Citation Nr: 1327020 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-12 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertrophic osteoarthritis of the lumbar spine. 2. Entitlement to service connection for cervical radiculopathy of the cervical spine at C5-6 and C6-7. 3. Entitlement to service connection for Schmorl's nodes in the lumbar spine, asymptomatic. 4. Entitlement to a disability rating (evaluation) in excess of 10 percent for right knee degenerative joint disease. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1975 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In April 2013, the Veteran presented testimony relevant to the appeal at a videoconference Board hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In May 2013, the Veteran submitted additional evidence in support of the appeal, which was accompanied by a waiver of his right to its initial consideration by the agency of original jurisdiction (AOJ). 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Accordingly, the Board will consider the new evidence in the first instance during the course of appellate review. The issues of: (1) service connection for hypertrophic osteoarthritis of the lumbar spine; (2) service connection for cervical radiculopathy of the cervical spine at C5-6 and C6-7; (3) service connection for Schmorl's nodes in the lumbar spine, asymptomatic; and (4) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the rating period, the Veteran's right knee disability is manifested by meniscal tear, chronic incomplete tear of the anterior cruciate ligament, frequent episodes of locking and pain, and limitation of flexion and extension to a noncompensable degree. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for disability rating of 20 percent for right knee degenerative joint disease have been approximated for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5258 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA 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 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a July 2007 notice letter sent prior to the initial denial of the increased rating claim, the RO advised the Veteran that he may submit evidence showing that the service-connected right knee disability had increased in severity, and described the types of information and evidence that he should submit in support of the claim. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of the increased rating claim. The RO further explained how VA determines the disability rating and the effective date. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the RO afforded the Veteran with medical examinations in connection with the claim in August 2008 and June 2012. Collectively, the medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal. The medical examiners took a thorough history of the disability from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment. The medical examiners had adequate facts and data regarding the history and condition of the disability. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The medical examiners also considered the Veteran's subjective complaints as it related to current symptomatology and its effects on his daily life and performed a thorough physical evaluation of the Veteran. There is no indication of a material change in the right knee condition since the June 2012 VA medical examination. Neither the Veteran nor the representative has submitted any statement indicating that the right knee condition has worsened. For these reasons, the Board finds that the collective medical examination reports are adequate for deciding the Veteran's increased rating claim, and there is no need for further medical examination. Also, post-service treatment records adequately identified as relevant to the appeal have been obtained and are associated with the record. There are no additional treatment records found in the Veteran's Virtual VA folder. At the Board hearing, the Veteran reported that he had filed for and been denied disability benefits through the Social Security Administration in the past; however, the representative indicated that the records considered in connection with the application were either irrelevant or duplicative of records already submitted or obtained in connection with the appeal. See December 1996 VA treatment record (noting that the Veteran had applied for Social Security). Also, as the increased rating claim was submitted in May 2007, the present level of disability is of primary concern; therefore, the records considered in connection with the 1996 application for Social Security disability benefits would not be relevant. As stated above, the Veteran presented hearing testimony before the undersigned VLJ at an April 2013 videoconference Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VA employee who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the April 2013 Board hearing, the VLJ identified the issues on appeal. The Veteran provided testimony relevant to the issues such as injuries during service, past and current symptoms, diagnoses, and medical treatment, and a 2007 post-service motor vehicular accident. During the course of the hearing, the VLJ posed several questions of the Veteran in order to ascertain whether there was additional evidence that may be outstanding that would help to substantiate the appeal. After the Board hearing, the Veteran submitted additional evidence in support of the appeal accompanied by waiver. In consideration of the foregoing, the Board finds that there has been compliance with the duties outlined at 38 C.F.R. § 3.103(c)(2). The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Disability Evaluation Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, 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). Disability Rating Analysis The Veteran contends that he is entitled to a disability rating in excess of 10 percent for right knee degenerative joint disease. The right knee disability is rated at 10 percent for the rating period under hyphenated diagnostic code 5010-5260. The hyphenated diagnostic code in this case reveals that Diagnostic Code 5010 is assigned for traumatic arthritis as the service-connected disease and Diagnostic Code 5260 is assigned for limitation of leg flexion as the residual condition. 38 C.F.R. § 4.27. Diseases under DC 5010 are to be rated on limitation of motion of the affected part as degenerative arthritis under DC 5003. The Veteran was awarded a 10 percent rating for right knee degenerative joint disease and painful motion of the knee. See August 1997 rating decision. Under DC 5003, 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 joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable 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 DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. DC 5260 provides for a 0 percent rating when there is flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent evaluation is warranted for flexion limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a disability rating in excess of the current 10 percent for right knee degenerative joint disease is warranted under DC 5260. In order for the Veteran to receive a higher disability rating under DC 5260 (limitation of leg flexion), the evidence must show that the service-connected right knee disability is manifested by flexion limited to 30 degrees or less. In this case, the evidence shows that the Veteran's range of flexion was greater than 30 degrees for the entire rating period, even after consideration of Deluca factors. At the August 2008 VA medical examination, the Veteran was able to flex the knee to 95 degrees, with pain and popping from 95 degrees to 115 degrees. There was no additional limitation. Also, at the June 2012 VA medical examination, the Veteran demonstrated right knee flexion to 130 degrees, with pain beginning at 120 degrees. There was no additional limitation in range of motion following repetitive-use testing. Further, review of the Veteran's treatment records relevant to the rating period does not show that the right knee flexion has been limited to 30 degrees or less. See, e.g., June 2008 private treatment record (noting that the right knee had normal range of motion). Thus, in consideration of the foregoing, the Board finds that the Veteran's right knee flexion is not limited to the degree required for a higher evaluation under DC 5260 for the rating period. Although he is shown to have some limitation of right knee flexion at the medical examinations conducted during the period, the limitation demonstrated is to a noncompensable degree. The current 10 percent rating was awarded for limitation of motion to a noncompensable degree with painful motion, and a higher disability rating under DC 5260 is not warranted. The Board will next consider whether the Veteran is entitled to a separate rating for limitation of leg extension under DC 5261. Separate ratings may be assigned under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. However, because the evidence does not demonstrate compensable limitation of extension under the schedular criteria as will be explained below, the Board finds that VAOPGCPREC 9-04 is inapplicable in the instant case. DC 5261 provides for assignment of a noncompensable rating (i.e., 0 percent rating) for extension limited to 5 degrees, a 10 percent rating when there is evidence of extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, and higher evaluations for more severely limited extension. The evidence in this case does not support the assignment of a separate rating under DC 5261 for limitation of leg extension for the rating period. In order for the Veteran to receive a separate rating for the right knee disability under DC 5261, the evidence must show that he had right leg extension limited to 10 degrees or greater during the period. In this case, the evidence shows that the Veteran's range of flexion was greater than 30 degrees for the entire rating period, even after consideration of Deluca factors. At the August 2008 VA medical examination, the Veteran was able to extend the knee to 0 degrees, without pain and with crepitus throughout. There was no additional limitation. Also, at the June 2012 VA medical examination, the Veteran demonstrated right knee extension to 0 degrees or to a degree of hyperextension. There was no additional limitation in the range of motion following repetitive-use testing. The Veteran's treatment records similarly do not show that right knee extension has been limited to 10 degrees or to a greater degree. Therefore, because no limitation of right knee extension is shown, a separate evaluation under DC 5261 is not warranted. The Board has also considered the Veteran's complaints of pain, stiffness, locking, and giving way associated with the right knee disability. The Veteran, as a layperson, is considered competent to report any observable manifestations of the knee disability and there is no clear indication that the Veteran's report of such symptomatology is not credible. However, the medical findings do not show that any pain on use or during flare-ups, abnormal movement, fatigability, incoordination, or any other such factors have resulted in the Veteran's knee being limited in flexion or extension to the extent required for an increased or separate rating based on limitation of motion under either DC 5260 or DC 5261. DeLuca, 8 Vet. App. at 206-07 (holding that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability); 38 C.F.R. §§ 4.10, 4.40, 4.45. These factors were contemplated in the current 10 percent rating for the right knee disability for the entire rating period. The Board further recognizes that a separate rating may be assigned for instability of the knee under 38 C.F.R. § 4.71a, DC 5257 if (1) a veteran also has limitation of knee motion which at least meets the criteria for a noncompensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260 and/or 5261, or (2) if the veteran is in receipt of a 10 percent rating on the basis of X-ray evidence of arthritis and evidence of painful motion. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (Aug. 14, 1998), published at 63 Fed. Reg. 56,704 (1998); 38 C.F.R. § 4.59. However, the evidence does not show instability of the right knee at any time during the rating period. The VA medical examination reports, as well as treatment records, show a stable right knee. The objective medical evidence is found to be credible and of great probative weight because it includes findings based on physical examination of the knee by competent medical professionals trained in medical matters. Additionally, neither the Veteran nor the representative has alleged instability of the right knee. For these reasons, the Board finds that the Veteran is not entitled to a separate rating under DC 5257. After review of other potentially applicable DCs and the evidence of record, however, the Board finds that the manifestations of the Veteran's right knee disability more closely approximate the schedular criteria for a 20 percent disability rating under DC 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. In this regard, the Board notes that there is no evidence of meniscal dislocation; however, the June 2012 VA medical examination report reveals that the Veteran's right knee disability is manifested by meniscal tear. Also, when the Veteran sought private treatment for knee pain in November 2012, it was noted that magnetic resonance imaging (MRI) of the right knee showed, in pertinent part, tear of the posterior horn of the medial and lateral meniscus and chronic incomplete tear of the anterior cruciate ligament. Thus, despite the absence of evidence of meniscal dislocation, the Board finds that the Veteran's meniscal tear and chronic incomplete tear of the anterior cruciate ligament are conditions analogous to a meniscal dislocation. Additionally, the Veteran's right knee is manifested by frequent episodes of locking and pain. The June 2012 VA medical examiner noted that the Veteran had frequent episodes of joint pain associated with the right knee. Also, at the April 2013 Board hearing, the Veteran testified that he experienced "locking pain" of the right knee. See Board hearing transcript, page 11. Although the Board notes that the June 2012 VA medical examiner had the option, but did not find that the Veteran's right knee disability is manifested by frequent episodes of joint "locking," the Veteran is competent to report the symptom, and there is no indication in the record that the account is not credible. Furthermore, while the Board notes that there is no evidence of joint effusion in the record, resolving reasonable doubt in favor of the Veteran, the Board finds that the overall disability picture associated with the right knee disability more closely approximates the schedular criteria under DC 5258 such that an increased rating of 20 percent is warranted for the entire rating period. There are no other diagnostic codes that provide a basis to assign an even higher schedular evaluation for the Veteran's claimed disability for the rating period. As already discussed above, the Veteran does not demonstrate limitation of flexion or extension to a compensable degree; therefore, a higher or separate rating under DC 5260 or 5261 is not warranted. Also, the Veteran has a stable right knee; therefore, no increased rating under DC 5257 is warranted. There is no evidence of right knee ankylosis or impairment of the tibia and fibula so as to warrant a higher rating under DC 5256 or DC 5262. The remaining diagnostic codes pertaining to impairment of the knee (i.e., DC 5259 for removal of symptomatic semilunar cartilage and DC 5263 for genu recurvatum) provide no rating higher than 10 percent; therefore a higher rating is not available under either of those codes. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that an increased rating of 20 percent under DC 5258 is warranted for the entire rating period. The weight of the evidence is against the award of an even higher or a separate rating for the Veteran's right knee disability on a schedular basis for the rating period. The Board has further considered whether the increased rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the award of the 20 percent schedular rating. The Veteran's right knee disability is manifested by meniscal tear, chronic incomplete tear of the anterior cruciate ligament, frequent episodes of locking and pain, and limitation of flexion and extension to a noncompensable degree. These symptoms were considered by the Board when resolving doubt in the Veteran's favor and granting the current 20 percent rating under DC 5258. The 20 percent evaluation also considers Deluca factors as those factors were considered when evaluating the Veteran's appeal. The Veteran's pain and locking, among other symptoms, were considered when awarding the 20 percent schedular rating. The June 2012 VA examination report notes that the Veteran's right knee disability, in addition to being manifested by pain and less movement than normal (i.e., to a noncompensable degree), causes interference with sitting, standing, and weight-bearing, as well as functional limitations on prolonged walking and squatting. While the functional impairment delineated by the June 2012 VA medical examiner is not specifically discussed in the schedular criteria, the 20 percent rating contemplates the average impairment in earning capacity resulting from the right knee disability as a condition with manifestations analogous to dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Through consideration of such symptoms as locking episodes, pain, and effusion into the knee joint in the schedular criteria, any related functional impairment, including difficulty bending or weight-bearing on the knee such as while sitting, walking, or squatting are considered by the schedular criteria under DC 5258 and pursuant to 38 C.F.R. § § 4.40, 4.45 and Deluca. Although the Veteran indicated at the Board hearing that he had provided records showing diagnoses of cysts and lesions involving the right knee, there is no such medical evidence in the record. The medical evidence of record shows moderate osteoarthritis of the right knee with meniscal tear, chronic incomplete tear of the anterior cruciate ligament, frequent episodes of locking and pain, and limitation of flexion and extension to a noncompensable degree; therefore, because the Veteran's hearing testimony relating that he had been diagnosed with cysts and lesions of the right knee is not supported by the medical evidence, it is not deemed credible. In consideration of the foregoing, the Board finds, after comparing the functional impairment and symptoms manifested by the Veteran to the schedular criteria for the current rating, that the Veteran's right knee symptoms and related functional impairment are fully contemplated in the currently assigned schedular rating; therefore, no extraschedular referral is warranted in this case. ORDER A disability rating of 20 percent for right knee degenerative joint disease is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND Service connection for lumbar hypertrophic osteoarthritis and Schmorl's nodes During service, the Veteran presented for medical treatment for low back problems on several occasions from August 1978 to August 1979. Specifically, in August 1978, the Veteran complained of right hip problems for one week radiating into the right buttock and right lateral leg, which was assessed as sciatica. In April 1979, the Veteran complained of intermittent pain in both hips for duration of four months, which was diagnosed as low back pain secondary to muscle spasm. In May 1979 and June 1979, the Veteran presented for medical treatment of continued back pain. The May 1979 and June 1979 x-rays of the lumbar spine showed a small Schmorl's node at L3 and were otherwise negative. The June 1979 service medical examiner assessed probable very mild L4-5 herniated nucleus pulposus. In August 1979, the Veteran complained of a back problem for six months. When the Veteran underwent the August 2008 VA medical examination, the VA medical examiner diagnosed mild osteoarthritis of the lumbar spine, asymptomatic lumbar Schmorl's nodes, and lumbar facet joint hypertrophy with mild canal stenosis. However, the medical opinion provided by the VA medical examiner is inadequate because she did not discuss the significance of the numerous lumbar spine symptoms and findings during service, or the presence of Schmorl's nodes on x-rays performed during service. Also, it is unclear whether Schmorl's nodes, in and of themselves, may be considered a disability for compensation purposes. A Schmorl's nodule is defined as a nodule seen in radiographs of the spine due to prolapse of a nucleus pulposus into an adjoining vertebra. See Dorland's Illustrated Medical Dictionary 1271 (31st ed. 2007). The August 2008 VA medical examiner noted that that they were identified on x-rays during service and described them as asymptomatic but did not otherwise address the significance of the finding of Schmorl's nodes or whether they, in and of themselves, have disabling effects on the spine such as result in limitation of thoracolumbar motion, abnormal spinal contour, abnormal gait, muscle spasm, and neurological impairment. For these reasons, the Board finds that a remand for further medical examination and a medical opinion is necessary. Service connection for cervical radiculopathy of the cervical spine At the Board hearing, the Veteran reported that he injured his head and neck in a swimming accident that occurred during service in 1977. He indicated that he did not get medical care after this incident. See Board hearing transcript, pages 3, 5. The Veteran is competent to report the claimed incident, and there is no evidence in the record to show that the account of incident during service is not credible. The Veteran contends that the 1977 swimming injury caused a compression fracture in the cervical spine and later resulted in the current cervical spine disability, which was diagnosed as cervical radiculitis with degenerative disk disease and osteophytes at C6-C7, anterior compression fracture at C6 in a February 2007 private hospitalization record. The Veteran has not been provided with a VA medical examination for the claimed cervical spine disability. For these reasons, Board finds that a remand for a VA medical examination and medical opinion is needed. Entitlement to a TDIU At the Board hearing, the Veteran reported that he was unable to work and was retired from the postal service on disability in 2011 due to the combined effects of the bilateral knee condition, lumbar condition, and cervical condition. See Board hearing transcript, page 9. Therefore, a TDIU is reasonably raised by the record, and is part of the rating appeal for which he offered testimony before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). In consideration of the foregoing, a remand for issuance of proper notice and development is warranted. Accordingly, the issues of service connection for hypertrophic osteoarthritis of the lumbar spine, service connection for cervical radiculopathy of the cervical spine, service connection for Schmorl's nodes in the lumbar spine, asymptomatic, and entitlement to a TDIU are REMANDED for the following actions: 1. Schedule the Veteran for a VA medical examination for the claimed lumbar and cervical spine disabilities. All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the examiner in rendering the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must confirm that the record was reviewed in the examination report. a. Based on review of the record, the examiner should state, for each current diagnosis of a thoracolumbar spine disability, whether or not it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's current thoracolumbar spine disability had its onset during service, or was otherwise causally or etiologically related to service. In rendering the opinion, the examiner should discuss the significance of the lumbar complaints and findings from August 1978 to August 1979 during service, as well as the presence of Schmorl's node on the 1979 x-ray reports during service. The VA examiner should also explain whether Schmorl's nodes, in and of themselves, are disabilities or are otherwise indicative of disability or prior trauma. b. Based on review of the record, the examiner should state, for each current diagnosis of a cervical spine disability, whether or not it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's current cervical spine disability had its onset during service or was otherwise causally or etiologically related to service. In rendering the opinion, the examiner should consider the Veteran's account of head and neck injury during a swimming accident that occurred in 1977 and whether the injury caused a compression fracture in the cervical spine and/or disability involving the cervical spine. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of causation as it is to find against it. Note: A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 2. Provide the Veteran with proper notice explaining how to substantiate his claim for entitlement to a TDIU, to include which information and evidence that he is to provide, and which information and evidence that VA will attempt to obtain on his behalf. 3. Thereafter, the remanded issues should be adjudicated. If the benefits sought on appeal remain denied, the Veteran and the representative should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and the representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs