Citation Nr: 1334382 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-03 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for chondromalacia of the left knee status-post arthroscopy, evaluated as 10 percent disabling prior to May 25, 2012, and 20 percent disabling since May 25, 2012. 2. Entitlement to service connection for a thoracic spine disability. 3. Entitlement to a total rating for compensation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from June 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2007 and April 2010 rating decisions of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The August 2007 rating decision denied service connection for a thoracic spine disability, and the April 2010 rating decision denied a disability rating in excess of 10 percent for the service-connected left knee disability. The Board notes that the Veteran was granted a disability evaluation of 100 percent after undergoing surgery on the left knee in April 2010. This disability evaluation was effective from April 19, 2010, to May 31, 2010. Therefore, this decision will not affect this time period. In April 2012, the Veteran testified at a Board video conference hearing. A transcript of this hearing is associated with the claims file. In the May 2012 rating decision, the Board remanded the case for additional evidentiary development. Specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for VA examinations to determine the nature and etiology of his thoracic spine disability and to determine the extent and severity of his service-connected left knee disorder. These examinations were conducted in May 2012, and an additional addendum opinion was issued in April 2013, the reports of which have since been obtained and associated with the claims file. Although the Board finds the examination report concerning the Veteran's claim seeking a higher rating for his service-connected left knee disability to be adequate, the Board does not find the May 2012 medical opinion in conjunction with the April 2013 addendum opinion, both of which pertain to his claim for service connection for a thoracic spine disability, to be adequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). After additional evidentiary development had been undertaken, and by way of the November 2012 rating action, the Appeals Management Center (AMC) increased the disability evaluation for the service-connected left knee disability to 20 percent disabling, effective from May 25, 2012. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU is part and parcel of an increased rating when such a claim is raised by a veteran or is otherwise reasonably raised by the record. During the January 2010 and May 2012 examinations, the issue of unemployability was raised. Specifically, the VA examiners noted that the Veteran's left knee disability affected his ability to continue working. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. Another remand with regard to the Veteran's claim seeking service connection for a thoracic spine disability is essential to ensure that the Board remand instructions are complied with and carried out prior to a final adjudication of the claim. As such, the issues of entitlement to service connection for a thoracic spine disability, and whether the Veteran is entitled to a TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. For the period prior to May 25, 2012, the Veteran's chondromalacia of the left knee, status-post arthroscopy, had been manifested by normal extension, limitation of flexion no worse than 45 degrees, even taking into account his complaints of pain; he had not been shown to have any ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, a symptomatic scar, or impairment of the tibia and fibula with moderate left knee disability. 2. From May 25, 2012, the Veteran's chondromalacia of the left knee, status-post arthroscopy, has been manifested by limitation of flexion no worse than 90 degrees, even taking into account his complaints of pain, normal extension and torn cartilage with frequent episodes of pain and effusion into the joint, but not by a symptomatic scar, ankylosis, recurrent subluxation or lateral instability, or impairment of the tibia and fibula with slight right knee disability. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 10 percent for chondromalacia of the left knee, status-post arthroscopy for the period prior to May 25, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5256-5262 (2013). 2. The criteria for a schedular rating in excess of 20 percent for chondromalacia of the left knee, status-post arthroscopy for the period from May 25, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5256-5262 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for benefits, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish the benefit sought and must inform him/her that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Here, the Veteran filed his claim seeking an increased rating for his service-connected left knee disability in December 2009. A letter dated in December 2009 satisfied the duty to notify provisions concerning an increased rating claim. In particular, the correspondence informed the Veteran of the need for evidence of a worsening of his service-connected disabilities. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. This letter also provided the Veteran with notice of how disability ratings and effective dates are determined. The Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the Veteran that, to substantiate a claim, he 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. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The U.S. Court of Appeals for the Federal Circuit reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009). In any event, reviewing the December 2009 correspondence in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a) compliant notice as to his increased rating claim. Accordingly, the Board finds that the procedural requirements of the law pertaining to VA's duty to notify the Veteran have been satisfied. No further due process development of notification of this claim is required. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. The Veteran's service treatment records as well as his post-service VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Pursuant to the May 2012 Board remand, in a May 2012 letter, the AMC asked the Veteran to complete and return the necessary medical release form for any private healthcare provider who treated him for his claimed disorder. It does not appear that the Veteran completed and returned this form. If there is additional available evidence to help substantiate the Veteran's claim, the RO cannot obtain these records without further assistance from the Veteran. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). As the Veteran did not submit an additional VA Form 21-4142 for treatment received from any non-VA healthcare provider and did not otherwise respond to the May 2012 letter, any further efforts to obtain additional records, would be futile. 38 C.F.R. § 3.159(c)(2). The duty to assist also includes obtaining a medical examination/opinion when such is necessary to make a decision on the claim, as defined by law. VA examinations in connection to the service connected left knee disorder were performed in July 2008, January 2010 and May 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the Veteran has alleged that the May 2012 VA examination was not adequate, the Board finds that all three VA examinations obtained in this case are adequate, as they were predicated on a review of the Veteran's medical records, an interview of the Veteran and a discussion of his medical history, and the examinations fully addressed the rating criteria that are relevant to rating the left knee disability at issue. Finally, the Board notes that the Veteran is represented by a veterans service organization (VSO) and that organization is presumed to have knowledge of what is necessary to substantiate a claim for VA benefits. Neither the Veteran, nor his representative, has pled prejudicial error with respect to the content or timing of VCAA notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Factual Background The Veteran was originally granted service connection for his left knee disability in the October 2008 rating decision. A disability evaluation of 10 percent was assigned for the left knee chondromalacia pursuant to Diagnostic Code 5260, effective as of February 5, 2007. In December 2009, VA received a claim from the Veteran seeking a higher disability evaluation. Report of the July 2007 x-ray of the left knee was negative for any indications or signs of a fracture or dislocation and clear for any specific bony abnormalities. However, the x-ray findings did reveal minimal intra-articular calcifications suggestive of pseudogout. The Veteran was afforded a VA examination in July 2008, at which time he provided his medical history and described the details surrounding the circumstances of his in-service injury. When describing his post-service medical history, the Veteran reported to have undergone arthroscopic surgery of the left knee in 1999, and further reported to experience constant throbbing and sharp pain in his left knee that was worse at night and while driving. According to the Veteran, his left knee locks on a frequent basis, becomes swollen occasionally, and gives way with walking. On physical examination, the Veteran walked at a regular pace without the use of an assistive device, and was shown to have flexion to 45 degrees and extension to -10 degrees. The examiner noted that the anterior drawer sign, Lachman, and McMurray's test findings could not be elicited due to the Veteran's fear of pain. The Veteran also underwent a magnetic resonance imaging (MRI) of the left knee, the results of which revealed moderately advanced patellar chondromalacia with prepatellar bursitis. Based on her evaluation of the Veteran, the VA examiner diagnosed chondromalacia patella of the left knee with mild bursitis. Treatment records dated in July 2009 reflect that the Veteran presented at his private physician's office with complaints of ongoing knee pain of several months duration. During one particular treatment visit, the physician took note of the July 2009 MRI report which reportedly showed "a lot of mixoid degeneration of the posterior horn of the medial meniscus"-something the physician interpreted as appearing very suspicious of a meniscal tear. According to the physician, in light of the MRI evidence and symptoms corresponding to a medial meniscal tear, to include tenderness in the posterior joint line, pain with McMurray's maneuver and mechanical-type symptoms, the Veteran should undergo an arthroscopic procedure of the left knee. An August 2009 operation report issued at Sierra Providence East Medical Center reflects that the Veteran did undergo an arthroscopic procedure of the left knee, as well as arthroscopic medial meniscus debridement and lateral meniscal debridement of the left knee. During a September 2009 follow-up treatment visit, the Veteran's physician observed minimal crepitus and tenderness in the left knee, but commented that the left knee "look[ed] good with good range of motion." The Veteran was afforded another VA examination in connection to his service-connected left knee condition in January 2010, at which time, he described a myriad of symptoms, to include pain, weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatigability and lack of endurance in the left knee. According to the Veteran, his symptoms had worsened since the onset of his left knee injury and he currently uses a cane to help him move around. The Veteran denied any episodes of dislocation or subluxation of the left knee, and further denied any periodic flare-ups of joint disease or inflammatory arthritis. On physical examination, the Veteran was shown to have flexion to 85 degrees and extension to 0 degrees, and the left knee displayed normal strength to varus/valgus pressure of the medial and lateral collateral ligaments. Additionally, the anterior and posterior cruciate ligaments were described as normal, and the medial meniscus and lateral meniscus tests produced negative results. According to the examiner, the Veteran exhibited pain, fatigue, weakness, lack of endurance and incoordination following initial range of motion testing, and further exhibited pain, fatigue, weakness, and lack of endurance after final range of motion testing. Although the examiner did not observe additional limitation of motion following repetitive movement, he did observe objective evidence of painful motion, effusion, weakness, tenderness, and abnormal movement of the left knee during repetitive motion of the left knee. The examiner also noted that the Veteran walked with an antalgic gait in the left lower extremity but observed no signs of instability in the left knee joint. When asked whether the Veteran experienced any functional limitations on standing and walking as a result of the left knee disability, the examiner noted that the Veteran could walk less than a block, and could not stand longer than ten minutes as a result of his left knee condition. Based on his discussion with, and evaluation of the Veteran, the VA examiner assessed the Veteran with left knee chondromalacia status post left knee arthroscopic surgery. An April 2010 operative report reflects that the Veteran underwent several additional procedures on the left knee, to include a chondroplasty of patellofemoral articulation, limited debridement of the anterior cruciate ligament, and a partial meniscectomy of the medial meniscus. He was subsequently discharged with postoperative diagnoses of left knee medial meniscal tear, left knee patellofemoral chondromalacia, and partial thickness anterior cruciate ligament tear. Pursuant to the May 2012 Board remand, the Veteran was afforded another VA examination in May 2012, at which time he reported to experience flare-ups of left knee symptoms, which he described as occasional swelling and constant pain, as well as episodes wherein the left knee pops out of place. On physical examination, the Veteran was shown to have flexion to 100 degrees with pain beginning at 90 degrees, and extension to 0 degrees with no objective evidence of painful motion. According to the examiner, the Veteran was capable of performing repetitive motion and his range of motion post testing was 0 to 110 degrees. When asked whether the Veteran had additional limitation of movement and any functional loss or impairment of the knee after repetitive-use testing, the examiner responded that he did, and noted that factors contributing to the Veteran's reduced range of motion and functional loss included less movement than normal, pain on movement, weakened movement and disturbance of locomotion in the left knee during range of motion exercises. The examiner further noted that the Veteran used a cane to help him move around. With respect to the Veteran's level of stability in the left knee, the examiner noted that the Veteran displayed normal strength to valgus/varus pressure in the left knee, and that the Lachman and Posterior drawer tests produced normal results. When asked whether the Veteran had ever had a meniscal condition or undergone a surgical procedure for a meniscal condition, the examiner responded yes, and noted that the Veteran underwent several meniscectomies on his left knee in 2009 and 2010, and his post-operative meniscal symptoms consisted of a meniscal tear in the left knee, as well as frequent episodes of joint pain and effusion. The examiner also commented that the Veteran experienced pain in the left knee with movement and prolonged standing as a result of his previous meniscectomies. In addition, the examiner noted that the Veteran experiences pain as well as a popping sensation in the left knee as a result of his 2009 anterior cruciate ligament (ACL) surgical procedure. Upon reviewing the diagnostic studies, the examiner further commented that degenerative or traumatic arthritis findings were documented in the record, and referenced a September 2002 x-ray of the left knee which reportedly revealed degenerative changes in the left knee, as well as osteophyte formation involving the patella with preservation of the interarticular spaces. III. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under DC 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. Painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under DC 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). DC 5010 states that traumatic arthritis is to be rated as degenerative arthritis under DC 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be DCs 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71(a), DC 5003. Under DC 5256, a 30 percent disability evaluation is assigned for ankylosis of the knee, favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Under DC 5257, a 10 percent disability evaluation is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability evaluation is contemplated when such impairment is moderate. A 30 percent disability evaluation is contemplated when such impairment is severe. Under DC 5258, a 20 percent disability evaluation is assigned for dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees. A 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is warranted when flexion is limited to 15 degrees. Under DC 5261, a noncompensable rating will be assigned for extension of the knee limited to five degrees. A 10 percent disability evaluation is contemplated for extension limited to 10 degrees. A 20 percent disability evaluation is warranted when extension is limited to 15 degrees. A 30 percent disability evaluation is warranted when extension is limited to 20 degrees. Under DC 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating. A 20 percent disability evaluation is warranted for moderate disability, and a 30 percent evaluation is warranted for marked disability. Normal range of motion for the knee is defined as follows: flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. (2013). 1. For the period prior to May 25, 2012 As previously discussed above, the Veteran's left knee disability was evaluated as 10 percent disabling prior to May 25, 2012. The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected left knee disability for the period prior to May 25, 2012. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a disability evaluation in excess of 10 percent for the service-connected left knee disorder for the period prior to May 25, 2012, is not warranted. In this regard, under Diagnostic Code 5260, the Veteran has not been shown to have limitation of flexion to at least 30 degrees to warrant a disability rating higher than 10 percent for this period. Indeed, the Veteran's range of motion has been manifested by limitation of flexion to no worse than 45 degrees. See July 2008 VA examination report. As such, a rating in excess of 10 percent for limitation of flexion of the left knee cannot be granted at any time during the current appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Additionally, the Veteran is not entitled to a separate compensable rating under Diagnostic Code 5261, which governs limitation of extension in the leg. The January 2010 VA examination report reflects the Veteran's limitation of extension in the left knee to be no worse than 0 degrees. Accordingly, a separate compensable rating is not warranted under Diagnostic Code 5261. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. In addition, the Board has considered whether the Veteran is entitled to a compensable evaluation under Diagnostic Code 5257. Although the July 2008 VA examiner was unable to conduct the Lachman, McMurray and anterior drawer sign tests-tests designed to evaluate the Veteran's strength and stability in his lower extremities-the January 2010 VA examiner was able to perform these tests and observed that the Veteran exhibited normal strength upon varus and valgus pressure. In addition, the January 2010 VA examiner observed no abnormalities when evaluating the anterior and posterior cruciate ligaments of the left knee, and added that the McMurray's test produced normal results. Furthermore, the Veteran denied any episodes of dislocation or recurrent subluxation in the left knee at the January 2010 VA examination. As such, a compensable rating for instability of the left knee cannot be granted. The Board has also considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206-07. An additional range of motion loss for pain, excess fatigability, decreased functional ability, etc., is not warranted for the left knee. In this regard, the Board observes that the Veteran has complained of pain, a locking sensation, giving way, heat, swelling, stiffness and weakness in his left knee. See January 2010 VA examination. Although the examiner noted that the Veteran experienced pain, fatigue, weakness, lack of endurance and incoordination following range of motion testing, and further noted objective signs of painful motion, effusion, weakness, tenderness and abnormal movement during range of motion exercises, he noted no objective evidence of additional limitation of movement during and following repetitive movement. In fact, the examiner recorded no additional loss of degree when comparing the initial and final range of motion findings. Thus, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Board finds that the effect of this symptomatology is contemplated in the 10 percent disability evaluations assigned by this decision. Additionally, the Board has also considered whether an increased evaluation would be in order under other relevant diagnostic codes for the knee. 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, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this regard, the Board finds that higher ratings are not warranted under any alternative provisions. Diagnostic Code 5256 provides for a higher rating, however, application of this code is inappropriate as there is no diagnosis of ankylosis of the left knee. Furthermore, the Veteran may not be rated by analogy to this code as he has not suffered functional immobility of the left knee. Likewise, Diagnostic Code 5259 does not provide for higher disability ratings, and is inapplicable. Additionally, there are no objective findings of impairment of the tibia and fibula, thus there is no basis for disability ratings under Diagnostic Code 5262. While the record reflects that the Veteran underwent an arthroscopic medial and lateral meniscal debridement of the left knee in August 2009, Diagnostic Code 5258 is not for application as dislocated or removed cartilage was not indicated. The January 2010 VA examiner did identify a residual scar on the Veteran's left knee as a result of his previous arthroscopic procedures, and in the April 2010 rating decision, the RO granted service connection for the left knee scar, status post left knee arthroscopic surgery, and evaluated this disability as noncompensably disabling. As such, the Board has also considered whether separate compensable ratings are available for any residual scarring. In describing the scar, the examiner noted that the Veteran's scar measured 1 centimeter (cm) in length and one cm in width, and was normal in texture. The examiner also noted no tenderness or adherence to underlying tissue upon evaluation of the scar. A compensable rating under DC 7801, which evaluates impairment for scars other than the head, face, or neck scar requires that the scar be deep and nonlinear and that it exceed 6 sq. inches (39 sq. cm.). The Veteran's scar does not meet that criteria. A compensable rating under DC 7802 for superficial scars requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown. Scars that are unstable or painful warrant a 10 percent rating under DC 7804. A note under DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. The Veteran's scar has not been described as unstable or painful, rendering DC 7804 inapplicable. Lastly, no limitation of function of affected part due to the scar has been shown. So, a compensable rating pursuant to DC 7805 is not warranted. As such, a compensable rating for the Veteran's residual scar on the left knee is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Thus, as the criteria for a disability evaluation in excess of 10 percent for the Veteran's service-connected left knee disorder for the period prior to May 25, 2012, have not been met, this portion of the Veteran's appeal is denied. In essence, the preponderance of the evidence is against a disability evaluation in excess of 10 percent for the Veteran's left knee disorder for the period prior to May 25, 2012. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. As such, entitlement to a disability rating greater than 10 percent for the service-connected chondromalacia of the left knee, status-post arthroscopy, for the period prior to May 25, 2012, must be denied. 2. For the period on and after May 25, 2012 Following receipt of the May 2012 VA examination report, the RO, by way of the November 2012 rating action, increased the disability rating for the service-connected left knee disability to 20 percent, effective May 25, 2012. Although the coding sheet of the rating action reflects that the Veteran's left knee was still rated under Diagnostic Code 5260, the rating decision itself reflects that the RO relied on Diagnostic Code 5258 as the basis for the increased rating. Specifically, in the November 2012 decision, the RO took note of May 2012 VA examiner's notation that the Veteran's left knee post-operative meniscal condition consisted of a meniscal tear, frequent episodes of joint pain and joint effusion, as well as pain upon movement and with prolonged standing. Pursuant to these findings, the RO assigned a 20 percent disability rating relying on the diagnostic criteria under Diagnostic Code 5258 (dislocated semilunar cartilage with frequent episodes of pain and effusion into the joint.) Following a review of the relevant evidence, the Board finds that the record does not contain evidence showing that the Veteran is entitled to an evaluation in excess of 20 percent as of May 25, 2012. In this regard, the Board notes that the Veteran has not been shown to have limitation of flexion to 15 degrees or less in the left knee to warrant a disability rating in excess of 20 percent. Indeed, the Veteran's range of motion has been manifested by limitation of flexion to no worse than 90 degrees throughout this period of the appeal. See May 2012 VA examination report. As such, a rating in excess of 20 percent for limitation of flexion of the left knee cannot be granted at any time during the current appeal period. Moreover, a review of the record throughout this period of the appeal is absent any findings indicating extension of the left knee was limited to 10 degrees or more. Accordingly, a compensable rating is not warranted under Diagnostic Codes 5261. See 38 C.F.R. § 4.71a. Diagnostic Codes 5261. Also, from May 25, 2012, instability and subluxation were not shown in the left knee. The May 2012 VA examiner noted there to be no evidence or history of patellar subluxation or dislocation in the left knee, the Lachman and posterior drawer tests were both shown to be normal, and the Veteran displayed normal strength to valgus and varus pressure. Moreover, the Veteran denied any episodes of locking or instability in the left knee, and there were no objective findings during this time frame indicative of instability or subluxation in the left knee. Results from muscle strength testing were shown to be 5/5 (normal) during left knee extension and 4/5 (active movement against some resistance) during left knee flexion, and x-ray reports were clear for any findings of patellar subluxation. As such, a separate compensable rating under Diagnostic Code 5257 is not warranted. The Board has once again considered whether a compensable rating is available for any residual scarring. In describing the scar, however, the examiner noted that the Veteran's scar was neither painful, unstable nor greater than 39 square (sq.) cm in length. As previously discussed above, a compensable rating under DC 7801, requires that the scar be deep, nonlinear and exceed 6 sq. inches (39 sq. cm.). The Veteran's scar does not meet that criteria. A compensable rating under DC 7802 for superficial scars requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown. The Veteran's scar has not been described as unstable or painful, rendering DC 7804 inapplicable. Lastly, no limitation of function of affected part due to the scar has been shown. So, a rating pursuant to DC 7805 is not warranted. As such, separate compensable ratings for the Veteran's residual scar on the left knee are not warranted for the period on and after May 25, 2012. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The Board has also considered a 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; DeLuca v. Brown, 8 Vet. App. at 206-7. An additional range of motion loss for pain, excess fatigability, decreased functional ability, etc. is not warranted for the left knee. In this regard, the Board observes that the Veteran has complained of pain, swelling and a popping sensation, in his left knee. The May 2012 VA examiner also noted that the Veteran experiences functional loss and impairment in the left knee with repetitive movement due to pain, weakened movement, and disturbance of locomotion. Although the May 2012 VA examiner noted that the Veteran's range of motion was reduced following repetitive motion, it was noted that the Veteran had flexion to 110 degrees post range of motion testing. Further, the Veteran's range of motion was shown to be no worse than flexion to 90 degrees at the May 2012 VA examination. Thus, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation and the effect of this symptomatology is contemplated in the currently assigned 20 percent disability evaluation. Therefore, the Board finds that the preponderance of the evidence is against an increased evaluation for the Veteran's service-connected left knee chondromalacia. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5262, (2009). The Board also finds that higher ratings are not warranted under any alternative provisions. Diagnostic Code 5256 provides for a higher rating, however, application of this code is inappropriate as there is no diagnosis of ankylosis of the knees. Furthermore, the Veteran may not be rated by analogy to this code as he has not suffered functional immobility of the left knee. Likewise, Diagnostic Code 5259 does not provide for higher disability ratings, and is inapplicable. Additionally, there are no objective findings of impairment of the tibia and fibula, thus there is no basis for disability ratings under Diagnostic Code 5262. As previously noted above, the RO assigned a 20 percent disability rating for the left knee based on the Veteran's meniscal condition, to include his meniscal tear and associated symptoms of joint pain and effusion in the left knee, as well as his post-meniscectomy residuals, to include pain with movement and prolonged standing. In essence, the Veteran was granted a higher rating by analogy under Diagnostic Code 5258, and a rating in excess of 20 percent is not provided under this code. In VAOPGCPREC 9-98, the General Counsel noted that limitation of motion was a relevant consideration under Diagnostic Code 5259 for the symptomatic removal of cartilage because removal of cartilage may result in complications producing loss of motion. See VAOGCPREC 9-98 (Aug. 14, 1998). The Veteran's post meniscectomy residuals resulted in limited movement of the left knee, and Diagnostic Code 5258 contemplates manifestations of limited motion, including pain and effusion due to a dislocated cartilage. Because the Veteran has already been rated for limitation of motion under Diagnostic Code 5260, assigning a separate compensable rating under Diagnostic Code 5258 would result in pyramiding. The Board has considered the testimony and assertions by the Veteran pertaining to his left knee. He is competent to attest to the exhibited symptoms in his left knee. The objective evidence of record, however, is more probative and persuasive than the descriptions of his symptoms. The Veteran's assertions in this regard are not credible. The objective findings do not support a higher rating based on the schedular criteria. The Veteran's symptoms do not more nearly approximate the criteria for the assignment of higher ratings in any regard. Therefore, to the extent that a disability evaluation in excess of 20 percent for the Veteran's service-connected left knee disability is warranted on and after May 25, 2012, the appeal is denied. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b)(1) (2013); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA 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 extraschedular rating. Here, the evidence of record does not reflect that the Veteran's left knee disability is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for this disability contemplate his symptoms, including pain and restricted movement, and there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. As such, the threshold issue under Thun is not met, and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the service-connected left knee disability does not present such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). Referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. ORDER Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee, status post arthroscopy, for the period prior to May 25, 2012, is denied. Entitlement to a disability rating in excess of 20 percent for chondromalacia of the left knee, status post arthroscopy, for the period on and after May 25, 2012, is denied. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). If the VA undertakes the effort to provide a veteran with a medical examination, it must ensure that such examination is an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thoracic Spine Disability In the May 2012 Board remand, the Board took note of the July 2008 VA medical opinion wherein the VA examiner, reviewed the Veteran's service and post-service treatment records, and noted that the Veteran suffered a fall post-service in 1999. Upon reviewing the March 2007 x-ray report, the July 2008 VA examiner noted that the diagnostic evidence revealed findings of a compression fracture in the thoracic spine. After evaluating the Veteran and reviewing the radiological evidence, the VA examiner assessed the Veteran with a compression fracture of the thoracic spine. According to the VA examiner, if the Veteran had a compression fracture in the thoracic spine prior to his post-service fall, this would have prevented him from working in the construction industry, yet he had worked in this field until 1999. However, results from the March 2007 x-ray also revealed findings of mild to moderate degenerative disk changes throughout the thoracic spine, and the July 2008 VA examiner did not address the etiology of this disorder nor did he discuss whether the Veteran's degenerative disc disease was related to his military service. As such, the Veteran was scheduled for another VA examination in May 2012, at which time, the VA examiner reviewed the claims file in detail and specifically took note of the March 2007 diagnostic report. Based on her discussion with, as well as her evaluation of, the Veteran, the VA examiner diagnosed the Veteran with a compression fracture at the T8 disk level and degenerative disc disease. According to the examiner, the Veteran's claimed disorder was less likely than not incurred in or caused by the claimed in-service injury. The examiner based her opinion on the rationale that the service treatment records were negative for any "documentation of symptoms, diagnosis or treatment for a thoracic spine condition," and a compression fracture of this severity should have warranted a few medical sick calls or consultations in service. The examiner further stated that the service treatment records were clear for any documentation of a compression fracture of the thoracic spine. In the November 2012 Deferred Rating Decision, the RO determined that the May 2012 VA medical opinion was not based on an accurate assessment of the records, as the comment that there was no documentation of an in-service injury was incorrect. The Veteran's claims file was sent to the same VA examiner for another medical opinion. In the April 2013 medical addendum, the VA examiner reviewed and provided a recitation of the Veteran's service treatment records. The examiner specifically noted that the Veteran presented at the military clinic in February 1974 with complaints of mid thoracic pain of two months duration, and that the physical examination results and x-ray findings were negative for any abnormalities in the thoracic spine. The examiner further noted that the clinical evaluation of the Veteran's spine was normal at the May 1974 report of medical examination pursuant to his separation from service. In addition, the examiner referenced a July 1977 medical statement signed by the Veteran, wherein he attested to the fact that he was physically qualified for military service at the time of his last physical examination in May 1974. Based on these records, as well as the post-service treatment records which reflected that the Veteran suffered a fall many years service, the examiner determined that the Veteran's present thoracic spine condition was not causally related to his thoracic spine pain in service. The Board does not find this medical opinion to be complete for several reasons. First, the Board notes that the May 2012 and April 2013 VA medical opinions fail to address the etiology of the Veteran's degenerative disc disease. Although the VA examiner diagnosed the Veteran with both a compression fracture of the thoracic spine and degenerative disc disease, she only focused on the etiology of his compression fracture of the thoracic spine, and did not address the etiology of his degenerative disc disease of the thoracic spine, pursuant to the May 2012 Board remand directives. In addition, although the VA examiner determined that the Veteran's compression fracture of the thoracic spine was not related to service and relied on the negative service treatment records as the basis for her opinion, she failed to address the Veteran's ongoing complaints of, and treatment for back pain since his separation from service. During the April 2012 hearing, the Veteran testified that he has experienced back pain since service, and he began seeking medical treatment for his back condition very soon after his separation from service. See April 2012 Hearing Transcript, pp. 9-13. Indeed, the Veteran submitted a copy of a 1980 clinical treatment report from the Sepulveda VA Medical Center (VAMC) in California, which indicated a complaint of backache within six years of service separation. This treatment report shows complaints of back pain prior to the 1999 post-service accident. Thus, the May 2012 and April 2013 VA opinions are of little probative value because they are not predicated on a thorough review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (which stipulates that it is what an examiner learns from the claims file for use in forming the expert opinion that matters. When the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment.) As it remains unclear whether the Veteran's thoracic spine disability was incurred in service, another remand is necessary for a clarifying VA medical opinion. TDIU Initially, the Board notes that awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a) (2013). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60% or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40% or more, and sufficient additional disability to bring the combined rating to 70% or more. See also 38 C.F.R. §§ 3.340, 3.341 (2013). In addition to his service-connected left knee disability, the Board notes that the Veteran is also currently service-connected for traumatic synovitis of the right hand and thumb, which is evaluated as 30 percent disabling; and a left knee scar, status post left knee arthroscopic surgery, which is evaluated as noncompensably disabling. The current combined evaluation for the Veteran's service-connected disabilities is 40 percent. See 38 C.F.R. § 4.25 (2013). Thus, the Veteran does not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). Nonetheless, entitlement to the benefit on an extraschedular basis may be considered by the Director of the Compensation and Pension Service when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. In the present case, the Veteran's employment status since his post-service 1999 injury is unclear. In the July 2008 VA examination report, it was noted that the Veteran used to work in the construction field, but had not worked on a full-time basis since his 1999 work-related accident. The evidence of record addressing the issue of the Veteran's employability is found in the January 2010 and May 2012 VA examination reports. At the January 2010 VA examination, the VA examiner noted that the Veteran's left knee disability resulted in a "marked inability to perform his ADL's [activities of daily living) or employment due to very limited range of motion of the left knee." At the May 2012 VA examination, the VA examiner noted that the Veteran's left knee disability slowed him down and thereby impacted his ability to work. Considering the more recent medical evidence of record documenting a worsening in the Veteran's left knee disability, the Board finds that the Veteran's service connected disabilities may have precluded him from securing and following a substantially gainful occupation. However, the Board cannot grant such benefits in the first instance. As the analysis and findings above reflect, the Board has no authority to assign a TDIU rating under 4.16(b) where a claimant does not meet the schedular requirements of 4.16(a), without first referring the case to the Director, Compensation and Pension Service. See Barringer v. Peake, 22 Vet. App. 242, 244 (2008) (the Board may not assign an extraschedular rating in the first instance). The code clearly provides that a claim for extraschedular consideration under 38 C.F.R. § 4.16(b) must be determined by the Director, Compensation and Pension Service. Bowling v. Principi, 15 Vet. App. 1 (2001). As such, further evidentiary development is necessary before appellate review may proceed on the Veteran's claim of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an appropriate VCAA letter as to what is needed to substantiate a claim for entitlement to a TDIU, and undertake any development necessary before adjudication. 2. Then, refer the claims file to the same VA examiner who conducted the May 2012 examination of the left knee and provided the April 2013 medical opinion, or a VA orthopedist if that examiner is unavailable. The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination. A notation that this review has taken place should be made in the evaluation report. The examiner should specifically take note of the May 2012 and April 2013 VA medical opinions. Following a review of the record, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's degenerative disc disease as well as his compression fracture of the thoracic spine had their clinical onset in service or are otherwise related to the Veteran's military service, to include his in-service treatment for back pain. The examiner should address the etiology of both these disorders when rendering his or her medical opinions. In answering these questions, the examiner should also address the Veteran's competent assertions that he has experienced back pain since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that either or both of the Veteran's disabilities are not related to his service, then he or she must provide a medical rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Then, the RO should determine whether referral of the TDIU issue to the Director, Compensation and Pension Service is appropriate and if it is, submit the claim for a TDIU under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. The RO should follow the dictates of section 4.16(b) in making this submission. 4. After conducting any additional development deemed necessary, readjudicate the claim for service connection for a thoracic spine disability and adjudicate the claim for entitlement to a TDIU. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs