Citation Nr: 1327437 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 07-30 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disability and if so, whether service connection is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to an evaluation in excess of 10 percent prior to January 17, 2007, and in excess of 20 percent thereafter for the service-connected mechanical low back strain. 4. Entitlement to a compensable evaluation for the service-connected residuals of a fourth metacarpal shaft fracture of the right hand. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2006, July 2008, and September 2009 by the Department of Veteran's Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board is obligated to construe a claim for an acquired psychiatric disorder liberally and thus, the claim for post-traumatic stress disorder (PTSD) has been recharacterized as it appears on the cover page of the instant decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In the January 2006 rating decision, the RO awarded an increased 10 percent rating effective June 2005 for the service-connected low back strain. In an August 2007 Decision Review Officer (DRO) decision, the RO awarded an increased 20 percent evaluation effective from January 17, 2007. As this is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2011, the Veteran testified at a hearing before the Board, via videoconference. A transcript of the hearing has been associated with the claims folder. The matters were previously before the Board in September 2011 and remanded for further development and adjudication. During the pendency of the appeal service connection for traumatic brain injury, headaches, and a neck condition (to include the cervical spine) was granted. See Rating Decisions dated in September 2012 and January 2013. As such, there no longer remain claims in controversy. The claim for a right knee disability under a merits analysis, as well as the claim for an acquired psychiatric disorder, 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. FINDINGS OF FACT 1. A January 2003 rating decision determined that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for a right knee disability; the Veteran did not appeal the decision nor was new and material evidence pertinent to the issue received within one year of notice of the decision. 2. Certain items of evidence received since the January 2003 rating decision are not cumulative and redundant, and relate to an unestablished fact (current disability) that is necessary to substantiate the claim of service connection for a right knee disability. 3. Prior to January 17, 2007, the service-connected mechanical low back pain was not shown to be productive of: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. From January 17, 2007, the service-connected mechanical low back strain was not shown to be productive of forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 5. The service-connected residuals of a fourth metacarpal shaft fracture of the right hand have not been shown to be productive of: favorable or unfavorable ankylosis of the index finger; or limitation of motion of the index finger with a gap of one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension is limited by more than 30 degrees. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the Veteran's claim for service connection for a right knee disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). 2. The criteria for an evaluation in excess of 10 percent prior to January 17, 2007, and in excess of 20 percent thereafter, for the Veteran's mechanical low back strain have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5235-5243 (2012). 3. The criteria for a compensable evaluation for the residuals of a fourth metacarpal shaft fracture of the right hand have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5216- 5229 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the claim for a right knee disability, the Board believes no discussion of compliance with the notice and assistance provisions is necessary at this time. There is no prejudice to the Veteran in light of the reopening of the claim of service connection for a right knee disability. It is anticipated that any deficiencies will be remedied by the actions directed in the remand section of this decision. With respect to the claims pertaining to increased evaluations for the low back and right hand, the RO provided the Veteran pre-adjudication notice by letter dated in July 2005. Additional letters were sent to the Veteran in October 2006 (included notice pursuant to the Dingess decision), April 2009, and January 2013. The April 2009 letter also included notice of the pertinent rating criteria for disabilities of the lumbar spine and right hand. VA also has a duty to assist the Veteran in the development of the claims. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board (the transcript is of record). In January 2013, the RO made a formal finding on the unavailability of treatment records of the Veteran from the Chicago VA Medical Center (VAMC) dated from March 2001 and October 2002. The Veteran was notified that the RO had been unable to obtain these records. See letter dated in January 2013. He was asked to submit any in his possession. The Veteran did not submit any additional VA records. Any further efforts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record (including Virtual VA and Veterans Benefits Management System (VBMS)). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. New and Material Evidence Right Knee Disability The Veteran seeks to reopen his claim of service connection for a right knee disability. The record indicates that originally in a December 1994 rating decision, the RO denied a claim for a right knee condition on the basis that service treatment records show that the basketball injury suffered in service was an acute lateral/collateral ligament strain with no evidence of a current right knee disability. The Veteran did not appeal this decision and it became final. 38 U.S.C.A. § 7105(c). In January 2003, the RO determined that the Veteran's claim for a right knee condition remained denied as he failed to submit new and material evidence (showing a current right knee disability). No new and material evidence was received in the year following the issuance of the decision as it pertains to the issue on appeal. See generally 38 C.F.R. § 3.156. The January 2003 rating decision therefore became the last final decision on any basis. 38 U.S.C.A. § 7105(c). The Board must first address the issue of whether new and material evidence has been received to reopen the claim because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Of record at the time of the January 2003 rating decision were the Veteran's service treatment records, which contain an October 1976 hospitalization record for ostemylitis of the right knee. The Veteran reported leg cramps on his September 1989 enlistment medical history. The doctor noted the Veteran had been hospitalized for 20 days. The doctor further indicated that the hospital records had been reviewed and the issue had resolved with no sequelae. The corresponding physical examination was negative. Entries dated in March 1994 show the Veteran complained of right leg numbness and right knee pain. He was diagnosed with right knee edema of unknown etiology, likely bursitis. X-rays were negative. In April 1994, the Veteran complained of right knee pain after playing basketball. The diagnosis was rule out medial/collateral ligament strain and questionable lateral meniscus tear. There were no further complaints in service and the April 1994 separation examination was negative for a right knee disability. Post-service, the Veteran's knee was evaluated as normal upon VA examination in October 1994. Evidence submitted subsequent to the January 2003 rating decision includes complaints of his right knee giving out on VA examination in November 2005. VA outpatient treatment records dated in 2007, 2009, and 2010 contain reports of right knee pain. During the August 2011 Board hearing, the Veteran testified that he sustained wear and tear to his right knee from "humps" in service. He further testified that his right knee has continuously bothered him since service. As noted previously, in the January 2003 rating decision, the RO determined that new and material evidence had not been submitted to reopen the previously denied claim for a right knee disability. The RO had previously found in December 1994 that the right knee injury in service was acute and transitory. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Through statements and testimony, the Veteran indicates that he has had continued problems with his right knee as a result of injuries sustained during service. VA examination reported dated in 2005 contain complaints of the right knee giving out and VA outpatient treatment records dated in 2007, 2009, and 2010 show continued treatment for right knee pain. These "new" records are "material" when considered with the previous evidence of record. They relate to an unestablished fact (whether the Veteran has a current right knee disability) necessary to substantiate the Veteran's claim and raise a reasonable possibility of substantiating the claim. Therefore, the Veteran's claim for service connection for a right knee disability is reopened. See 38 C.F.R. § 3.156(a). B. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). (i) Mechanical Low Back Strain At the outset, the Board would note that effective on September 26, 2003, revisions were made to the VA rating schedule, which established a General Rating Formula for Diseases and Injuries of the Spine. See 68 Fed. Reg. 166, 51454-51458. (August 27, 2003). The Veteran filed his claim in June 2005. Thus, only the regulations effective on September 26, 2003, apply to this claim. The service-connected mechanical low back strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a (2012). Under Diagnostic Code 5237, lumbosacral strain 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, is assigned a 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour or ventral body fracture with loss of 50 percent or more of the height. A 20 percent rating is for disability manifested by the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. While the General Rating Formula For Diseases and Injuries of the Spine does identify criteria that would afford a higher rating of 30 percent for disability involving the cervical spine (a 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine), it does not provide for a 30 percent rating for disability associated with the thoracolumbar spine. Id An increased rating to 40 percent is warranted when a back disability is manifested by the following criteria: unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Id. Historically, service connection was awarded for mechanical low back strain in a December 1994 rating decision. An initial noncompensable evaluation was assigned effective August 1994. In the January 2006 rating decision, the RO awarded an increased 10 percent rating effective June 6, 2005. In an August 2007 DRO decision, the RO awarded an increased 20 percent evaluation effective from January 17, 2007. As this is still less than the maximum benefit available, the appeal is still pending. AB, supra. As noted above, the service-connected mechanical low back strain has been assigned a 10 percent rating prior to January 2007 and a 20 percent rating thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5237, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243, delineated above. 38 C.F.R. § 4.71a (2012). There has been radiographic evidence showing narrowing of disc space (bilateral foraminal stenosis at L4-5 and L5-S1 on magnetic resonance imaging). However, there has been no evidence of incapacitating episodes of intervertebral disc syndrome as defined by the statute to warrant a higher rating under Diagnostic Code 5243 at any stage of the appeal, to include upon VA examinations in 2005, 2007, and 2011. Id. The Board has also considered whether a separate disability rating would be appropriate for neurological findings appropriate to the site of the lumbar spine under the diagnostic codes pertinent to rating neurological disorders. However, there are no neurological disabilities associated with the service-connected mechanical low back strain. Notably, on VA examination in 2005, the Veteran reported incapacitating episodes, but this was not demonstrated in his medical record. The examination revealed that sensation was grossly intact in the superficial deep peroneal nerve distribution. There was no evidence of clonus. During VA examination in January 2007, the neurologic examination was normal. Sensation and deep tendon reflexes were intact. On VA examination in 2011, the Veteran had no tenderness to palpation along the neural spinous process or the paraspinal regions. The lower extremities had full sensation to light touch and monofilament with vibratory sensation to light touch and monofilament bilaterally. Peripheral nerve testing showed a negative Babinksi. There was no clonus. VA outpatient treatment records contained occasional complaints of radiating low back pain, but no neurological disability was found. The Veteran complained of occasional bladder incontinence in January 2007; however, this was an isolated complaint. The Veteran repeatedly denied bowel or bladder impairment, to include upon VA examinations. Thus, the Board shall consider the service-connected mechanical low back strain under the orthopedic diagnostic codes (under the General Rating Formula for Diseases and Injuries of the Spine) only in the instant decision. Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that the currently assigned 10 percent rating prior to January 17, 2007, and 20 percent thereafter, is appropriate and no higher ratings are warranted at this time. 38 C.F.R. § 4.7; see Hart, supra. In this regard, the Veteran was afforded a VA examination in November 2005. The Veteran complained of low back pain. He denied radiating pain. He indicated his pain had slightly improved. He took Vicodin and Ibuprofen for discomfort. On range of motion of the lumbar spine he was able to forward flex to 90 degrees (mild discomfort beginning at 80 degrees), extend to 30 degrees, and right and left lateral bend to each side to 35 degrees (minimal discomfort at 35 degrees). He had mild tenderness to palpation along the parapsinal musculatures of his low back region, but no muscle spasms were noted. He had negative straight leg raises. The ranges of motion during passive, active, and repetitive motions were the same. There was no limitation secondary to weakness, fatigability, incoordination, or flare-ups. The Veteran did not use assistive devices. VA outpatient treatment records dated in 2005 and 2006 simply contain complaints of back pain, to include an emergency room visit in October 2005. Prior to January 17, 2007, the mechanical low back strain was not shown to be productive of: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. The Board has considered the complaints of pain experienced in the Veteran's lumbar spine, as well as functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. However, as delineated above, the ranges of motion during passive, active, and repetitive motions were the same. There was no limitation secondary to weakness, fatigability, incoordination, or flare-ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. From January 17, 2007, while there was an increase in symptomatology to warrant the currently assigned 20 percent rating, there has also been no evidence to warrant a rating in excess of 20 percent. In this regard, on VA examination in January 2007, the Veteran complained of daily back pain. Triggering factors were the way he was sitting or how he bent over. Pain was alleviated with taking a Vicodin or a hot shower. He had no surgeries on his back. He did not use assistive devices. The Veteran indicated that when his back hurt he could only bend to 45 degrees. Physical examination showed tenderness in the vertebra and paravertebral areas. Flexion was to 45 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 40 degrees. There was pain at the end of range of motion, with no other limitation. On repetitive motion testing, there was no decrease range of motion. There was no additional functional limitation due to pain, weakness, fatigue, or lack of endurance. VA treatment records dated in February 2007 (physical therapy notes) indicate flexion, extension, and lateral flexion were limited 50 percent and bilateral rotation was limited 70 percent, but no specific ranges were provided (though for rating purposes, this would only limit flexion to 45 degrees and extension to 15 degrees). See 38 C.F.R. § 4.71a, Plate V. Records dated between 2007 and 2010 contain sporadic complaints of low back pain. The Veteran was given a TENS unit. There was a worsening of low back pain in 2010; however, it was attributed to the Veteran's December 2010 motor vehicle accident. Private treatment notes dated in 2011 remarked the Veteran had severe low back pain. Again, it was following his motor vehicle accident. The Veteran testified in August 2011 that his back pain was worse. He indicated he could not stand or sit. He indicated he had incapacitating episodes of pain. This has not been objectively demonstrated in the medical records. The Veteran was afforded another VA examination in December 2011. He complained of back pain and admitted it had been worse since his accident. He reported flare-ups of pain about two times a month. Weather changes, standing, bending, and staying in one position too long made pain worse. Ibuprofen, Vicodin, and laying down alleviated pain. He had no surgeries on his back. Physical examination of his spine showed the Veteran was able to forward flex to 80 degrees, with pain at the end of motion. Extension was to 30 degrees without pain. Lateral bending repetitively was 30 degrees without pain. Rotation was 45 degrees bilaterally without pain. He had the ability to ambulate on his toes, heels, and tandem walk. He did foot and toe raises repetitively without any weakness. Straight leg raise was negative bilaterally. The ranges of motion during passive, active and three repetitive motions were the same. There was no loss of joint function with use due to pain, weakness, fatigability, incoordination, or flare-ups. There were no assistive devices. There were no incapacitating episodes or radiation of pain. There was no effect on the usual occupation or daily activities. VA outpatient treatment records dated between 2011 and 2012 also contained complaints of low back pain. He underwent physical therapy and continued to use a TENS unit. Based on the evidence delineated above, there has been no evidence of forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant an increase to 40 percent. Id. The Board has considered the complaints of pain experienced in the Veteran's lumbar spine, as well as functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. However, even with painful motion at the end of range of motion testing in 2007, flexion was still to 45 degrees. On repetitive motion testing, there was no decrease range of motion. On examination in 2011, though there was pain at the end of flexion, the Veteran was able to forward flex to 80 degrees. Extension, lateral bending and lateral rotation were without pain. The ranges of motion during passive, active and three repetitive motions were the same. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. There was no evidence of fatigue, lack of endurance, weakness or incoordination of the lumbar spine at any time. Id. The Board has also considered a higher rating under Diagnostic Code 5003 for degenerative arthritis; however, the Veteran's mechanical low back strain is already rated based on limitation of motion as delineated above. 38 C.F.R. § 4.71a. In sum, an evaluation in excess of 10 percent prior to January 17, 2007, and in excess of 20 percent thereafter, to include additional "staged" ratings, is not warranted as the evidence does not show mechanical low back strain productive of symptomatology consistent with the requisite incapacitating episodes of intervertebral disc syndrome, neurological manifestations, or limited motion as delineated to satisfy the next higher rating. The Board would additionally find that prior to January 17, 2007, there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis to warrant a rating in excess of 10 percent. 38 C.F.R. § 4.71a; Hart, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A § 5107(b). (ii) Residuals of Fourth Metacarpal Shaft Fracture of the Right Hand Under 38 C.F.R. § 4.71a, Diagnostic Code 5225, a 10 percent rating is assigned for favorable or unfavorable ankylosis of the index finger (major or minor). Under Diagnostic Code 5229, a zero percent rating is assigned for limitation of motion of the index finger with a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension is limited by no more than 30 degrees (major or minor). A 10 percent rating is assigned for limitation of motion of the index finger with a gap of one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension is limited by more than 30 degrees (major or minor). 38 C.F.R. § 4.71a. Historically, service connection was awarded for a residual fourth metacarpal shaft fracture of the right hand in a December 1994 rating decision. An initial noncompensable evaluation was assigned effective August 1994, which remains in effect to this day. The service-connected fourth metacarpal shaft fracture has been assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5225. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that the currently assigned noncompensable rating is appropriate and no higher rating is warranted at this time. 38 C.F.R. § 4.7; see Hart, supra. In this regard, upon VA examination in November 2005, the examiner noted the Veteran had recently fallen when his knee gave out and sustained a fourth metacarpal fracture at the base, unrelated to the service-connected disability. His hand was in a splint and was unavailable for examination. Upon VA examination in January 2007, the Veteran complained of pain and numbness. He also reported pain in his right hand and swelling. He had difficulty lifting heavy objects, was unable to do twisting motions, and indicated he could barely close his hand in the morning. He did not have any joint disease. Physical examination of the right hand showed no swelling. There was tenderness to palpation over the fourth metacarpal. Motor strength, hand grip was 2/5. Motor strength at the MCP, PIP and DIP joints was 5/5. He was able to take his fingers and touch his palm, though he had difficulty doing it. He had decreased sensation on the volar aspect of the fourth and fifth digits as well as the lateral border of the hand. On the dorsal aspect, he had decreased sensation over the fourth and fifth digits as well as the lateral border of the hand around the fifth metacarpal. Otherwise, sensation was intact in the rest of the upper extremity and the rest of the hand. X-rays showed an old healed fracture of the fourth metacarpal shaft and the base. Also seen was an old fracture at the distal end of the fifth metacarpal, with slight displacement. There was no evidence of displacement. VA outpatient treatment records dated in November 2005 contain complaints of pain related to a fall and fracture at the base of the fourth metacarpal. In May 2006, the Veteran complained of right hand pain, but at the fifth digit. There was good range of motion in all digits. The Veteran underwent an electromyography (EMG) in February 2007. There was no electrodiagnostic evidence of right ulnar nerve or right digital nerve involvement. The Veteran was afforded a peripheral nerves examination in May 2007. The examiner noted the Veteran had a fifth metacarpal fracture in 1996 (after service) that required pinning. In November 2005, the Veteran sustained a fracture at the base of the fourth metacarpal. Since the last fracture, the Veteran complained of numbness of the right hand, especially involving the fourth and fifth digits. The examiner noted the findings of the February 2007 EMG. The examiner indicated that the Veteran's history suggested that his numbness began two years after his re-fracture of the fourth metacarpal, and given that the EMG and nerve conduction study was not consistent with a digital nerve involvement or ulnar nerve involvement, the Veteran's current right fourth and fifth finger numbness was not likely related to his in-service fourth metacarpal fracture. VA outpatient treatment records dated between 2006 and 2012 contain sporadic complaints of right hand pain, mainly attributed to the recent fractures. There were also some complaints of right hand numbness, but none attributed to the in-service fracture. Another EMG was performed in January 2008 that was normal. A February 2010 EMG showed mild injury to the right ulnar nerve, likely at the level of the elbow. There was no digital nerve involvement. VA outpatient treatment records contained within Virtual VA (VA's electronic database storage) dated in February 2010 contain complaints of right hand weakness and dropping objects from his hand in the morning. In July 2010, he complained of right hand pain and weakness. In April 2012, the Veteran complained of difficulty grasping things with his right hand, as well as pain and difficulty flexing the fourth finger. The provider noted the Veteran was unable to flex the distal fourth digit. In May 2012, the Veteran complained of an inability to close his fourth finger completely; however, there was no objective deformity. There was normal closure of the fourth finger on physical examination and no rotational deformity. The PIP was somewhat stiff. The Veteran was said to have excellent hand function. The Veteran was afforded an additional VA examination in December 2011. He reported not being able to fully extend his fingers out to the side on the right hand. He had multiple fractures, the most recent being in 2010. Since then he indicated he was not able to fully flex his fourth digit and could not make a full fist. Physical examination showed that when asked to make a fist, the Veteran held the DIP joint extended and said he could not bend it. He flexed the PIP to 90 degrees passively, but could go to 100 passively without painful limitation. The examiner was able to flex his DIP to 90 degree without painful limitation, but the Veteran said he could not actively flex it. With resistance testing, with his hand laying down palm up and restricting the fingers from moving, he stated he could not even attempt to flex his DIP joint, but the PIP went to 20 degrees without painful limitation. He had full range of motion of the rest of the digits without painful limitation. Looking at his hands, all the knuckles were appropriately seen without any deviation or drop of his knuckles. There was no scissoring of the fingers. They had normal anatomic lie. Sensation was intact throughout. He could fully flex his fourth digit down to his palm by 5 millimeters without painful limitation. The examiner commented that with regard to patient effort, there was no mechanical blocking, or any evidence for any boutonniere deformity or swan neck, which would indicate some type of ligamentous injury. The examiner noted that in an EMG in February 2010 there was mild injury to the right ulnar nerve likely at the level of the elbow, which would be consistent with his inability to fully extend his fingers and with weakness with his intrinsic of the right side. The fourth metacarpal fracture was considered healed and the hand x-ray was normal. Based on the evidence delineated above, there has been no evidence of favorable or unfavorable ankylosis of the index finger to warrant an increase to 10 percent under Diagnostic Code 5225. 38 C.F.R. § 4.71a. The Board had considered a higher rating under Diagnostic Code 5229; however, there was no evidence of limitation of motion of the index finger with a gap of one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension is limited by more than 30 degrees (major or minor). 38 C.F.R. § 4.71a. The Board is cognizant that with resistance testing, with his hand laying down palm up and restricting the fingers from moving, he stated he could not even attempt to flex his DIP joint, but the PIP went to 20 degrees; however, the 2011 examiner found that EMG evidence of mild injury to the right ulnar nerve likely at the level of the elbow, would be consistent with his inability to fully extend his fingers and with weakness with his intrinsic of the right side. Moreover, it was previously determined by VA examination that the Veteran's right fourth finger numbness was not related to his in-service fourth metacarpal fracture. The Board has considered the complaints of pain experienced in the Veteran's right hand, as well as functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. However, the ranges of motion during passive, active and three repetitive motions were the same on examination in 2007 and 2011. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. There was no evidence of fatigue, lack of endurance, weakness or incoordination of the right hand at any time. Id. The Board also considered a higher rating under the criteria for unfavorable ankylosis of multiple digits; however, at no time was there evidence of amputation of the index finger, resulting limitation of motion of other digits, or interference with overall function of the right hand to warrant a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5219. Similarly, there was no evidence of favorable ankylosis of multiple digits, including the index finger to warrant a higher rating under Diagnostic Codes 5220-5223. 38 C.F.R. § 4.71a. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A § 5107(b). (iii) Extraschedular Consideration Finally, the Board has considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to mechanical low back strain and residuals of a fourth metacarpal shaft fracture of the right hand that is not encompassed by the schedular criteria. The reported complaints of pain and decreased motion are fully contemplated by the schedular criteria. The Veteran has not had any hospitalization for his low back strain or his fourth metacarpal fracture. The 2011 VA examiner found no effect on the usual occupation or daily activities of the Veteran. As there is also no objective evidence, or allegation, suggesting that the schedular criteria are inadequate, the Board finds that the schedular criteria clearly encompass the symptoms and impairment shown and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). The RO separately denied a claim for individual unemployability in December 2009. The Veteran did not appeal the decision. 38 C.F.R. § 20.302(a). The Board would note there has been no allegation (or evidence) that the Veteran's low back strain or residual of a fourth metacarpal shaft fracture of the right hand has rendered him unemployable or would render him unemployable if he were to seek employment. Accordingly, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an evaluation in excess of 10 percent prior to January 17, 2007, and in excess of 20 percent thereafter, for the service-connected mechanical low back strain is denied. Entitlement to a compensable evaluation for the service-connected residuals of a fourth metacarpal shaft fracture of the right hand is denied. REMAND Further development is necessary prior to a merits analysis of the Veteran's claim of service connection for a right knee disability, as well as the claim for an acquired psychiatric disorder. Given the service treatment records showing treatment for right knee injury in service, statements and testimony of the Veteran that he has continued problems with his right knee since service, and VA outpatient treatment records confirming continued right knee complaints, the Board finds that prior to considering the merits of the Veteran's claim for a right knee disability, the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed condition. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The examiner is asked to address the specific questions set forth in the numbered paragraphs below. The pertinent facts delineated in the decision portion are incorporated by reference. The Veteran has also filed a claim for an acquired psychiatric disorder, to include PTSD. The Veteran claims that he has PTSD as a result of traumatic experiences suffered during active military service. There remains one stressor that attempts at verification have yet to be made. Specifically, the Veteran contends that his friend called him on the phone expressing desire to kill himself and the Veteran tried to talk him out of it, but could not be there in person to make a difference, and the fellow marine carried out the suicide. He feels guilt over the incident and his inability to save his friend. See VA outpatient treatment record dated January 4, 2009. The Veteran also had another friend who committed suicide and again feels guilt over not being able to do something to save them. See VA outpatient treatment record dated July 15, 2008. This matter must be remanded for verification of these stressors, in particular, by the United States Army and Joint Services Records Research Center (JSRRC). The Veteran should once again be provided information as to what evidence is required to support verification of these stressors. Upon Remand, a formal request should be made to the JSRRC to assist in verifying the reported in-service stressors. 38 U.S.C.A. § 5103A (b) (West 2002); 38 C.F.R. § 3.159(c) (2012). The matter must also be remanded for an addendum VA opinion. The Veteran was afforded a VA examination in October 2011 and an addendum opinion was rendered in December 2012. In the October 2011 report, the examiner indicated that the Veteran did not meet the criteria for PTSD as there was no behavioral, social changes, re-experiencing, heightened physiological arousal due to service or any relationship to fear of hostile military or terrorist activity. First, the Veteran does not claim that the stressors occurred during combat or are related to hostile military or terrorist activity. Next, the examiner made no reference to the multiple diagnoses of PTSD of record, to include a diagnosis dated in January 2009 indicating PTSD was secondary to marine combat readiness training indoctrination. In the addendum, the examiner stated that depressive disorder was not related to service. The examiner reasoned that the Veteran was not shown to have any mood disorder or depression until 2008; however, no reference was made to the December 2006 PTSD screen, which indicated the Veteran reported an experience that was so frightening, horrible, or upsetting that in the past month, he experienced nightmares about it, thought about it when he did not want to, avoided situations that reminded him of it, and tried hard not think about the experience. The Board would additionally note that during the pendency of the appeal, service connection was awarded for a traumatic brain injury (TBI). See Rating decision dated in September 2012. The Veteran also argued in an April 2013 statement that his TBI contributed to his PTSD. According to the rating criteria for residuals of TBI, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral; and physical. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Emotional and behavior dysfunction is evaluated under 38 C.F.R. § 4.130, Schedule of Rating Mental Disorders. The Veteran has been variously diagnosed with PTSD, Bipolar Disorder, depressive disorder, and dysthymic disorder. An addendum opinion must also be rendered to address whether the Veteran's acquired psychiatric disorder, to include PTSD, is secondary to the TBI and/or a residual of his TBI. In light of the stressor verification yet to be completed, the psychiatric examiner's failure to address all the relevant history and pertinent medical records, and a question as to whether his mental health disorder is secondary to or a residual of his TBI, an addendum opinion must be sought. 38 U.S.C.A. § 5103A(c). The examiner is asked to answer the questions set forth in the numbered paragraphs below. The last VA outpatient treatment records contained within Virtual VA are dated in December 2012. Any missing and/or ongoing VA medical treatment records pertinent to the issues must be obtained upon Remand. 38 C.F.R. § 3.159(c)(2). Finally, the VA RO should ensure that all due process requirements are met. The VA RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Take all indicated action in order to obtain copies of any VA clinical records not on file pertaining to treatment of the claimed disabilities dated from December 2012 to the present. All records and/or responses received should be associated with the claims file. 2. Contact the Veteran and request that he itemize and provide specific information regarding the suicides of two fellow marines during his service. He should be asked to identify their specific names, dates when the suicides occurred (within a 60 day period), and locations and units to which they were assigned. The Veteran should also indicate the unit to which he was assigned at the time of each incident. 3. With any additional information provided by the Veteran, and with the evidence already of record, the RO must prepare a summary of the Veteran's alleged in-service stressors (suicide of two fellow marines). This summary must be prepared regardless of whether the Veteran provides an additional statement, as requested above. This summary and a copy of the Veteran's service personnel records should be sent to the JSRRC with a request for any verifying evidence. Notably, the JSRRC should confirm whether two fellow marines committed suicide during the Veteran's active duty service. 4. After completion of the foregoing, schedule the Veteran for a VA orthopedic examination. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS 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. All indicated tests or studies must be completed. The examiner should describe all findings in detail. A complete rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resorting to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to speculation. All current disorders of the right knee should be clearly reported. The examiner should be notified that the Veteran had right knee edema of unknown etiology in March 1994 and injured his right knee playing basketball in April 1994. The Veteran contends that he has had continued problems with his right knee since service. The examiner should offer an opinion in response to the following: is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed right knee disability is related to the Veteran's period of active duty service, including any in-service basketball injury? 5. Thereafter, an addendum opinion must be sought from the examiner who provided the October 2011 and December 2012 psychiatric opinions, if available. Otherwise, the opinion must be rendered by a similarly qualified medical provider. The claims file should be made available to the examiner for review in connection with the opinion. The AMC/RO must specify for the examiner the stressor or stressors which have been corroborated, to include the suicide of two fellow marines. A complete rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resorting to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to speculation. The examiner should then respond to the following: a) In the October 2011 report, you indicated that the Veteran did not meet the criteria for PTSD as there was no behavioral, social changes, re-experiencing, heightened physiological arousal due to service or any relationship to fear of hostile military or terrorist activity. The Veteran does not claim that the stressors occurred during combat or are related to hostile military or terrorist activity. VA outpatient treatment records dated between 2008 and 2012 contain multiple diagnoses of PTSD, to include, but not limited to, a diagnosis dated in January 2009 indicating PTSD was secondary to marine combat readiness training indoctrination. Is a diagnosis of PTSD warranted? If so, is it at least as likely as not (a 50% or higher degree of probability) causally related to any corroborated stressor during service? b) In the December 2012 addendum, you state that depressive disorder was not related to service as the Veteran was not shown to have any mood disorder or depression until 2008. No reference was made to the December 2006 PTSD screen, which indicated the Veteran reported an experience that was so frightening, horrible, or upsetting that in the past month, he experienced nightmares about it, thought about it when he did not want to, avoided situations that reminded him of it, and tried hard not think about the experience. Is it at least as likely as not (a 50% or higher degree of probability) that any other current acquired psychiatric disorder(s) is/are causally related to the Veteran's active duty service, to include psychiatric symptoms noted during service? c) Service connection is in effect for TBI. The Veteran has been variously diagnosed with PTSD, Bipolar Disorder, depressive disorder, and dysthymic disorder. According to the rating criteria for residuals of TBI, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning, including emotional/behavioral dysfunction evaluated under 38 C.F.R. § 4.130, Schedule of Rating Mental Disorders. Is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed mental health disorder is a residual of his TBI? The examiner should also indicate whether any currently diagnosed mental health disorder is proximately due to, the result of, or aggravated by (permanently worsened beyond normal progression) the service-connected TBI? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the baseline before the onset of the aggravation. 6. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issues in light of all evidence of record, to include any pertinent evidence contained within Virtual VA and VBMS and statements of the Veteran dated in February 2013 and April 2013. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs