Citation Nr: 1331378 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-33 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a bilateral knee disorder, and if so, whether service connection is warranted. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for depression, to include as secondary to a service-connected disability. 4. Entitlement to service connection for migraines, to include as secondary to a psychiatric condition. 5. Entitlement to service connection for a stomach disorder, to include as secondary to a psychiatric disorder or service-connected disability. 6. Entitlement to service connection for a jaw disorder, to include as secondary to a psychiatric condition. 7. Entitlement to an evaluation in excess of 10 percent for a right ankle disability. 8. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2002 to May 2002 with additional periods of service in the Texas National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a Board hearing at the RO in Houston, Texas in September 2012. This transcript has been associated with the file. The Board notes that during the March 2007 VA examination the issue of a scar of the right ankle was raised. The scar was the result of the Veteran's right ankle surgery. However, the issue of service connection for a residual scar of the right ankle has never been adjudicated by the RO, and therefore, is REFERRED to the RO for proper adjudication. The reopened issue of entitlement to service connection for a bilateral knee disorder and the issues of entitlement to service connection for PTSD, depression, migraines, a stomach disorder and a jaw 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 November 2004 rating decision denied service connection for a bilateral knee disorder as the Veteran had not been diagnosed with this disability. 2. Evidence received since the November 2004 rating decision for the Veteran's claim is not cumulative of the evidence of record at the time of the November 2004 denial, relates to unestablished facts necessary to substantiate the claim of service connection for a bilateral knee disorder and raises a reasonable possibility of substantiating this claim. 3. The Veteran's right ankle has some limitation of motion with pain; the ankle is not ankylosed. 4. Prior to November 9, 2010 the Veteran's lumbar spine disability was manifested by limitation of extension; there were no incapacitating episodes having a total duration of at least two weeks in a twelve-month period, nor was there evidence of any associated neurological disabilities. 5. As of November 9, 2010 the Veteran's lumbar spine disability is manifested by limitation of flexion and extension with pain; there were no incapacitating episodes having a total duration of at least four weeks in a twelve-month period, nor was there evidence of any associated neurological disabilities. CONCLUSIONS OF LAW 1. The November 2004 rating decision denying service connection for a bilateral knee disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the November 2004 rating decision is new and material and the Veteran's claim of entitlement to service connection for a bilateral knee disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for an evaluation in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 4. Prior to November 9, 2010 the criteria for an evaluation in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine (2012). 5. The criteria for an evaluation of 20 percent, but no higher, for a lumbar spine disability have been met as of November 9, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in March and July 2007. These letters advised the Veteran of the information necessary to substantiate her claims and of her and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). These letters also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). During the pendency of the appeal, the VCAA notice requirements were interpreted as follows. For an increased compensation claim, the veteran must be notified that she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I). The United States Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the notice described in 38 U.S.C. § 5103(a) need not be veteran specific, i.e., it need not notify the veteran of alternative diagnostic codes, and that that the statutory scheme does not require 'daily life' evidence for proper claim adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I). The notice must advise the veteran to submit evidence demonstrating the effect that the worsening of her disability has on her employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, (2010) (Vazquez-Flores III). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and records from the Social Security Administration (SSA) and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded VA medical examinations in January 2006, March 2007, and November 2010 to determine the severity of her ankle and lumbar spine disabilities. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiners provided detailed explanations for the opinions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since she was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. New and Material Evidence Previously denied claims may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2012). "[N]ew evidence" means evidence not previously submitted to agency decision-makers, and "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. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran's claim of entitlement to service connection for a bilateral knee disorder was denied in a November 2004 rating decision. The Veteran did not appeal this decision and it is final. 38 U.S.C.A. § 7105. The evidence received since the November 2004 rating decision includes VA treatment records and examination reports and the Veteran's statements. Specifically, the Veteran has now been diagnosed with a bilateral knee disorder, patellofemoral chondromalacia. See November 2010 VA examination report. This evidence is new, as it was not previously of record at the time of the November 2004 rating decision. It is also material in that it helps to support the Veteran's contentions that her claimed disorder is related to service. Therefore, the claim is reopened. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Right Ankle Disability The Veteran has been assigned an evaluation of 10 percent for her right ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under this Diagnostic Code, a 10 percent evaluation is warranted where there is moderate limitation of motion in the ankle. A 20 percent evaluation is warranted where there is marked limitation of motion of the ankle. The normal range of ankle motion is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Words such as 'moderate' and 'marked' are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are 'equitable and just.' 38 C.F.R. § 4.6. The Veteran is in receipt of a 10 percent evaluation for her right ankle disability as of April 26, 2004. The Veteran contends that a higher evaluation is warranted. As discussed below, the Board finds no higher evaluation is warranted. The Veteran was afforded a VA examination in January 2006. She reported pain requiring ice applications as needed. She also reported taking prescription pain medication. She reported cramping and swelling, but denied weakness or stiffness. She also reported using an ankle brace. She indicated she was unable to run and was incapable of performing military, police or correctional facility work. On examination no ankylosis was found. She had plantar flexion to 35 degrees with dorsiflexion to 20 degrees. Range of motion was not additionally limited on repetitive use. X-rays showed mild tibiotalar joint effusion. There was no evidence of subluxation or instability. The Veteran was afforded another VA examination in March 2007. She reported constant pain and swelling of the right ankle and foot. She also reported the pain could be relieved by rest and prescription medication. She could not run, jump or kick without pain and could not balance on the right foot. She also reported muscle spasms. On examination she had dorsiflexion to 20 degrees, which is normal, and plantar flexion to 45 degrees, which is normal. Motion was limited by pain after repetitive use. X-rays taken were negative for right ankle disability. There was no evidence of effusion, weakness, tenderness, subluxation, or guarding. The Board observes the Veteran submitted a statement with comments based on this examination. In February 2008 she stated that the March 2007 VA examination report was not accurate for her current complaints and range of motion. To the extent that the Veteran disagrees with the March 2007 findings and asserts that her disability has worsened, she was provided an additional VA examination in November 2010. See e.g., September 2012 Board hearing transcript. At the November 2010 VA examination the Veteran reported that her right ankle pain was worse because she had severe aching and cramping with arthritis and swelling that limited which shoes she could wear. She reported pain, stiffness, weakness, and swelling. She was also limited in standing and walking. On examination there was no evidence of giving way or instability. She had full dorsiflexion to 20 degrees and plantar flexion limited to 20 degrees, with no additional loss of motion on repetition. There was no evidence of ankylosis. X-rays showed no osseous, articular, or soft tissue abnormalities. The examiner noted the Veteran had a normal gait and ambulation in the hall to and from the office, but antalgic gait in the office. At her September 2012 Board hearing the Veteran testified she had pain when walking and that she was unable to run or jump. She also testified that her ankle would give out. The Board finds the Veteran's limitation of plantar flexion to 20 degrees is indicative of moderate limitation of motion. The Board has considered 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in her favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding her symptomatology show disability that more nearly approximates that which warrants the assignment of a 10 percent disability rating. See 38 C.F.R. § 4.7. The Board notes that in evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, supra. Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The January 2006 VA examiner specifically noted there was no evidence of weakened movement, excess fatigability, or incoordination. At the March 2007 VA examination the Veteran had no functional loss due to fatigue, weakness, lack of endurance, or incoordination. At her November 2010 VA examination the Veteran had no evidence of incoordination, but she did have weakness and pain. Although there is evidence of some functional loss, this does not rise to the level of that which would warrant a separate or higher evaluation for functional impairment. The Board has considered the applicability of additional diagnostic codes for the Veteran's right ankle disability. However, no higher or separate evaluation is warranted under any of these diagnostic codes. In this regard, there is no evidence of ankylosis of the right ankle or subastragalar or tarsal joint, so Diagnostic Codes 5270 and 5272 are not applicable. There is also no evidence of malunion of os calcis or astragalus and as such, Diagnostic Code 5273 is not applicable. Finally, there is no evidence of astragalectomy, so Diagnostic Code 5274 does not apply. The Board acknowledges the Veteran's statements that her right ankle disability has worsened and an increased disability evaluation is warranted. The Veteran is competent to report matters of which she has personal knowledge, such as pain and limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). However, as a layman, the Veteran is not further competent to provide a probative opinion on a medical matter, especially the severity of her right ankle disability in relation to the applicable rating criteria. The VA compensation examiners conducted objective range of motion testing and reported the Veteran's subjective complaints. The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Overall, the Board concludes that the evidence discussed above supports no more than a 10 percent evaluation. In reaching its decision, the Board considered the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lumbar Spine Disability The Veteran's lumbar spine disability has been evaluated under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under this Diagnostic Code a 10 percent disability rating is awarded for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the lumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the lumbar 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 disability rating is assigned for forward flexion of the lumbar spine to 30 degrees or less; or favorable ankylosis of the entire lumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the lumbar spine is zero to 45 degrees, extension is zero to 45 degrees, and left and right lateral rotation are zero to 45 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 the lumbar spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): 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 Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and lumbar spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. As the Veteran is rated under Diagnostic Code 5237 the Board will also take into account the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A minimum of incapacitating episodes having a total duration of at least one week, but less than 2 weeks during a 12 month period is required for a compensable evaluation. Id. The Veteran is in receipt of a 10 percent evaluation for her lumbar spine disability as of April 26, 2004. The Veteran contends that a higher evaluation is warranted. Having considered the evidence of record, the Board finds that the Veteran is entitled to a 20 percent evaluation, but no higher, as of November 9, 2010. With regard to range of motion testing, at her March 2007 VA examination the Veteran had full flexion and extension limited to 20 degrees. Motion was limited additionally by pain. At her November 2010 VA examination the Veteran had extension limited to 20 degrees and flexion limited to 50 degrees. There was objective evidence of pain on repetitive testing, but no additional loss of range of motion. The examiner did note that the Veteran had full extension during the sitting straight leg raise, where the spine could be flexed to 90 degrees, and that there was a significant discrepancy between flexion on direct examination and sitting straight leg raise. The Board will afford the Veteran the benefit of the doubt when determining the appropriate disability rating. Applying the range of motion measurements to the general ratings formula, the above evidence demonstrates the Veteran is entitled to an evaluation of 20 percent for orthopedic manifestations of her lumbar spine disability as of November 9, 2010, although the examiner did note "significant discrepancies" on range of motion testing. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Prior to November 9, 2010 there is no evidence the Veteran had flexion of the lumbar spine limited to greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the lumbar 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. An evaluation greater than 20 percent as of November 9, 2010 is not warranted as there is no medical evidence of forward flexion of the lumbar spine limited to 15 degrees or less. Id. In addition, there is no objective evidence of ankylosis of the lumbar spine or of the entire spine during this period. Id. There is also no evidence during the appeal period that the Veteran experienced incapacitating episodes lasting at least 2 weeks in the previous year, as would be required for a higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. At her March 2007 VA examination the Veteran reported stiffness in the morning and pain which felt like her back was compressing. She also reported the pain could be relieved by rest and prescription medication. She experienced pain when walking for more than 15 minutes or standing for more than 15 minutes. She was limited in that she could not perform lifting, sitting, bending, sit ups, or pushups. X-rays from March 2007 were unremarkable for disability. In June 2007 the Veteran was noted to be attending physical therapy for her lumbar spine disability. In her February 2008 statement the Veteran disagreed with the March 2007 VA examination report findings. She stated she experienced muscle spasms and had to take prescription medication for pain or inflammation. She also reported that she did in fact have tenderness in her lumbar spine. To the extent that the Veteran disagrees with the March 2007 findings and asserts that her disability has worsened, she was provided an additional VA examination in November 2010. See e.g., September 2012 Board hearing transcript. At the Veteran's most recent VA examination in November 2010 she reported stiffness, weakness, and pain in her lumbar spine. She also reported muscle spasms. There was no evidence of abnormal spinal curvatures. X-rays showed degenerative disc disease changes and findings suggesting bilateral osteitis condensans ilii. At her September 2012 Board hearing the Veteran testified that she had problems performing actions such as twisting due to her back pain. She also testified to using pain medication to help control her symptoms. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in her favor. However, the objective medical evidence and the Veteran's statements regarding her symptomatology show disability that more nearly approximates assignment of a 10 percent rating prior to November 9, 2010 and a 20 percent rating thereafter. See 38 C.F.R. § 4.7. As noted, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, supra. Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. At her March 2007 VA examination the Veteran's function was not limited by fatigue, weakness, lack of endurance, or incoordination. See also November 2010 VA examination report. Although there is evidence of some functional loss due to pain, this does not rise to the level of that which would warrant a separate or higher evaluation for functional impairment. Finally, the Board has considered whether a separate evaluation for a neurological disability is warranted. In reviewing the VA and private treatment records there is no evidence the Veteran complained of, or was diagnosed with, any neurological disabilities for which she is not already compensated. See e.g., March 2007 VA examination report. The Veteran specifically denied neurological difficulties at her November 2010 VA examination. Thus, the Board finds that a separate evaluation for neurological disability is not warranted with respect to the present appeal. The Board acknowledges the Veteran's statements that her lumbar spine disability has worsened and an increased disability evaluation is warranted. As noted, the Veteran is competent to report matters of which she has personal knowledge, such as pain and limitation of motion. See Jandreau, supra; Barr, supra; 38 C.F.R. § 3.159(a)(2). However, the Veteran is not further competent to provide a probative opinion on a medical matter, especially the severity of her lumbar spine disability in relation to the applicable rating criteria. The VA compensation examiner conducted objective range of motion testing and reported the Veteran's subjective complaints. The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. See Madden, supra. In light of the above, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent prior to November 9, 2010 or in excess of 20 percent thereafter. See Fenderson, supra. The Board has considered whether the benefit of the doubt rule applies the Veteran's appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. Extra-Schedular Considerations There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 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 under 38 C.F.R. § 3.321(b)(1). The Veteran's service-connected disabilities are appropriately evaluated. The Board observes that in a February 2005 VA treatment record the Veteran stated that she could not work due to pain in her lower back and ankle. At her physical examination for SSA benefits the Veteran also reported that she was unable to work due to residuals symptoms, including those from her psychiatric condition. At her March 2007 VA examination the examiner noted the Veteran was limited in her job duties as a correctional officer in that she could not bend, squat or exert herself physically. Her primary symptoms are limitation of motion, pain, and degenerative changes. All of her symptoms are accounted for in the regular schedular rating criteria. Furthermore, the March 2007 VA examiner stated that the Veteran was limited in certain duties with her job as a correctional officer, but he did not opine that the Veteran's disabilities prohibited her from any occupation. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected right ankle and lumbar spine disabilities is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting she is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER New and material evidence having been received, the claim for entitlement to service connection for a bilateral knee disorder is reopened; to this extent only the appeal is granted. Entitlement to an evaluation in excess of 10 percent for a right ankle disability is denied. Entitlement to an evaluation in excess of 10 percent prior to November 9, 2010 for a lumbar spine disability is denied. Entitlement to an evaluation of 20 percent, but no higher, for a lumbar spine disability is granted effective November 9, 2010, subject to the applicable regulatory provisions governing payment of monetary awards. REMAND The Veteran's service records indicate that she had multiple periods of active duty service in the Texas National Guard. The only verified period of service is from February 2002 to May 2002, however the Veteran also testified to periods of active duty from October 1997 to December 1997 and two weeks in November 2001. See September 2012 Board hearing transcript. To date, there has not been complete verification of her periods of service so as to determine when she was on active duty, ACDUTRA, and INACDUTRA in the Army National Guard. Further, personnel and treatment records related to these periods of service have not been obtained and associated with her claims file for consideration. See 38 C.F.R. § 3.159(c)(2) and (c)(3). On remand the dates and characterization of service should be verified. The Veteran also contends that she had a psychiatric condition as related to service, or a service-connected disability. The Veteran also testified that her stomach disorder is secondary to the medications she takes for her service-connected disabilities, or in the alternative, that her stomach disorder, migraines and jaw disorder are secondary to her psychiatric condition. Appropriate examinations should be scheduled. The AOJ should also obtain a new opinion, based on the new evidence received, as to the etiology of the Veteran's bilateral knee disorder. The AOJ should also affiliate any additional outstanding service or post service treatment records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the U.S. Army Human Resources Command, War Records Department, National Personnel Records Center, or other appropriate source, and request the following: a. Verification of all periods of active duty, ACDUTRA and INACDUTRA service this Appellant had in the Texas Army National Guard. b. Any outstanding service personnel and service treatment records concerning this service in the Texas Army National Guard. All efforts to obtain these records must be documented and associated with the claims file. VA must attempt to obtain records from a Federal department agency until it is reasonably certain the records do not exist or that any further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). The claimant also must be appropriately notified if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 2. Following completion of the above, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. 3. Ask the Veteran to identify all records of VA and non-VA health care providers who provided treatment for her. a) After obtaining any appropriate authorizations for release of medical information, the AOJ must seek to obtain any potentially relevant records that have not been previously received from each health care provider the Veteran identifies, to include, but not limited to, Wilford Hall Medical Center, Brooke Army Medical Center, and Fort Leonard Wood. b) The AOJ must associate with the claims file all outstanding medical treatment records from any VA treatment facility, to include Audie L. Murphy VA Medical Center and Frank Tejeda VA Outpatient Clinic. c) The Veteran must also be advised that with respect to private medical evidence she may alternatively obtain the records on her own and submit them to the AOJ. 4. After completing the above, schedule the Veteran for a VA psychiatric examination by a psychologist or psychiatrist. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. (a) The examiner must provide an opinion as to whether the Veteran meets the DSM-IV criteria for any current psychiatric disorder, to include major depressive disorder and PTSD. (b) The examiner must provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current psychiatric disorder had its clinical onset during active service. (c) The examiner must also provide an opinion as to whether it is at least as likely as not that any of the Veteran's service-connected disabilities, acting alone or together, i) Caused the Veteran's psychiatric disorder OR ii) Permanently worsened (aggravated) any current psychiatric disorder. The examiner should note that the Veteran is service-connected for a right ankle disability and a lumbar spine disability. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 5. After completing the first three directives, schedule the Veteran for a VA examination to determine the etiology of her claimed stomach disorder, migraines, and jaw disorder. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. (a) The examiner must provide an opinion as to what the Veteran's current diagnoses, if any, are for her stomach disorder, migraines, and jaw disorder. (b) The examiner must provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current stomach disorder, migraines, or jaw disorder had its clinical onset during active service. (c) The examiner must also provide an opinion as to whether it is at least as likely as not that any of the Veteran's service-connected disabilities, acting alone or together, i) Caused the Veteran's stomach disorder, migraines, or jaw disorder OR ii) Permanently worsened (aggravated) any current stomach disorder, migraines or disorder. The examiner should consider the Veteran's claims that her current medications for her service-connected ankle and lumbar spine disabilities upset her stomach. (d) The examiner should also offer an opinion as to whether the Veteran has a stomach disorder, migraines, or a jaw disorder as a result of her claimed psychiatric disorder(s). The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 6. Have an appropriate VA physician provide an opinion to determine the likelihood that the Veteran's bilateral knee disorder is related to service. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner must provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current bilateral knee disorder had its clinical onset during active service. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination. It is the Veteran's responsibility to report for any examination scheduled, and to cooperate in the development of the case; the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 7. Ensure that all of the foregoing development actions have been completed. If any development is incomplete, take corrective action. 38 C.F.R. § 4.2. This includes ensuring the examination reports contain adequate responses to the specific questions asked. 8. Then readjudicate the claims for service connection in light of this and all other additional evidence. If the claims are not granted to the Veteran's satisfaction, send her and her representative a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. 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 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs