Citation Nr: 1331161 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-22 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for residuals of a right knee arthroplasty, rated 30 percent from August 1, 2008, to March 23, 2012, and 50 percent as of March 23, 2012. 2. Entitlement to an increased rating for a lumbar spine disability, rated 20 percent. 3. Entitlement to an initial increased rating for a left lower extremity neurologic disability, rated 10 percent. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to February 1987. This matter is on appeal from rating decisions in October 2008 and April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran initially requested a hearing before the Board at the RO in April 2012. He has since indicated that he did not want to testify at a hearing and desired that the Board proceed with adjudicating his claim. Thus, although a hearing was not held, VA's duty to provide him with an opportunity to provide such testimony has been fulfilled. 38 C.F.R. § 20.700 (2013). The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. From August 1, 2008, to March 23, 2012, the Veteran's prosthetic right knee symptoms have been characterized by pain and some difficulty walking; severe painful motion or weakness in the affected extremity, ankylosis of the knee in flexion between 10 and 20 degrees, limitation of extension to 30 degrees or nonunion of the tibia and fibula, with loose motion, requiring a brace, has not been shown. 2. As of March 23, 2012, the Veteran's prosthetic right knee symptoms have been characterized by pain and some difficulty walking; severe painful motion or weakness in the affected extremity or extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more have not been shown. 3. The Veteran's lumbar spine disability has been characterized by complaints of pain and tenderness, abnormal contour of the spine and some limitation of motion; forward flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome with severe recurring attacks or with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months have not been shown. 4. The neurological symptoms in the Veteran's left lower extremity have been characterized by some radiating pain and slightly diminished sensation functioning; incomplete paralysis that is moderate or moderately severe has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for residuals of a right knee arthroplasty from August 1, 2008, to March 23, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5055 (2013). 2. The criteria for a rating in excess of 50 percent for residuals of a right knee arthroplasty since March 23, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5055 (2013). 3. The criteria for a rating in excess of 20 percent for a lumbar spine disability, characterized as intervertebral disc syndrome, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5242 (2013). 4. The criteria for a rating in excess of 10 percent for a sciatic nerve disability in the left lower extremity, as associated with a lumbar spine disability, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on claims by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, and none is found by the Board. The Veteran's neurological disability rating arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As for the remaining disabilities on appeal, a letter sent to the Veteran in November 2009 that fully addressed all notice elements and was sent prior to the initial RO decision . The letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The letter also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. While that this letter was not sent prior to the initial decision regarding the Veteran's right knee disabilities, the issue was readjudicated after this notice was sent, and the Veteran was sent a supplemental statement of the case in April 2012. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the issuance of notice followed by readjudication of the claim by the RO); Prickett v. Nicholson, 20 Vet. App. 370 (2006) (issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Next, VA has a duty to assist a Veteran in the development of a claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service medical records and VA outpatient treatment records. The Veteran submitted treatment records from a private facility and his own statements in support of his claim. VA examinations with respect to the issues on appeal were obtained in September 2008, December 2009, and May 2011. 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examinations obtained are adequate. They are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claims to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for loss of working time from exacerbations or illnesses proportionate to the severity of the levels of disability. 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). The Board should consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, the reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all those elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2013). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss which requires the VA to regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the consideration of functional loss due to other factors must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. 38 C.F.R. § 4.14 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2013). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will consider entitlement to staged ratings to compensate for any times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Knee Although the Veteran has been service-connected for a right knee disability since February 1987, he underwent a prosthetic knee replacement in June 1998 and is currently rated using the criteria for rating prosthetic knee replacement under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). He has received a number of temporary total disability ratings for convalescence since 1998 and the only issues on appeal are whether a rating in excess of 30 percent rating was warranted from August 1, 2008, to March 23, 2012, and whether a rating in excess of 50 percent is warranted since March 23, 2012. The minimum rating for a prosthetic knee disability is 30 percent. A 60 percent is warranted when there is evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. However, intermediate ratings between 30 and 60 percent may also be assigned by analogy if evidence shows that such a rating is warranted under Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). Therefore, in order to be entitled to a rating in excess of 30 percent, the evidence since August 1, 2008, must show chronic residuals consisting of severe painful motion or weakness in the affected extremity (60 percent under Diagnostic Code 5055); ankylosis of the knee in flexion between 10 and 20 degrees (40 percent under Diagnostic Code 5256); limitation of extension to 30 degrees (40 percent under Diagnostic Code 5261) or nonunion of the tibia and fibula, with loose motion, requiring a brace (40 percent under Diagnostic Code 5262). 38 C.F.R. § 4.71a (2012). Based on the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted prior to March 23, 2012. Notably, while the Veteran underwent two VA examinations, neither indicated that an increased rating would be justified. At a September 2008 VA examination, he stated that he experienced localized pain constantly, exacerbated by physical activity. As a result, he was unable to sit, walk, or stand for prolonged periods of time. Upon examination, there was weakness, tenderness, and guarding of movement, but there were no signs of edema, effusion, or redness. The range of motion in the right knee was limited by pain to 120 degrees of flexion and 0 degrees of extension. While the examiner noted that there was some additional limitation after repetitive use, to include pain, fatigue, or weakness, there was no additional limitation measurable in degrees. At a December 2009 VA examination, the Veteran again reported symptoms such as painful motion and weakness. However, he denied experiencing any overall functional impairment from the condition. Upon examination, he was observed to walk unsteadily, but there was no indication of abnormal weight bearing. Tenderness was observed upon examination of the right knee, but there were no signs of edema, instability, abnormal movement, effusion, or weakness. Range of motion was limited to 110 degrees of flexion and 0 degrees of extension. While there was additional functional limitation following repetitive movement, there was no apparent change in range of motion. In addition to the VA examinations, the Veteran has also undergone a number of outpatient evaluations for his right knee. However, none of those evaluations contradict the VA examiners' observations. For example, at an evaluation in April 2009, the Veteran complained of bilateral knee pain, but the range of motion in his right knee included 110 degrees of flexion and 0 degrees of flexion. Moreover, there was no effusion or tenderness to palpation observed. In November 2009, the Veteran underwent a synovectomy in the right knee, after which time he stated that he felt little or no pain, and he was ambulating without assistance. It was also observed that his range of motion had almost completely recovered. Subsequent evaluations that same month found ranges of motion limited to, at worst, 105 degrees of flexion and 0 degrees of extension. Based on the results of the two VA examinations, and the outpatient treatment he has received, the Veteran has not exhibited ankylosis of the knee between 10 and 20 degrees, nor does the evidence show a limitation of extension to 30 degrees. Furthermore, there is no clinical indication that there was any malunion or nonunion of the fibula or tibia, and the Veteran himself has denied that he uses a brace. Finally, while there are some chronic residuals such as pain and weakness, the Board does not conclude that such pain and weakness can be characterized as severe. Most notably, at the December 2009 VA examination, the Veteran denied experiencing any overall functional impairment from the condition. Therefore, the Board finds that a rating in excess of 30 percent is not warranted from August 1, 2008 to March 23, 2012. Next, in an April 2012 rating decision, the Veteran's rating for his right knee disability was increased to 50 percent, effective March 23, 2012, based on a limitation of extension to 45 degrees. In order to warrant a rating in excess of 50 percent for a prosthetic right knee disability, the evidence must show chronic residuals consisting of severe painful motion or weakness in the affected extremity (60 percent under Diagnostic Code 5055) or "extremely unfavorable" ankylosis in flexion at an angle of 45 degrees or more (60 percent under Diagnostic Code 5256). 38 C.F.R. § 4.71a (2012). Based on the evidence of record since March 23, 2012, the Board finds that a rating in excess of 50 percent is not warranted. Specifically, at a VA examination in March 2012, the Veteran indicated that he used a cane to ambulate, but there was no other indication of functional impairment. For example, there was no indication of tenderness or pain upon palpation to the right knee. Moreover, the Veteran denied that any flare-ups were impacting the right knee functioning. Upon examination, the Veteran exhibited 140 degrees of flexion and 45 degrees of extension. Therefore, ankylosis of any sort has not been shown. Additionally, the evidence of record does not show that he has received any outpatient treatment for his knee disability after March 2012. In addition, Board also concludes that chronic residuals consisting of severe painful motion or weakness in the right knee have not been shown. The examiner noted no functional impairment other than the use of a cane. Moreover, there was no indication of tenderness or pain upon palpation, and the Veteran denied that any flare-ups had impacted his functioning. Therefore, the Board finds that a rating in excess of 50 percent is not warranted since March 23, 2012. While the Veteran's prosthetic right knee has been characterized by some pain, stiffness, and slight limitation of motion, his symptoms are not so severe such that a rating in excess of 30 percent is warranted for the period from August 1, 2008 to March 23, 2012. Moreover, the evidence does not indicate that a rating in excess of 50 percent is warranted for the period since March 23, 2012. The Board has also specifically considered the functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, increased ratings for the right knee are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the ratings already assigned. Specifically, even when considering the impact of pain and flare-up conditions, the Veteran's range of motion still exceeded what was required in order to warrant increased ratings. Moreover, the VA examiner specifically noted the amount of additional limitation in range of that was a result of pain during the examination itself. The Board also concludes that an extraschedular rating is not warranted for the Veteran's right knee residuals. Specifically, evidence does not indicate that his disability picture could not be adequately contemplated by the applicable schedular rating criteria . Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. Mittleider v. West, 11 Vet. App. 181 (1998). The Board has not only considered the requirements of the diagnostic code, but all functional limitations as well, and has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria, and the Board need not consider whether the Veteran's disability picture includes exceptional factors. Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings and the claim for increased ratings is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbar Spine and Associated Neurological Disability An April 2010 rating decision granted service connection for a lumbar spine disability with a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237, used for rating lumbosacral strain. He was also granted a separate 10 percent disability rating for neurological symptoms in his left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520, used for rating disabilities to the sciatic nerve. Lumbar strain is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Intervertebral disc syndrome will be rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). Under the General Rating Formula for Rating Diseases and Injuries of the Spine, for lumbar 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, the following ratings will apply. A rating of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). Associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of thoracolumbar spine is to 240 degrees. In exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for intervertebral disc syndrome with 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 warranted for intervertebral disc syndrome with 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 warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a , Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). Based on the evidence of record, the Board determines that a rating in excess of 20 percent is not warranted. Specifically, when the Veteran underwent a VA examination in December 2009 specifically to address his lumbar spine symptoms, he stated that his spine condition limited his ability to walk and the pain in the lumbar area is relatively constant, but could be aggravated by stress. However, he denied receiving any treatment for the condition. Upon examination, the Veteran demonstrated a posture that was slightly kyphotic and walked with a limp. While his walking was observed to be unsteady, there were no signs of abnormal weight bearing. No evidence of radiating pain was observed and only tenderness was indicated upon palpation. His measured range of motion included a forward flexion limited by pain to 65 degrees and extension limited by pain to 20 degrees. The Veteran's treatment records are notable for complaints in October 2010, characterized by chronic pain that was the lower right side that was made worse when sitting. Such symptoms ultimately led to his undergoing a laminectomy of the L4-L5 and L5-S1 discs in the following November. In the weeks following that procedure, he was observed to have normal kyphosis and lordosis, and no tenderness was shown upon palpation. After the November 2010 surgical procedure, the Veteran underwent a VA examination in May 2011. He stated that he had difficulty walking because of his spine and knee symptoms, and he still experienced constant pain. He also indicated that he experienced a 30-day incapacitating episode in March 2010, although that was the only such episode in any 12-month period. Upon examination, muscle spasm and tenderness were noted upon palpation. There was also some evidence of both guarding and an abnormal gait. The Veteran exhibited a forward flexion that was limited by pain to 40 degrees, and ankylosis was specifically observed to be absent. Based on the observations made by the VA examiners in December 2009 and May 2011, and the outpatient treatment notes, the evidence does not show that he has ever demonstrated a forward flexion limited to 30 degrees or less. Moreover, because he has shown a measurable range of motion in all directions, there is no evidence that he has any sort of ankylosis. The VA examiner in May 2011 specifically noted that ankylosis was absent. While the Veteran has stated that he experienced an incapacitating episode for a 30-day period in November 2010, the Board does not consider that an incapacitating episode for VA purposes. For VA purposes, 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). There is no clinical evidence that the Veteran was on a period of prescribed bed rest for 30 days in November 2010. In fact, the private treatment records from that month indicated that his symptoms were relatively minor following his laminectomy. Therefore, as prescribed bed rest was no shown, a rating in excess of 20 percent is not warranted based on incapacitating episodes. In considering this claim, the Board has also specifically considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, increased ratings for the lumbar spine are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the ratings already assigned. Specifically, even when considering the impact of pain and flare-up conditions, the Veteran's range of motion still exceeded what was required in order to warrant increased ratings. Moreover, the VA examiner specifically noted the amount of additional limitation in range of that was a result of pain during the examination itself. Next, the Board has considered whether a rating in excess of 10 percent for a neurological abnormality in the left lower extremity is warranted, and whether a separate rating is warranted for any other associated neurological abnormality. Any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, is also to be evaluated under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2013). Here, the Veteran is already in receipt of a 10 percent rating for neurological pathology in the left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520, used for rating paralysis, neuritis, and neuralgia of the sciatic nerve. The Board concurs that is the most appropriate diagnostic code. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). A rating in excess of 10 percent is warranted when the evidence shows, incomplete paralysis that is moderate (20 percent rating), moderately severe (40 percent rating), or severe (60 percent); or complete paralysis, characterized by evidence such as the foot dangles and drops, with no active movement possible in the muscles below the knee, and flexion of the knee that is weakened or lost (80 percent rating). 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given 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, moderate degree. 38 C.F.R. § 4.124a (2012). After reviewing the evidence, the Board determines that a rating in excess of 10 percent is not warranted for the neurological symptoms in the Veteran's left lower extremity, and a separate rating is not warranted for any other neurological symptoms. At a December 2009 VA examination, there was some sensory deficit in the left lower extremity, but none in the right. There was no indication of pathologic reflexes, nor was there any indication of bowel or bladder dysfunction. During outpatient evaluations in July and August 2010, the Veteran's motor strength was observed to be normal, and his sensory functioning was intact to pin prick and light touch. His deep tendon reflexes were also normal, and a straight leg test was negative bilaterally. At a May 2011 VA examination, no sensory deficits were observed, nor was there any lumbosacral motor weakness. Reflexes were normal bilaterally in the lower extremities. Considering those observations, the Board finds that the evidence does not indicate that the neurological symptoms in the Veteran's left lower extremity are moderate in nature. Therefore, a rating in excess of 10 percent is not warranted for neurological disorders. For wholly sensory symptoms, the rating should be for mild, or at most, moderate. However, the sensory complaints shown in this case or of a mild level of severity as they are not demonstrated on all examinations or testing. Moreover, as there are no neurological bowel or bladder disorders, or any other apparent neurological symptoms in the extremities for that matter, additional separate ratings are not warranted. The Board also determines that an extraschedular rating is not warranted. Specifically, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Moreover, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. Mittleider v. West, 11 Vet. App. 181 (1998). The Board has not only considered the requirements of the diagnostic code, but all functional limitations as well, and has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. Thun v. Peake, 22 Vet. App. 111 (2008); DeLuca v. Brown, 8 Vet. App. 202 (1995). As for all claims on appeal, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability of his right knee, lumbar spine, or neurological disabilities according to the appropriate diagnostic codes. Competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by medical personnel who have examined him during the current appeal and who have rendered opinions in conjunction with the evaluations. The medical findings directly address the criteria under which these disabilities are rated and are the most persuasive evidence in this case. Based on evidence of record, the Board determines that increased ratings for the Veteran's prosthetic right knee, lumbar spine, and neurological symptoms in the left lower extremity are not warranted for any period on appeal. The preponderance of the evidence is against the claims. Therefore, the appeal is denied. ORDER A rating in excess of 30 percent for residuals of a right knee arthroplasty from August 1, 2008 to March 23, 2012, is denied. A rating in excess of 50 percent for residuals of a right knee arthroplasty since March 23, 2012, is denied. A rating in excess of 20 percent for a lumbar spine disability is denied. An initial rating in excess of 10 percent for a left lower extremity neurologic disability is denied. REMAND The Veteran filed a claim for TDIU which was denied by the RO in an April 2010, and he did not appeal that decision. However, when a veteran submits a claim seeking an increased rating for a service-connected disability and claim unemployability, it is construed as a claim for the highest rating possible to include entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Since the April 2010 denial, the Veteran was granted service connection for coronary artery disease with a 30 percent rating in a May 2012 rating decision. Thus, although his TDIU claim was previously denied, the claim for TDIU is part of the claims for increased rating and remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran's last known address informing him of the evidence required to establish entitlement to TDIU. 2. Schedule the Veteran for a VA examination. The examiner must review the claims file and must note that review in the report. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities of right knee replacement, coronary artery disease, lumbar strain with intervertebral disc syndrome, hypertension, left knee disability, left lower extremity neurologic disability, and right knee surgical scar. The examiner should not consider nonservice-connected disabilities or age in making the opinion. If the Veteran is considered employable, the examiner should state what type of work he could perform and what accommodations would be required due to his service-connected disabilities. 3. Then readjudicate the claim for TDIU. 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 appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs