Citation Nr: 1328574	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  12-27 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, 
Maryland


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
left knee disability.

2.  Entitlement to service connection for a left knee 
disability.

3.  Entitlement to a rating in excess of 20 percent for a 
lumbar spine disability, to include consideration of 
separate ratings for neurological impairment.

4.  Entitlement to a rating in excess of 10 percent for a 
right knee disability.

5.  Entitlement to a total disability rating based on 
individual unemployability due to service-connected 
disability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.A. Flynn, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1978 to June 
1982. 

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from a December 2009 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Baltimore, Maryland, which denied the benefits sought on 
appeal.  

This case was previously before the Board in April 2013, 
when the Board remanded the Veteran's claim in order to 
obtain records from the Social Security Administration (SSA) 
and clarify whether the Veteran wished to have a hearing 
before a Veterans Law Judge.  As an initial matter, when the 
Board's remand orders are not complied with, the Board errs 
as a matter of law when it fails to ensure compliance.  
Stegall v. West, 11 Vet. App. 268, 271 (1998).  As will be 
discussed in greater detail below, the Board finds that 
there has been effective compliance with its remand 
instructions.  Dyment v. West, 13 Vet. App. 141, 146-47 
(1999) (noting that Stegall requires substantial compliance 
with remand orders, rather than absolute compliance.)

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2012).  
38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for a left 
knee disability, entitlement to a rating in excess of 10 
percent for a right knee disability, and 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, D.C.

FINDINGS OF FACT

1.  An unappealed April 2003 rating decision denied service 
connection for a left knee disability.

2.  The evidence received since the April 2003 rating 
decision is neither cumulative nor redundant, relates to 
unestablished facts necessary to substantiate the claim, and 
raises a reasonable possibility of substantiating the claim 
for service connection for a left knee disability.

3.  The Veteran's lumbar spine disability is manifested by 
forward flexion limited by pain to no worse than 75 degrees, 
and neither ankylosis nor incapacitating episodes have been 
shown.

4.  The Veteran has right lower extremity radiculopathy 
associated with his service-connected lumbar spine 
disability that is manifested by symptoms that are no more 
than slight in severity.

5.  The Veteran has left lower extremity radiculopathy 
associated with his service-connected lumbar spine 
disability that is manifested by symptoms that are no more 
than slight in severity.


CONCLUSIONS OF LAW

1.  The April 2003 rating decision denying the Veteran's 
claim of entitlement to service connection for a left knee 
disability is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 
C.F.R. §§ 3.104, 20.302, 20.1103 (2002).

2.  New and material evidence has been received sufficient 
to reopen the claim of service connection for a left knee 
disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 (2012).

3.  The criteria for a disability rating in excess of 20 
percent for a lumbar spine disability have not been met.  38 
U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.321, 4.71a, Diagnostic Code 5237.

4.  The criteria for a separate 10 percent, but not greater, 
disability rating for right lower extremity radiculopathy 
associated with the Veteran's service-connected lumbar spine 
disability have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 
(West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 
8520.

5.  The criteria for a separate 10 percent, but not greater, 
disability rating for left lower extremity radiculopathy 
associated with the Veteran's service-connected lumbar spine 
disability have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 
(West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 
8520.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the 
Veteran's claims file.  While the Board must provide reasons 
and bases supporting this decision, there is no need to 
discuss, in detail, the evidence submitted by the Veteran or 
on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000) (the Board must review the entire record, 
but it does not have to discuss each piece of evidence).  
The analysis below focuses on the most salient and relevant 
evidence of record.  The Veteran must not assume that the 
Board has overlooked pieces of evidence that are not 
explicitly discussed in this decision.  See Timberlake v. 
Gober, 14 Vet. App. 122 (2000) (the law requires only that 
the Board address its reasons for rejecting evidence 
favorable to the Veteran).

The Board must assess the credibility and weight of all 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence that it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the Veteran.  Equal 
weight is not accorded to each piece of evidence contained 
in the record; every item of evidence does not have the same 
probative value.  When the evidence is assembled, the Board 
is responsible for determining whether the evidence supports 
the claim or is in relative equipoise, with the Veteran 
prevailing in either event, or whether a preponderance of 
the evidence is against a claim, in which case the claim is 
denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA, which 
includes an enhanced duty on the part of VA to notify a 
veteran of the information and evidence necessary to 
substantiate claims for VA benefits.  See 38 U.S.C.A. 
§§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 
(2012).  The VCAA also defines the obligations of VA with 
respect to its statutory duty to assist veterans in the 
development of their claims.  See 38 U.S.C.A. §§ 5103, 5103A 
(West 2002 & Supp. 2012).

When VA receives a complete or substantially complete 
application for benefits, it must notify the veteran of the 
information and evidence not of record that is necessary to 
substantiate the claim, which information and evidence VA 
will obtain, and which information and evidence the veteran 
is expected to provide.  38 U.S.C.A. § 5103 (West 2002 & 
Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  The notice must include notice that a disability 
rating and an effective date for the award of benefits will 
be assigned if there is a favorable disposition of the 
claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 
(West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. 
Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. 
Principi, 18 Vet. App. 112, 120-21 (2004).

Prior to the initial adjudication of the Veteran's claim, a 
letter dated November 2009 was sent to the Veteran in 
accordance with the duty to notify.  38 U.S.C.A. § 5103 
(West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  This letter informed the 
Veteran of information and evidence necessary to 
substantiate the claim, information and evidence that VA 
would seek to obtain, information and evidence that the 
Veteran was expected to provide, and information regarding 
the process by which initial disability ratings and 
effective dates are established.  The Board finds that the 
notice requirements have been fulfilled and that no further 
notice is necessary.

With respect to the duty to assist, VA has done everything 
reasonably possible to assist the Veteran with respect to 
his claim for benefits.  38 U.S.C.A. § 5103A (West 2002); 38 
C.F.R. § 3.159(c) (2012).  The Veteran's service treatment 
records, post-service VA treatment records, and records from 
the SSA have been obtained, to the extent available.  The 
Veteran was provided with a VA examination in May 2009.  
Upon review of this examination report, the Board observes 
that the examiner reviewed the Veteran's claims file and 
past medical history, recorded his current complaints and 
history, conducted an appropriate evaluation, and rendered 
an appropriate diagnosis and opinion consistent with the 
remainder of the evidence of record.  

As the Board noted in its April 2013 Remand, while the RO 
indicated that the Veteran submitted a Substantive Appeal, 
that document was neither in the claims file nor in the 
Veteran's Virtual VA electronic file.  The Board noted that 
the Veteran's March 2010 Notice of Disagreement expressed a 
desire for a hearing in Washington, D.C.  Accordingly, the 
Board instructed the AMC to clarify with the Veteran whether 
he desired a hearing before the Board.  In April 2013, the 
AMC sent a letter to the Veteran to indicate whether or not 
he desired a hearing before a Veterans Law Judge.  The April 
2013 letter further advised the Veteran that a decision 
would be made in his case if he did not respond within 30 
days.  To date, the Veteran has not provided a response to 
this request.  Under the circumstances, the Board considers 
the Veteran's hearing request to have been withdrawn.  Thus, 
the duties to notify and assist have been met, and the Board 
will proceed to a decision.

New and Material Evidence

In general, decisions of the RO and the Board that are not 
appealed in the prescribed time period are final.  38 
U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 
20.1100, 20.1103 (2012).  A finally disallowed claim may be 
reopened when new and material evidence is presented or 
secured with respect to that claim.  If new and material 
evidence is presented or secured with respect to a claim 
that has been disallowed, VA must reopen the claim and 
review the former disposition.  38 U.S.C.A. § 5108 (West 
2002); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

New evidence means existing evidence not previously 
submitted to agency decision makers.  Material evidence 
means existing evidence that, by itself or when considered 
with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.  New 
and material evidence can be neither cumulative nor 
redundant of the evidence of record at the time of the last 
prior final denial of the claim sought to be reopened, and 
it must raise a reasonable possibility of substantiating the 
claim.  38 C.F.R. § 3.156 (2012); Smith v. West, 12 Vet. 
App. 312 (1999) (if the evidence is new but not material, 
the inquiry ends and the claim cannot be reopened.)

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, including on the 
basis that there was no new and material evidence to reopen 
the claim since a prior final disallowance.  Evans v. Brown, 
9 Vet. App. 273 (1996).  For the purpose of determining 
whether to reopen a claim, the credibility of newly 
submitted evidence is presumed.  Justus v. Principi, 3 Vet. 
App. 510 (1992).  

If it is determined that new and material evidence has been 
submitted, the claim must be reopened.  VA may then proceed 
to evaluate the merits of the claim on the basis of all 
evidence of record, but only after ensuring that the duty to 
assist the Veteran in developing the facts necessary for his 
claim has been satisfied.  Elkins v. West, 12 Vet. App. 209 
(1999); 38 U.S.C.A. § 5103A (West 2002).

Regardless of what the RO has decided, the Board must 
address the question of whether new and material evidence 
has been received to reopen the claim because the issue goes 
to the Board's jurisdiction to reach the underlying claim 
and adjudicate the claim de novo.  Barnett v. Brown, 83 F.3d 
1380 (Fed. Cir. 1996).  The Board is required to first 
consider whether new and material evidence is presented 
before the merits of a claim can be considered.  Jackson v. 
Principi, 265 F.3d 1366 (Fed. Cir. 2001).  The Board must 
also note that the threshold for determining whether new and 
material evidence raises a reasonable possibility of 
substantiating a claim is "low."  See Shade v. Shinseki, 24 
Vet. App. 110, 117 (2010).

The Veteran's claim of entitlement to service connection for 
a left knee disability was last finally denied in an April 
2003 rating decision.  The RO denied the claim because the 
Veteran had not submitted any evidence showing that a 
chronic left knee condition existed.  The Veteran did not 
timely disagree with the decision, and the decision became 
final.  

The Board must determine if new and material evidence has 
been submitted since the time of the April 2003 final 
decision.  The evidence added to the record includes, among 
other records, a February 2012 private examination report 
indicating that the Veteran had a reduced range of motion in 
his left knee.  That evidence is new because it has not 
previously been submitted to VA.

Regarding the materiality of the newly submitted evidence, 
the Veteran's previous claim for service connection was 
denied because the RO found no evidence of a current 
disability.  The new evidence, which demonstrates a reduced 
range of motion in the left knee, is relevant to 
establishing the presence of a current disability.  The 
credibility of the newly submitted evidence is presumed in 
determining whether or not to reopen a claim.  Justus v. 
Principi, 3 Vet. App. 510 (1992).  Thus, the new evidence 
raises a reasonable possibility of substantiating the claim.  
38 C.F.R.  § 3.156(a) (2012).  Thus, this evidence is new 
and material and meets the "low" threshold required by Shade 
in order to reopen the claim.  As new and material evidence 
has been received, the claim for service connection for a 
left knee disability is reopened.

Increased Rating

Disability evaluations are determined by the application of 
a schedule of ratings, which is based on average impairment 
of earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R. Part 4 (2012).  Separate diagnostic codes identify 
the various disabilities.  See 38 C.F.R. Part 4 (2012).  
When there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  See 38 C.F.R. § 4.7 (2012).  Any reasonable 
doubt regarding the degree of disability is resolved in 
favor of the veteran.  See 38 C.F.R. § 4.3 (2012).

In general, when an increase in the disability rating is at 
issue, the present level of disability is of primary 
concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  
When the appeal arises from an initial assigned rating, 
consideration must be given to whether staged ratings should 
be assigned to reflect entitlement to a higher rating at any 
point during the pendency of the claim.  See Fenderson v. 
West, 12 Vet. App. 119 (1999).  However, staged ratings are 
also appropriate in any increased rating claim in which 
distinct time periods with different ratable symptoms can be 
identified.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a particular diagnostic code is 
"completely dependent on the facts of a particular case."  
Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic 
code may be more appropriate than another based on such 
factors as an individual's relevant medical history, 
diagnosis, and demonstrated symptomatology.  Any change in 
diagnostic code by a VA adjudicator must be specifically 
explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 
(1992).  

Separate disabilities arising from a single disease entity 
are to be rated separately.  See 38 C.F.R. § 4.25 (2012); 
see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  
Pyramiding, or, in other words, the evaluation of the same 
manifestation of a disability under different diagnostic 
codes, is to be avoided when rating a veteran's service-
connected disabilities.  See 38 C.F.R. § 4.14 (2012).

Disability of the musculoskeletal system is primarily the 
inability to perform the normal working movements of the 
body with normal excursion, strength, speed, coordination, 
and endurance.  See 38 C.F.R. § 4.40 (2012).  When making a 
rating determination, VA must consider whether there is less 
movement than normal, more movement than normal, weakened 
movement, excess fatigability, incoordination, pain on 
movement, swelling, deformity, atrophy of disuse, 
instability of station, or interference with standing, 
sitting, or weight bearing.  See 38 C.F.R. § 4.45 (2012); 
Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 
8 Vet. App. 202 (1995).  

Spine disabilities are rated under either the General Rating 
Formula for Diseases and Injuries of the Spine or under the 
Formula for Rating Intervertebral Disc Syndrome Based on 
Incapacitating Episodes, whichever results in the higher 
rating when all disabilities are combined.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5243 (2012).  Spine ratings involve 
consideration of the level of impairment of the veteran's 
ability to engage in ordinary activities, including 
employment, and an assessment of the effect of pain on those 
activities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012).

The General Rating Formula for Diseases and Injuries of the 
Spine provides for a 20 percent rating for forward flexion 
of the thoracolumbar spine greater than 30 degrees but not 
greater than 60 degrees, or the combined range of motion of 
the thoracolumbar spine not greater than 120 degrees, or 
muscle spasm or guarding severe enough to result in an 
abnormal gait or abnormal spinal contour such as scoliosis, 
reversed lordosis, or abnormal kyphosis.  A 40 percent 
rating is assigned for forward flexion of the thoracolumbar 
spine to 30 degrees or less, or favorable ankylosis of the 
entire thoracolumbar spine.  A 50 percent rating is assigned 
for unfavorable ankylosis of the entire thoracolumbar spine.  
A 100 percent rating is assigned for unfavorable ankylosis 
of the entire spine.  38 C.F.R. § 4.71a, General Rating 
Formula for Diseases and Injuries of the Spine (2012).

For rating intervertebral disc syndrome based on 
incapacitating episodes, a 20 percent rating is assigned for 
incapacitating episodes having a total duration of at least 
two weeks but less than four weeks during the past 12 
months.  A 40 percent rating is assigned for incapacitating 
episodes having a total duration of at least four weeks but 
less than six weeks during the past 12 months.  A 60 percent 
rating is assigned for incapacitating episodes having a 
total duration of at least six weeks during the past 12 
months.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula 
for Rating Intervertebral Disc Syndrome Based on 
Incapacitating Episodes (2012).  An incapacitating episode 
is a period of acute signs and symptoms due to 
intervertebral disc syndrome that requires bed rest 
prescribed by a physician and treatment by a physician.  38 
C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2012).  

The normal range of motion for the thoracolumbar spine is as 
follows: forward flexion of 0 to 90 degrees, extension of 0 
to 30 degrees, left and right lateral flexion of 0 to 30 
degrees, and left and right lateral rotation of 0 to 
30 degrees.  The normal combined range of motion of the 
thoracolumbar spine (the sum of the range of forward 
flexion, extension, left and right lateral flexion, and left 
and right rotation) is 240 degrees.  38 C.F.R. § 4.71a, 
General Rating Formula for Diseases and Injuries of the 
Spine, Note (2) (2012).  When rating diseases and injuries 
of the spine, any associated objective neurological 
abnormalities, including, but not limited to, bowel or 
bladder impairment, should be rated separately, under an 
appropriate diagnostic code.  38 C.F.R. § 4.71a, General 
Rating Formula for Diseases and Injuries of the Spine, Note 
(1) (2012). 

Turning to the facts in the instant case, in February 2009, 
a VA clinician noted that the Veteran's history of 
intervertebral disc disease, and the Veteran presented with 
a five-day history of low back pain.  The Veteran described 
the pain as sharp with a 10/10 intensity.  The Veteran 
complained of difficulty ascending and descending stairs, 
shifting side-to-side, and bending over.  The Veteran 
indicated that he experienced pain approximately every one 
to two months, with each episode lasting two to three days 
at most.  In March 2009, a VA clinician noted the Veteran's 
complaints of low back pain and indicated that the Veteran 
had "decreased forward flexion."  March 2009 x-ray testing 
indicated that the Veteran had a slight scoliosis with 
convexity to the left; the examiner indicated that this 
could be due to the Veteran's malpositioning.  There was 
loss of the normal lumbar lordosis as a result of muscle 
spasm.  The radiologist's impression was degenerative 
osteoarthritis with narrowing of multiple intervertebral 
disc spaces and possible minimal scoliosis.  

In a December 2009 neurological examination, the examiner 
noted that the Veteran had 75 degrees of flexion, 10 degrees 
of extension, 10 degrees of right and left lateral flexion, 
and 45 degrees of right and left rotation, all with pain.  
There was no change in the Veteran's range of motion 
following three repetitions.  In a separate December 2009 
spine examination, the examiner indicated that the Veteran 
experienced flare-ups of his spinal condition that were 
moderate in severity, occurred weekly, and lasted for hours 
at a time.  The Veteran's flare-ups were precipitated by 
bending, lifting, and prolonged standing.  The Veteran 
indicated that his back became stiff and his range of motion 
decreased during a flare-up.  The examiner indicated that 
the Veteran had not experienced incapacitating episodes of 
spine disease.  The Veteran wore a brace and was able to 
walk approximately one to three miles.  

Upon physical examination, the Veteran's posture was normal, 
his head position was normal and symmetrical in appearance.  
The Veteran's gait was normal.  The examiner observed 
scoliosis, but there was no gibbus, kyphosis, list, lumbar 
flattening, lumbar lordosis, reverse lordosis, or ankylosis.  
There was no spasm, atrophy, or weakness, but the examiner 
observed guarding, pain with motion, and tenderness.  The 
Veteran's muscle spasm, localized tenderness, or guarding 
was not severe enough to be responsible for an abnormal gait 
or abnormal spinal contour.  The Veteran had flexion to 75 
degrees, extension to 10 degrees, left lateral flexion to 10 
degrees, left lateral rotation to 45 degrees, right lateral 
flexion to 10 degrees, and right lateral rotation to 45 
degrees.  The examiner observed objective evidence of pain 
in the Veteran's active range of motion.  Repetitive motion 
produced pain, but it did not produce additional loss of 
motion.  The Veteran's condition would cause no effect on 
his ability to engage in shopping, traveling, feeding, 
bathing, toileting, or grooming.  The Veteran's condition 
had a mild effect on his ability to engage in chores and 
dressing, and it had a moderate effect on his ability to 
engage in recreation.  The Veteran's condition had a severe 
effect on his ability to engage in exercise, and it 
prevented him from engaging in sports.  

In a February 2012 examination conducted in conjunction with 
the Veteran's application for SSA benefits, the Veteran had 
flexion to 75 degrees, extension to 25 degrees, normal 
bilateral lateral flexion, and 20 degrees of bilateral 
lateral rotation.  

Applying the relevant rating criteria to the facts in the 
instant case, the Veteran has never been diagnosed with 
ankylosis, nor have his symptoms closely approximated 
ankylosis or immobility.  On the contrary, the record shows 
that the Veteran has maintained motion, albeit limited, in 
the thoracolumbar spine throughout the course of the appeal.  
A rating of 50 percent or greater is therefore unwarranted 
at any time under the General Rating Formula for Diseases 
and Injuries of the Spine.  A 40 percent evaluation is 
similarly unwarranted because forward flexion of the 
thoracolumbar spine has never been limited to 30 degrees or 
less, even taking into account functional limitations.  See 
38 C.F.R. § 4.71a, General Rating Formula for Diseases and 
Injuries of the Spine (2012).  

In reviewing the evidence, the Board considered functional 
loss due to pain and weakness that causes additional 
disability beyond that which is reflected on range of motion 
measurements.  38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 
Vet. App. 202 (1995).  The Board has considered the effects 
of weakened movement, excess fatigability, and 
incoordination.  See 38 C.F.R. § 4.45 (2012).  Although the 
Board accepts the Veteran's competent and credible 
assertions that his spine disability causes him to 
experience pain, the Board has taken this into account in 
its above discussion of range of motion.  The rating 
schedule does not require a separate rating for pain itself.  
See Spurgeon v. Brown, 10 Vet. App. 194 (1997).  
Furthermore, even when the Veteran's complaints of pain are 
considered, the Board concludes that the overall 
manifestations of his lumbar spine disability generally do 
not demonstrate a degree of functional loss akin to the 
above-listed criteria associated with a disability rating of 
40 percent or greater.

With regard to a greater rating based on intervertebral disc 
syndrome, the evidence does not suggest that the Veteran has 
suffered from incapacitating episodes.  As noted above, the 
term "incapacitating episode" means a period of acute signs 
and symptoms that requires bed rest prescribed by a 
physician and treatment by a physician.  While the Board 
accepts the Veteran's contention that his condition causes 
him pain that requires him to lie down, the evidence does 
not suggest that the periods of bed rest have been 
prescribed by a physician.  Without physician-prescribed 
periods of bed rest associated with intervertebral disc 
syndrome, the Veteran is not entitled to a greater rating 
based on incapacitating episodes.

In sum, the Board finds that the orthopedic manifestations 
of the Veteran's lumbar spine disability do not warrant a 
rating in excess of 20 percent at any time.

Turning next to neurological manifestations, the Veteran is 
not currently in receipt of a separate rating for the 
neurological manifestations of his lumbar spine disability.  
Diagnostic Code 8520 provides the rating criteria for 
paralysis of the sciatic nerve.  Disability ratings of 10 
percent, 20 percent and 40 percent are assigned for 
incomplete paralysis that is mild, moderate, or moderately 
severe in degree, respectively.  A 60 percent rating is 
warranted for severe incomplete paralysis with marked muscle 
atrophy.  Complete paralysis of the sciatic nerve is rated 
80 percent and contemplates foot dangling and dropping, no 
active movement possible of muscles below the knee, and 
flexion of the knee weakened or (very rarely) lost.  
38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012).  

The term "incomplete paralysis" indicates a degree of lost 
or impaired function substantially less than the type 
pictured for complete paralysis with each nerve, whether due 
to varied level of the nerve lesion or to partial 
regeneration.  When the involvement is wholly sensory, the 
rating should be for the mild, or at most, the moderate 
degree.  The rating schedule does not define the terms mild, 
moderate, or severe as used in the diagnostic codes.  
Instead, adjudicators must evaluate all of the evidence and 
render a decision that is equitable and just.  38 C.F.R. 
§ 4.6 (2012).

Turning to the facts in the instant case, in February 2009, 
the Veteran indicated that he experienced aching pain that 
radiated into his left leg down to the knee.  The Veteran 
did not have any tingling, numbness, or weakness of the 
lower extremities.  In March 2009, the Veteran complained of 
pain radiating into his right leg.  The Veteran's range of 
motion and muscle strength was within normal limits in both 
lower extremities.  The Veteran's deep tendon reflexes and 
sensory testing were normal in both lower extremities.  In a 
December 2009 VA neurological examination, the Veteran 
complained of dull, aching pain that was occasionally sharp 
in nature due to muscle spasms.  The Veteran complained of 
shooting pain in his right leg.  Upon physical examination, 
cranial nerves 2-12 were intact and finger-nose coordination 
was normal bilaterally.  The Veteran's gait was normal, and 
his motor strength was 5/5 throughout.  Light touch, pin, 
and vibratory sensation were reduced in the right foot.  The 
Veteran's deep tendon reflexes were 1+ throughout with 
bilateral downgoing plantars.  Straight leg testing was 
negative bilaterally.  The examiner diagnosed the Veteran 
with chronic low back pain and lumbar radiculopathy 
secondary to degenerative disc disease of the lumbar spine.  

In a separate December 2009 spine examination, the Veteran 
complained of radiating pain down his right leg into the 
right foot, and the Veteran sometimes felt numbness and 
weakness in the right lower leg and right foot.  The Veteran 
complained of urinary incontinence and erectile dysfunction, 
but the examiner noted that these symptoms were associated 
with the Veteran's recent prostate surgery.  The Veteran 
denied urinary urgency, urinary retention, urinary 
frequency, nocturia, fecal incontinence, obstipation, leg or 
foot weakness, falls, or unsteadiness.  The Veteran 
indicated that he experienced numbness.  The Veteran denied 
experiencing fatigue or weakness, but he indicated that he 
experienced decreased motion, stiffness, spasms, and pain.  
Motor examination showed active movement against full 
resistance.  Muscle tone was normal, and there was no muscle 
atrophy.  The Veteran had impaired sensation as to 
vibration, pain, and light touch in the right lower 
extremity; the Veteran's sensory testing was otherwise 
normal.  Reflex testing was normal, except that abdominal 
reflexes were absent, and knee jerk reflexes were hypoactive 
bilaterally.  

In a February 2012 examination conducted in conjunction with 
the Veteran's application for SSA benefits, the Veteran 
complained of weakness, numbness, and a tingling sensation 
in the lower extremities.  Cranial nerves 2 through 12 
appeared normal.  The examiner noted decreased deep tendon 
reflexes, particularly in the lower extremities.  The 
Veteran had no response to vibratory stimulation in the 
lower extremities distal to the knees.

Giving the Veteran the benefit of the doubt, based on the 
Veteran's initial complaints of left lower extremity 
radiating pain in February 2009 and right lower extremity 
complaints of right lower extremity pain in March 2009, 
which were later diagnosed as lumbar radiculopathy as 
secondary to the Veteran's disc disease of the lumbar spine 
in December 2009, and the medical findings and continuing 
complaints thereafter, the Board finds that the Veteran's 
neurological manifestations rise to the level of not more 
than mild incomplete paralysis of the right and left lower 
extremity throughout the relevant time period on appeal.  

In sum, with the exception of the assignment of separate 10 
percent ratings for right and left lower extremity 
radiculopathy, the Board has considered whether even higher 
ratings might be warranted for any time during the pendency 
of this appeal for the Veteran's lumbar spine disability.  
However, the weight of the credible evidence demonstrates 
that the orthopedic manifestations of the Veteran's lumbar 
spine disability warrant no more than a 20 percent rating, 
and the neurological manifestations of the Veteran's lumbar 
spine disability do not warrant more than 10 percent ratings 
based on mild impairment.  All reasonable doubt has been 
resolved in favor of the Veteran in making this decision.  
The preponderance of the evidence is against the assignment 
of any higher ratings.  38 U.S.C.A. § 5107(b) (West 2002); 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Extra-schedular Considerations

In addition, the Board has considered whether the Veteran is 
entitled to a greater level of compensation on an extra-
schedular basis.  Ordinarily, the VA Schedule will apply 
unless there are exceptional or unusual factors that render 
application of the schedule impractical.  See Fisher v. 
Principi, 4 Vet. App. 57, 60 (1993).

In Thun v. Peake, the United States Court of Appeals for 
Veterans Claims (Court) set forth a three-step inquiry to 
determine a veteran's entitlement to an extra-schedular 
rating.  See 22 Vet. App. 111 (2008).  First, the Board must 
determine whether the evidence presents such an exceptional 
disability picture that the available schedular evaluations 
for that service-connected disability are inadequate.  
Second, if the schedular evaluation does not contemplate the 
veteran's level of disability and symptomatology and is 
found to be inadequate, the Board must determine whether the 
veteran's disability picture exhibits other related factors 
such as those provided by the regulation as "governing 
norms."  Third, if the rating schedule is inadequate to 
evaluate a veteran's disability picture and that picture has 
attendant thereto related factors such as marked 
interference with employment or frequent periods of 
hospitalization, then the case must be referred to the Under 
Secretary for Benefits or the Director of the Compensation 
and Pension Service to determine whether, to accord justice, 
the veteran's disability picture requires the assignment of 
an extra-schedular rating.

In this case, it is not necessary to go any further than the 
first step of the Thun analysis.  The rating criteria are 
not inadequate, and it does not appear that the Veteran has 
"exceptional or unusual" disabilities; he merely disagrees 
with the assigned evaluation for his level of impairment.  
In other words, he does not have any symptoms from his 
service-connected spine condition and newly assigned 
separate ratings that are unusual or are different from 
those contemplated by the schedular criteria.  The available 
schedular evaluations are adequate.  Referral for extra-
schedular consideration is not warranted.  Further inquiry 
into extra-schedular consideration is moot.  See Thun, 
supra.


ORDER

The claim for service connection for a left knee disability 
is reopened, and the appeal is allowed to that extent only.

A rating in excess of 20 percent for a lumbar spine 
disability is denied.

A separate 10 percent, but not higher, rating for right 
lower extremity radiculopathy is granted, subject to the 
statues and regulations governing the payment of monetary 
benefits.

A separate 10 percent, but not higher, rating for left lower 
extremity radiculopathy is granted, subject to the statues 
and regulations governing the payment of monetary benefits.






REMAND

The Board finds that further development of the record is 
needed with respect to the reopened claim for service 
connection for a left knee disability, the claim for an 
increased rating for a right knee disability, and the claim 
for a TDIU, which is being recognized by the Board pursuant 
to Rice v. Shinseki, 22 Vet. App. 447 (2009).  

With respect to the Veteran's reopened claim for service 
connection for a left knee disability, VA must provide an 
examination when there is evidence of (1) a current 
disability, (2) an in-service event, injury, or disease, (3) 
some indication that the claimed disability may be 
associated with the established event, injury, or disease, 
and (4) insufficient competent evidence of record for VA to 
make a decision.  McLendon v. Nicholson, 20 Vet. App. 79 
(2006).  The Veteran has arguably satisfied each of these 
elements.  A February 2012 private examination report, which 
indicates that the Veteran has an impaired range of motion 
in the left knee, suggests that the Veteran may have a 
disability of the left knee.  With respect to the second 
McLendon element, the Veteran is service-connected for a 
right knee disability, and the Veteran has claimed, in part, 
that his left knee disability is secondarily related to his 
service-connected right knee disability.  With respect to 
the third McLendon element, no VA examiner has opined as to 
the likelihood of a relationship between the Veteran's left 
knee disability and either his active duty service or his 
right knee disability.  Accordingly, the Board finds that 
the Veteran should be afforded a VA examination in order to 
determine the nature and etiology of his left knee 
disability. 

With respect to the Veteran's claim for an increased rating 
for a right knee condition, the present level of disability 
is of primary concern when entitlement to compensation has 
already been established and an increase in the disability 
rating is at issue.  See Francisco v. Brown, 7 Vet. App. 55, 
58 (1994).  While a new VA examination is not warranted 
based solely upon the passage of time, VA's duty to assist 
includes providing a new medical examination when a Veteran 
asserts or provides evidence that a disability has worsened 
and the available evidence is too old for an adequate 
evaluation of the current disability.  See Palczewski v. 
Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 
Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 
377, 381 (1994) (finding that the Board should have ordered 
a contemporaneous examination of the veteran because a 23-
month old examination was too remote in time to adequately 
support the decision in an appeal for an increased rating).

The Veteran last received a VA examination of his right knee 
condition in May 2009, at which time the Veteran 
demonstrated full extension of his right knee.  In a 
February 2012 examination conducted in conjunction with the 
Veteran's application for SSA disability benefits, a private 
examiner noted that the Veteran's right knee extension was 
"reduced about 10 degrees."  Thus, the evidence suggests 
that the symptoms associated with the Veteran's right knee 
condition may have worsened since the time of the May 2009 
VA examination.  Accordingly, an additional VA examination 
of the Veteran's right knee is necessary to accurately 
evaluate the severity of his disability.

Additionally, the issue of a TDIU is part of an increased 
rating claim when a request for TDIU is reasonably raised by 
the record.  Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  
The Board finds that possible entitlement to TDIU has been 
raised by the record, and the claim must be remanded for 
additional evidentiary development.  In May 2009, a VA 
examiner noted that the Veteran had been unemployed for one 
to two years as a result of pain associated with his 
service-connected right knee and spine conditions.  
Accordingly, an examination to determine the effects of the 
Veteran's service-connected disabilities on his 
employability is warranted.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited 
handling is requested.)

1.  Contact the Veteran and provide him 
with the opportunity to identify or submit 
any additional pertinent evidence in 
support of his claim.  Based on the 
Veteran's response, attempt to procure 
copies of all records that have not been 
previously obtained from identified 
treatment sources.  Ensure that all 
records of which RO has notice have been 
obtained and either associated with the 
claims file.

2.  Then, schedule the Veteran for a VA 
examination with an examiner of 
appropriate expertise to determine the 
nature and etiology of the Veteran's left 
knee disability and the current severity 
of the Veteran's right knee disability.  
All indicated tests and studies must be 
performed.  The claims folder must be 
reviewed by the examiner in conjunction 
with the examination.  Following a review 
of the Veteran's claims file, physical 
examination of the Veteran, and 
consideration of the Veteran's statements, 
the examiner must:
	
a) With respect to the Veteran's 
service-connected right knee 
disability, describe the current 
severity of the Veteran's disability in 
detail.

b)  With respect to the Veteran's 
claimed left knee disability, address 
the following questions:

i) Has the Veteran at any time 
during the appeal period suffered 
from a left knee disability?  

ii) Is it at least as likely as 
not (that is, a 50 percent 
probability or greater) that the 
Veteran's left knee disability (if 
found to exist at any time during 
the appeal period) had an onset in 
service or is otherwise related to 
service?  

iii) Is it at least as likely as 
not (that is, a 50 percent 
probability or greater) that the 
Veteran's left knee disability (if 
found to exist at any time during 
the appeal period) was caused by 
any of the Veteran's service-
connected disabilities?  

iv) Is it at least as likely as 
not (that is, a 50 percent 
probability or greater) that the 
Veteran's left knee disability (if 
found to exist at any time during 
the appeal period) was aggravated 
(that is, permanently increased in 
severity beyond the natural 
progress of the disorder) by any 
of the Veteran's service-connected 
disabilities?

3.  Then, schedule the Veteran for an 
examination with an examiner of 
appropriate expertise to evaluate the 
effects of the Veteran's service-connected 
disabilities on his ability to obtain 
substantially gainful employment.  The 
examiner should offer an opinion regarding 
the Veteran's ability to obtain and 
maintain gainful employment consistent 
with his education and occupational 
experience.  The opinion should be offered 
without consideration of age and any 
nonservice-connected disabilities.  The 
examiner must review the claims file and 
must note that review in the report.  
Specifically, the examiner is requested to 
offer an opinion as to whether it is at 
least as likely as not that the Veteran's 
service-connected disabilities, acting 
together, are so severe as to preclude the 
Veteran from substantially gainful 
employment.  If the Veteran is found to be 
capable of work, the examiner should state 
the type of work that the Veteran can 
perform and what accommodations would be 
required due to the service-connected 
disabilities for the Veteran to maintain 
that employment.  The examiner should not 
base the opinion solely upon demonstrated 
difficulty in obtaining employment in one 
particular field, which could also 
potentially be due to external bases such 
as economic factors, but rather to all 
reasonably available sources of employment 
under the circumstances.  The complete 
rationale for all opinions expressed 
should be provided, to include reference 
to pertinent evidence where appropriate.

4.  Then readjudicate the claim.  If the 
decision is adverse to the Veteran, issue 
a supplemental statement of the case and 
allow the appropriate time for response.  
Then, return the claim to the Board.

The Veteran has the right to submit additional evidence and 
argument on the matters that the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or 
by the United States Court of Appeals for Veterans Claims 
for additional development or other appropriate action must 
be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West 2002 & Supp. 2012).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs