connection for arthritis of the bilateral feet, the Board notes that such claim was previously denied in a May 2008 rating decision. The Veteran has maintained that she experiences arthritis in her feet, specifically in her toes, as the result of bunionectomies performed in service. The Board is mindful that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). However, in the instant case, the Board finds that the Veteran's petition to reopen a claim of service connection is limited to arthritis. She has consistently identified arthritis as the specific diagnosis for which she is seeking service connection, even following a December 2011 VA letter asking her to clarify whether she was, instead, seeking an increased evaluation for her service-connected status post left and right foot bunionectomies. Moreover, as she is already in receipt of service connection for status post bunionectomies of the left and right feet and has not been diagnosed with any other disabilities as a result of those bunionectomies, the claims file does not suggest any other claims that may reasonably be encompassed by her descriptions. Although the Veteran had requested a hearing before the Board in her July 2012 substantive appeal (VA Form 9), she submitted a May 2013 form indicating that she no longer wished to appear at a hearing and wanted her appeal to be considered based on the evidence of record. Accordingly, the Board finds that her hearing request has been withdrawn. 38 C.F.R. § 20.704 (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal that includes additional evidence pertinent to her claims, which was considered by the agency of original jurisdiction (AOJ), and her representative's June 2013 Appellant's Brief. The issues of entitlement to service connection for right and left knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a final May 2008 rating decision, the RO denied entitlement to service connection for left carpal tunnel syndrome and arthritis of the bilateral feet. 2. Evidence added to the record since the May 2008 denial is duplicative, cumulative, and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating either the Veteran's claim of entitlement to service connection for left carpal tunnel syndrome or the claim of entitlement to service connection for arthritis of the bilateral feet. 3. For the entire period on appeal, the Veteran's lumbar HNP has been manifested by muscle spasm severe enough to result in abnormal spinal contour, to include levoscoliosis, exaggerated lumbar lordosis, and scoliosis, without forward flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis, incapacitating episodes, or neurologic impairment. CONCLUSIONS OF LAW 1. The May 2008 rating decision that denied the Veteran's claims of entitlement to service connection for left carpal tunnel syndrome and arthritis of the bilateral feet is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007) [(2012)]. 2. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for left carpal tunnel syndrome. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for arthritis of the bilateral feet. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. For the entire appeal period, the criteria for an initial disability rating of 20 percent for lumbar HNP of the lumbar spine, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4 .14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Pertaining to the Veteran's applications to reopen her claims of entitlement to service connection for a left carpal tunnel syndrome and arthritis of the bilateral feet, June 2010 (left wrist) and June 2011 letters (feet), sent prior to the issuance of the unfavorable rating decisions in August 2010 (left wrist) and December 2011(feet), advised her that her claims had previously been denied in a May 2008 rating decision. In this regard, the June 2010 letter informed the Veteran that her claim for left carpal tunnel syndrome had been denied based on the fact that there was no evidence of such disability after service. The June 2011 letter informed the Veteran that her claim for arthritis of the bilateral feet had been denied based on the fact that there was no evidence of such disability during or after service. The letters also provided her with the definition of new and material evidence and the criteria governing service connection. In regard to the claim for an increased rating, the Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for her back disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for her back disability was granted and an initial rating was assigned in the May 2008 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Based on the above-mentioned notices, the Board finds that VA has satisfied its duty to notify the Veteran under the VCAA in regard to each of her claims adjudicated herein. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in August 2007 and July 2012 in order to assess the nature and severity of her back disability. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected lumbar HNP as they included interviews with the Veteran, review of the record, and full objective physical examinations. The Veteran has not contended, and the claims file does not otherwise indicate, that the back disorder has worsened since the July 2012 examination. Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Relevant to the Veteran's applications to reopen claims of entitlement to service connection for a left carpal tunnel syndrome and bilateral foot arthritis, the Board notes that the Veteran has not been provided with VA examination other than her pre-discharge VA examination in August 2007. However, the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(c)(1),(2) and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. As the Veteran's claims regarding left carpal tunnel and bilateral foot arthritis are not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with her appeal. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claims. II. Applications to Reopen Previously Denied Claims The Veteran claims entitlement to service connection for left carpal tunnel syndrome and arthritis of the bilateral feet as she alleges that such are related to her military service. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). As relevant to both applications to reopen the Veteran's previously denied claims, an April 2008 rating decision, which was issued in May 2008, denied service connection for left carpal tunnel syndrome and arthritis of the bilateral feet. In May 2008, the Veteran was advised of the decision and her appellate rights. However, no further communication regarding her claims of entitlement to service connection for left carpal tunnel syndrome and arthritis of the bilateral feet was received until December 2009, when VA received her application to reopen such claims. Therefore, the May 2008 rating decision is final as to both issues. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007) [(2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, while VA treatment records were received in July 2008 and December 2008, they did not pertain to the Veteran's left carpal tunnel syndrome and/or arthritis of the bilateral feet. Therefore, such regulation is inapplicable as no evidence pertaining to the Veteran's claims was received prior to the expiration of the appeal period stemming from the May 2008 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Left carpal tunnel syndrome In the May 2008 rating decision, the RO denied service connection for bilateral carpal tunnel syndrome. At that time, the RO considered the service and post-service treatment records which contained evidence of evaluation for carpal tunnel syndrome and complaints of right wrist pain, but no diagnosis specific to the left wrist. The RO also considered an August 2007 pre-discharge VA examination report which revealed that the Veteran reported a history of carpal tunnel syndrome, but no current symptoms. The examiner also found no current wrist disability upon examination. Since the May 2008 rating decision, evidence associated with the record includes additional VA treatment records and statements from the Veteran in support of her claim which were not associated with the record at the time of the last final decision. In an April 2010 letter the Veteran contended that carpal tunnel symptoms in her "fingers and ha[n]d" (side unspecified) did not start until she began doing administrative work during her military service. The VA treatment records do not document any complaints or treatment specific to her left wrist. Further, a June 2010 VA examination for a for left little finger and right hand disabilities also reflects no such complaints and indicates normal, pain-free motion of the left wrist. See VA treatment records. Likewise, the Board notes that the Veteran's lay statements do not provide any information as to an in-service event, injury, or disease that she believes specifically caused any left wrist disability. Her April 2010 statement instead suggests that she has experienced unilateral symptoms, which, based on her history of right hand and wrist complaints/treatment/diagnoses, are not pertinent to the left side. Regardless, that statement does not provide any information pertaining to her claim that was not already of record. See July 2007 claims form; see also August 2005 service treatment note. Therefore, while the VA treatment records and statements from the Veteran are new, in that they were not of record at the time of the last final rating decision in May 2008, the Board finds that the evidence is not material because it does not relate to unestablished facts necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, i.e., raise any indication that she experiences a current left wrist disability that was incurred in or is otherwise related to her military service. As a result, the Secretary's duty to assist by providing a medical examination or opinion in specific regard to the left wrist is not triggered. See Shade, 24 Vet. App. at 120. In summary, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for left wrist carpal tunnel syndrome. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's claim for that benefit is denied. Bilateral foot arthritis In the May 2008 rating decision, the RO denied service connection for arthritis of the bilateral feet. At that time, the RO considered the service and post-service treatment records which contained evidence of bilateral bunionectomies and the Veteran's subsequent complaints of pain and stiffness, but no diagnosis of arthritis in the feet. The RO also considered an August 2007 pre-discharge VA examination report which revealed that the Veteran reported a history of bilateral bunionectomies and current pain, but no functional limitations. The examiner observed pain upon examination, but x-ray revealed no degenerative changes of the feet. In the May 2008 rating decision, the RO awarded service connection for status post bunionectomies of the bilateral feet, but denied service connection for arthritis. Since the May 2008 rating decision, evidence associated with the record includes additional VA treatment records and statements from the Veteran in support of her claim which were not associated with the record at the time of the last final decision. In an August 2011 statement, the Veteran contended that she has had pain in her feet since the bunionectomies and that "it was noted in [her] records that [she] ha[s] arthritis in both feet due to the surgery." The VA treatment records do not document any foot arthritis. The Board notes that the Veteran had previously contended that she developed arthritis as the result of her in-service bunionectomies, but had not previously contended that she was diagnosed with foot arthritis while in service. However, although evidence is presumed credible for the purposes of reopening, that is not true if the evidence is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus, 3 Vet. App. at 513. Here, the Veteran has not contended, and the evidence does not suggest, that any service records are not associated with the record. The service records in the claims file plainly reflect no diagnosis of foot arthritis. Moreover, there was no evidence of arthritis upon x-ray in August 2007. The Veteran's contention of being diagnosed with arthritis of the feet in-service is without foundation and, in light of the record, untrue. Duran, 7 Vet. App. at 220. Therefore, while the VA treatment records and statements from the Veteran are new, in that they were not of record at the time of the last final rating decision in May 2008, the Board finds that the evidence is not material because it does not relate to unestablished facts necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, i.e., raise any indication that she experiences current foot arthritis. As a result, the Secretary's duty to assist by providing a new medical examination or opinion in specific regard to the bilateral feet is not triggered. See Shade, 24 Vet. App. at 120. In summary, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for bilateral foot arthritis. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's claim for that benefit is denied. III. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1 . 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's lumbar HNP is rated as 0 percent disabling prior to May 6, 2008, and 20 percent disabling thereafter, pursuant to Diagnostic Code 5242, which refers to Code 5003. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2012). Diagnostic Code 5003 provides the rating criteria for degenerative arthritis, while Code 5242 provides the rating criteria for degenerative arthritis of the spine. The provisions of Diagnostic Code 5003 mandate that arthritis be rated on the basis of limitation of motion. However, when the limitation of motion of a joint is non-compensable under the appropriate portion of the Schedule for Rating Disabilities, a 10 percent rating can be assigned for each major joint affected by limitation of motion, to include painful motion, caused by degenerative arthritis established by x-ray. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, a Veteran is not entitled to separate compensable disability awards for both arthritis (under Diagnostic Code 5003) and limitation of motion (under another diagnostic code) in the same joint. Hicks v. Brown, 8 Vet. App. 417 (1995); Lichtenfels, 1 Vet. App at 488. Pursuant to 38 C.F.R. § 4.45(f), the lumbar vertebrae are considered a group of minor joints that is ratable on a parity with a major joint. Spinal disabilities are generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), which applies to Codes 5235 to 5243, unless Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS). 38 C.F.R. § 4.71a. The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. Under the General Rating Formula, the following evaluations are to be assigned for spinal disabilities 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 is warranted for a lumbar spine disability manifested by 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 or more of the height. A 20 percent evaluation will be assigned for a lumbar spine disability where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 evaluation is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Additionally, Note (1) of the rating criteria also directs that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, should be evaluated under an appropriate diagnostic code. Id. at Note (1). 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 are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. See 38 C.F.R. § 4.71a , General Rating Formula Note (2); Plate V. Disabilities of the thoracolumbar and cervical spine segments are to be rated separately except when there is unfavorable ankylosis of both segments. The Board notes that the Veteran is in receipt of service connection for a cervical spine disability which is separately rated. As history, the Veteran's service treatment records reflect ongoing mechanical back pain with pain radiating into the right buttock and thigh. A December 2005 evaluation reflects that the sciatic area was tender, but the Veteran did not have any weakness, numbness, or tingling. A February 2006 screening report reflects that the Veteran reported a bone/joint problem that a physician's assistant identified as mild scoliosis. In March 2006, she was observed not to have any spasms, but to have scoliosis. She underwent MRI in May 2006 that revealed mild to moderate osteoarthritic changes at L3 to L5 and a herniation at L5 to S1 without spondylolisthesis. In August 2006, the Veteran reported progression of her back pain; her gait was noted to be right antalgic and she was noted to have an accentuation of lumbar lordosis as well as left lumber scoliosis. An October 2006 Medical Evaluation Board (MEB) report notes that the Veteran's HNP resulted in compression of the S1 nerve root. A February 2007 MED report reflects that the Veteran had a lumbar HNP with radiculopathy that rendered her not fit for duty. The report from an in-service April 2007 chiropractic evaluation states that the Veteran was examined in regard to lower back pain with sciatic pain that she described as "ache, dull, sharp, tingling, and numbness." The chiropractor observed asymmetrical posture with heightened right hip resulting in pelvic unleveling and paravertebral spasms at L3 to L5. The Veteran was provided a pre-discharge VA compensation examination in August 2007. At the time of the examination, the Veteran reported pain in the lower back with occasional radiation to the lower extremities. However, the examiner noted no physician-recommended incapacitation and, upon examination, found no limitation of range of motion, no spasm, no ankylosis or deformity, and no specific evidence of any nerve root involvement. VA treatment notes reflect that the Veteran reported for emergency care in May 2008 due to back pain from muscle spasm. She reported that the pain radiated to her right lower extremity. X-ray revealed mild lumbar levoscoliosis, but motor, reflex, and sensation testing was normal in the lower extremities. The following month, June 2008, MRI revealed minimal to mild disc bulge at L4 to S1. In July 2008, the Veteran wrote to VA and reported that the pain in her back was constant and prevented her from sitting for more than 20 minutes at a time or standing more than 10 minutes at a time. She complained of pain and spasms. A follow-up assessment was conducted in August 2008 and the Veteran reported ongoing back pain. Although her gait was normal, the treating clinician noted some scoliosis and range of motion that was painful in all directions. However, sensation, reflex, and motor examination was normal such that the clinician noted no clinical evidence of radiculopathy. The clinician recommended physical therapy and home exercise to flatten her "exaggerated lumbar lordosis." The Veteran again informed her VA physicians of back pain in April 2009. A December 2009 x-ray revealed "minimal facet degeneration." She described her back pain as unchanged at a January 2010 rehabilitation consultation appointment. She reported occasional cramping in her low back as well as numbness and tingling in her right lower extremity approximately once or twice a month. She specifically reported that her knees 'go numb' when she is lying in bed, a sensation which lasts approximately 10 minutes, and started approximately two months prior. The physician noted the HNP, observed the radiologic evidence of lumbar scoliosis, and prescribed medication for muscle spasms. An addendum note observes that examination revealed full range of motion and no guarding or paresthesias; the clinician observed that the Veteran was in school for business administration. January 2010 radiology again revealed mild lumbar scoliosis with convexity to the left. In late January 2010, the Veteran again reported for emergency treatment of back pain. Motor, reflex, and sensory testing was normal, but the Veteran was provided prescription pain medication for her back. The following month, she was seen for complaints of increased pain, with further radiation into the right lower extremity, but no loss of bowel or bladder function and no saddle anesthesia. She was provided a lift to wear in her left shoe. The Veteran participated in physical therapy and, in April 2010, was noted to have normal strength and tone in her bilateral lower extremities; she also reported some improvement in pain after wearing the lift in her shoe. A January 2011 VA treatment note observes back spasm. The Veteran reported her back pain as six on a ten scale in February 2011. Subsequent VA treatment notes reflect similar pain complaints. In March 2011, the Veteran wrote to VA and again contended that her back disability was more severe than as reflected by the current 10 percent rating. She again reported that her back was constantly painful. She also stated that her back "gives out, leaving [her] unable to walk 2-3 weeks at a time." The Veteran was afforded a VA spinal disorders examination in July 2012. Concurrent radiology revealed mild lumbar levoscoliosis, but no degenerative disease. The examiner diagnosed lumbar strain and observed the prior diagnosis of lumbar HNP remained valid. The report reflects that the Veteran stated that the back disability limits bending, stooping, and prolonged standing. She stated that she started, but withdrew from, culinary school because it required too much standing. Range of motion testing revealed forward flexion to 75 degrees with pain at 75 degrees and extension to 30 degrees. Right lateral flexion was painful starting at 25 degrees. There was no additional loss of range of motion following repetitive motion, but there was tenderness and pain to palpation from L5 to S1. The examiner did not observe any guarding or spasm. Muscle strength testing, reflex testing, and sensory testing was all normal. The examiner stated that the Veteran did not have any signs of symptoms of radiculopathy or any other neurologic abnormality associated with her back disability. The examiner reviewed the radiologic findings of record and noted no confirmed diagnosis of arthritis or IVDS. After considering the foregoing evidence, the Board finds that the Veteran is entitled to an initial rating of 20 percent for the entire period on appeal based on the General Formula. Significantly, the Board notes that, since the Veteran began experiencing back pain and spasms in service, multiple x-rays have revealed an abnormal contour of the spine. Specifically, in May 2008, the Veteran had muscle spasms and an x-ray revealed mild lumbar levoscoliosis. Additionally, in August 2008, scoliosis and exaggerated lumbar lordosis were noted. Likewise, a December 2009 x-ray showed lumbar scoliosis and medication was prescribed for muscle spasms. January 2010 radiology again revealed mild lumbar scoliosis with convexity to the left and a January 2011 VA treatment note observes back spasm. Finally, while no spasms were noted on examination in July 2012, an x-ray revealed mild lumbar levoscoliosis. Therefore, the Board resolves all doubt in her favor and finds that the evidence demonstrates that, for the entire appeal period, the Veteran's back disability is manifested by muscle spasms severe enough to result in abnormal spinal contour, to include levoscoliosis, exaggerated lumbar lordosis, and scoliosis. As such, she is entitled to an initial 20 percent rating for her back disability. However, the Board finds that the evidence of record does not support a rating higher than 20 percent based on range of motion. Specifically, at no point during the appeal period has the Veteran's lumbar spine been characterized by ankylosis or forward flexion limited to 30 degree or less, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, supra. In this regard, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In the instant case, the Veteran has consistently complained of low back pain as noted in her VA treatment records and the August 2007 and July 2012 VA examinations. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath, supra. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). However, despite the Veteran's complaints, pain did not result in limitation of flexion to 30 degrees or less, or ankylosis of the lumbar spine, at any time during the period on appeal. The Veteran was still able to demonstrate near-full range of motion during both of her VA examinations and during VA treatment evaluations. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Although the record reflects that the Veteran's lumbar pain did affect her spinal contour, here, the VA treatment records and VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, etc, that is not already contemplated by the now assigned 20 percent rating. Burton v. Shinseki, 25 Vet. App. 1 (2011); 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran's back disability even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. The Board has also considered whether the Veteran's service-connected lumbar spine disability has resulted in incapacitating episodes as described under Diagnostic Code 5243. However, although the Veteran has complained of incapacitation, VA examinations and VA treatment records fail to show any evidence of incapacitating episodes due to her lumbar spine disorder that meet the requirements set forth in Code 5243, i.e., requiring bed rest prescribed by a physician. Moreover, no physician has diagnosed her with IVDS and, even if her disability was rated under the IVDS formula, the criteria for a higher, 40 percent, rating require four weeks of incapacitation and she has only contended to experience incapacitation last between two and three weeks. Therefore, a higher evaluation is also not assignable under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board notes that facet degeneration was observed on x-ray in December 2009, but the July 2012 VA examiner stated there was no spinal arthritis. However, the Board notes that x-ray evidence of arthritis, even if confirmed, would not avail the Veteran of a higher disability rating. Although, as noted above, a 10 percent rating can be assigned for degenerative arthritis of the lumbar vertebrae resulting in either painful motion or non-compensable motion, that is only true when limitation of motion is non-compensable. As the Veteran is herein assigned a 20 percent rating for her lumbar HNP to compensate her for painful motion, a separate compensable disability cannot be awarded for arthritis. Hicks, 8 Vet. App. 417; Lichtenfels, 1 Vet. App at 488. Pursuant to 38 C.F.R. § 4.45(f), the lumbar vertebrae are considered a group of minor joints that is ratable on a parity with a major joint. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2012). A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The Board notes that in rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The Board finds that, although the record reflects diagnosis of radiculopathy based on the Veteran's complaints of pain and abnormal sensation radiating from her spine to her right lower extremity, there is no objective evidence of any neurological impairment caused by the lumbar spine. Motor, reflex, and sensory testing were all normal in August 2007, May 2008, August 2008, April 2010, and July 2012. Although the Veteran reported experiencing numbness in her lower extremities in January 2010 and the evaluating clinician observed that sensation to light touch was better on the right at L4 than on the left, the clinician also stated that sensation to light touch was intact and did not diagnose any neurologic abnormality. A February 2010 clinician noted decreased motor function of the quads and infrapatellar muscles, but explained that was due to current pain in the low back. Despite the January 2010 clinician's single unexplained observation of intact, but decreased sensation to light touch at L4 on the left side, two VA examiners and multiple other VA clinicians have noted no objective evidence of any neurologic abnormalities associated with the lumbar spine disability. These objective medical findings, particularly the findings of the VA examiners, have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). Furthermore, the Veteran has not alleged, and the evidence does not show, that she has bladder or bowel impairment as a result of her service-connected back disability. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected lumbar HNP resulted in neurological impairment. Although the Board considered the applicability of the benefit of the doubt doctrine, the preponderance of the evidence is against finding any neurologic disabilities associated with the Veteran's lumbar spinal disability so that doctrine is not applicable. 38 U.S.C.A. § 5107. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected lumbar HNP; however, the Board finds that her symptomatology has been stable throughout the appeal period. Therefore, the assignment of staged ratings is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. The Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry that begins with a determination as to whether or not the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbar spine disability with the established criteria found in the rating schedule. The Board finds that the lumbar spine disability at issue is fully addressed by the rating criteria under which it is rated. In this regard, the current 20 percent rating contemplates the overall functional loss from the Veteran's symptomatology attributable to her back, to include limitation of motion, pain, spasms, and abnormal spinal contour, as detailed above. There are no symptoms of her service-connected lumbar spine disability that are not addressed by the rating schedule and the rating schedule provides for disability more severe than experienced by the Veteran, to include further decrease in range of motion, ankylosis of the spine, and more than four weeks of incapacitation. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for her service-connected disability. As such, the rating schedule is adequate to evaluate her disability picture and referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96. Although entitlement to a total disability evaluation based on individual unemployability (TDIU) is considered an element of an appeal of an increased rating for the underlying disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board does not find that such issue has been raised in the instant case. In this regard, the Veteran informed the July 2012 VA examiner that she left culinary school as her back pain prevented her from standing as much as required, but she has not alleged that she is unable to work as a result of her lumbar spine disability. The claims file reflects that she also pursued higher education in the field of business administration during the appellate period. As such, the issue of entitlement to a TDIU has not been raised and need not be considered further. ORDER As new and material evidence has not been received to reopen the claim of entitlement to service connection for left carpal tunnel syndrome, the appeal is denied. As new and material evidence has not been received to reopen the claim of entitlement to service connection for arthritis of the bilateral feet, the appeal is denied. For the entire appeal period, an initial disability rating of 20 percent, but no higher, for lumbar HNP is granted, subject to the statutes and regulations governing the payment of VA compensation. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims of entitlement to service connection for right and left knee disorders so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that she currently has a bilateral knee disorder as a result of the general physical requirements of her active duty service. The Veteran's service treatment records do not reflect that she was treated for, or diagnosed with, knee disorders. She expressly denied experiencing any knee trouble on self reports of medical history completed in October 1997, September 2002, and January 2004. Notes from an August 2006 Medical Evaluation Board proceeding reflect that her medical history was significant for right hand pain and chronic back pain, but she had "no other joint complaints." Additionally, at the time of the pre-discharge VA examination in August 2007, the Veteran did not report any knee symptoms and examination revealed that her knees were normal. Specifically, range of motion, repetitive motion, cruciate ligaments, collateral ligaments, joint lines, and menisci were all evaluated as normal and without pain, fatigue, weakness, lack of endurance, or incoordination. However, in December 2009, the Veteran reported for VA treatment of knee pain that she stated began in June 2009. Radiology revealed no evidence of fracture or dislocation, no significant knee joint effusion, and no significant degenerative changes. Soft tissues were within normal limits. In April 2010, the Veteran reported that she had been "told" by a doctor in service that her knees were bad and would "start bothering [her] soon." She stated that they currently caused her pain.. A June 2010 VA treatment note also shows that the Veteran reported having been informed during service that her knees would trouble her in the future. The same month, she was seen for spinal complaints and also reported at that time that her knees felt numb on occasion when she lay in bed. The Veteran was referred for an orthopedic evaluation in August 2010. She informed the orthopedist that she had no specific knee injury, but had served as a boatswain in the Navy and had played volleyball, basketball, and baseball. The orthopedist noted no effusion and motion from zero to 145 degrees, but some fine crepitation and looseness of ligaments. He commented that she was very flexible. The orthopedist diagnosed bilateral patellofemoral dysfunction. The Veteran returned for follow-up in January 2011 and was seen by a VA orthopedic surgeon who assessed her as having a "mild knee strain - resolved." "[c]hondromalacia of patella" appears in problem lists of subsequent VA primary care appointments. However, at a July 2012 VA examination conducted for the Veteran's neck disorder, she reported that both of her knees were painful, especially on stairs. She further indicated that the left was worse than the right, with constant pain in the left knee since February 2012. Therefore, while the Veteran's service treatment records do not reflect complaints, treatment, or diagnoses referable to her knees, she has competently described her in-service duties and activities that she alleges resulted in her current knee pain, which was diagnosed bilateral patellofemoral dysfunction in August 2010. As such, the Board finds that a remand is necessary in order to afford the Veteran a VA examination in order to determine whether she has a current diagnosis of a bilateral knee disorder and, if so, whether such is related to her military service, to include her in-service duties and sport activities. Additionally, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for her bilateral knee disorder. Thereafter, any identified records, to include those from the Hampton, Virginia, VA facility dated from May 2012 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated her for her bilateral knee disorder. After securing any necessary authorization from her, obtain all identified treatment records, to include those from the Hampton VA facility dated from May 2012 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of her bilateral knee disorder. The claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. (A) The examiner should identify all current diagnoses of left and/or right knee disorders. If the examiner does not find a current diagnosis of a knee disorder, such finding should be reconciled with the August 2010 diagnosis of bilateral patellofemoral dysfunction and the inclusion of chondromalacia of patella in the Veteran's problem list. (B) For each currently diagnosed left and/or right knee disorder, the examiner should offer an opinion as to whether such is at least as likely as not related to the Veteran's military service, to include her in-service duties and sport activities. Any opinion offered must be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by information received as a consequence of the action taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs