Citation Nr: 1335216 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-21 692A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a stomach disability. 2. Entitlement to an increased rating for thoracolumbar strain with degenerative joint and disc disease, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for right knee retropatellar pain syndrome with degenerative joint disease, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for left knee retropatellar pain syndrome with degenerative joint disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from October 1973 to September 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal of June 2007 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In October 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a video conference hearing. A transcript of that hearing is of record. At that time, the Veteran withdrew from appellate consideration claims of service connection for a right shoulder disability, a left shoulder disability, a right arm disability, and a right hand disability. By way of history with respect to the Veteran's appeal, in January 2013, the Board granted the Veteran's claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU), and denied a claim of service connection for an acquired psychiatric disorder. In May 2013, the Board denied the Veteran's claim for service connection for arthritis of the toes and feet, denied entitlement to ratings greater than 30 percent for residuals of cold injury to the right foot and to the left foot, and awarded separate 10 percent ratings for common peroneal nerve damage of the right lower extremity (ankle/foot) and of the left lower extremity (ankle/foot) associated with the cold injury residuals. The Board otherwise remanded the remaining claims, as reflected on the title page, for additional development. (The issue of whether new and material evidence has been received to reopen a claim for service connection for a stomach disorder is addressed in the remand that follows the decision below.) FINDINGS OF FACT 1. Since March 1, 2013, the orthopedic manifestations of the Veteran's service-connected thoracolumbar strain with degenerative joint and disc disease are reflective of objective findings of 40 degrees of forward flexion with subjective complaints of pain and functional loss that equate to forward flexion of 20 degrees; ankylosis of the thoracolumbar spine has not been shown. 2. Prior to March 1, 2013, the orthopedic manifestations of the Veteran's service-connected thoracolumbar strain with degenerative joint and disc disease were manifested by painful motion, acute exacerbations, and limitation of forward flexion not less than 60 degrees; forward flexion of the thoracolumbar spine 30 degrees or less or ankylosis of the thoracolumbar spine has not been shown. 3. Since November 9, 2010, the neurologic manifestations of the Veteran's service-connected thoracolumbar strain with degenerative joint and disc disease are reflective of mild sciatic nerve impairment of the right lower extremity. 4. Since March 1, 2013, the Veteran's right knee retropatellar pain syndrome with degenerative joint disease is manifested by objective findings of 120 degrees flexion and 0 degrees extension with subjective complaints of pain and functional loss that equate to flexion limited to 100 degrees and to extension limited to 20 degrees; ankylosis, instability and/or laxity of the right knee has not been shown. 5. Prior to March 1, 2013, the Veteran's right knee retropatellar pain syndrome with degenerative joint disease was manifested by objective findings of flexion limited to no less than 110 degrees and extension to 0 degrees; ankylosis, instability and/or laxity of the right knee has not been shown. 6. Since March 1, 2013, the Veteran's left knee retropatellar pain syndrome with degenerative joint disease is manifested by objective findings of 120 degrees flexion and 0 degrees extension with subjective complaints of pain and functional loss that equate to limitation of flexion to 100 degrees and limitation of extension of 20 degrees; ankylosis, instability and/or laxity of the left knee has not been shown. 7. Prior to March 1, 2013, the Veteran's left knee retropatellar pain syndrome with degenerative joint disease was manifested by objective findings of flexion limited to no less than 110 degrees and extension to 0 degrees; ankylosis, instability and/or laxity of the left knee has not been shown. CONCLUSIONS OF LAW 1. Since March 1, 2013, the criteria for a disability rating to 40 percent for service-connected thoracolumbar strain with degenerative joint and disc disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2013). 2. Prior to March 1, 2013, the criteria for a disability rating greater than 20 percent for service-connected thoracolumbar strain with degenerative joint and disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2013). 3. Since November 9, 2010, the criteria for a separate 10 percent disability rating for radiculopathy of the right lower extremity, as a neurologic manifestation of service-connected thoracolumbar strain with degenerative joint and disc disease, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2013). 4. Since March 1, 2013, the criteria for a disability rating to 30 percent for service-connected right knee retropatellar pain syndrome with degenerative joint disease, based on limitation of extension, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2013). 5. Prior to March 1, 2013, the criteria for a disability rating greater than 10 percent for service-connected right knee retropatellar pain syndrome with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2013). 6. Since March 1, 2013, the criteria for a disability rating to 30 percent for service-connected left knee retropatellar pain syndrome with degenerative joint disease, based on limitation of extension, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2013). 7. Prior to March 1, 2013, the criteria for a disability rating greater than 10 percent for service-connected left knee retropatellar pain syndrome with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In an August 2006 letter, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claims for higher ratings for his service-connected disabilities of the thoracolumbar spine and the knees. The Veteran was also notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the August 2006 letter, the Veteran was also informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Therefore, the AOJ has satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Furthermore, VA has done everything reasonably possible to assist the Veteran with respect to his claims in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c). The Veteran's VA treatment records are associated with the claims folders as are his Social Security Administrative (SSA) records, as are all adequately identified and available private medical records. The Veteran has also been provided VA examinations to evaluate his disabilities. The reports of those examinations, to include disability benefits questionnaires (DBQ), are associated with the claims folders and considered adequate for the purpose of evaluating the Veteran's disabilities of the thoracolumbar spine and the knees. The Veteran and his representative have submitted written arguments which have been reviewed. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims for higher ratings for disabilities of the thoracolumbar spine and the knees. Hence, no further notice or assistance is required. II. Analysis By way of history, in an October 2005 rating decision, the Veteran was granted service connection and assigned a 20 percent disability rating for thoracolumbar strain. He was also granted service connection and assigned separate 10 percent evaluations for right knee retropatellar pain syndrome as well as left knee retropatellar pain syndrome. The awards for the disabilities of the thoracolumbar spine and the knees were made effective September 23, 2002. The Veteran did not appeal the RO's decision but later filed an increased rating claim for the disabilities, which was received by the RO on July 19, 2006. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are 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 of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 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 (1991). Also, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods for which the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App 505, 509 (2008). Furthermore, in a staged rating context the provisions of 38 C.F.R. § 3.105(e) (requiring a proposed reduction and 60 days predetermination notice) are not applicable. See O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). Also, when determining the effective date for disability compensation, the regulations allow for an effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within that one-year period. See 38 C.F.R. § 3.400(o)(2) (2013). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Thoracolumbar Spine Disability The General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5235-5242. Following the rating criteria, Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides: (See also Plate V.)--For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion is 340 degrees for the cervical spine and 240 degrees for the thoracolumbar spine. 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) provides: 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) provides: Round each range of motion measurement to the nearest five degrees. Note (5) provides: For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical 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) provides: Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. A veteran's spine disability can also be evaluated, if warranted, under the intervertebral disc syndrome formula of Diagnostic Code 5243. Under Diagnostic Code 5243, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a , Diagnostic Code 5243. Following the rating criteria under Diagnostic Code 5243, Note (1) provides: for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides: if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Veteran is entitled to evaluation under whichever formula results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. With respect to the Veteran's thoracolumbar strain with degenerative joint and disc disease, the Veteran is currently in receipt of a 20 percent evaluation. Thus, to warrant a higher rating, the evidence must demonstrate, under the general rating formula, forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A review of the March 1, 2013 VA spine DBQ reflects the examiner's report that range-of-motion testing of the thoracolumbar spine revealed 40 degrees of forward flexion with extension of 5 degrees. The examiner noted the Veteran's reported history of chronic pain, stiffness, and muscle spasm of the thoracolumbar spine. He also noted the Veteran's reported history that during flare ups of low back pain, forward flexion was limited to 20 degrees. In May 2013, the Board remanded the Veteran's claim and requested that the examiner specifically equate all functional losses caused by the Veteran's thoracolumbar spine disability due to pain, weakness, fatigability, and/or flare ups, to additional degrees of motion lost beyond what was shown clinically. In a June 2013 addendum, the examiner noted that he had reviewed a February 1, 2012 VA spine DBQ and the March 1, 2013 VA spine DBQ. Otherwise, in particular, the examiner commented, Post repeat L-spine [range of motion] noted and difference in [range of motion] can be calculated regarding history given by Veteran. I have no additional information to add. Here, while the examiner's comment/opinion is not a model of clarity, it is reasonable to construe the comment/opinion as identifying that additional degrees of motion lost during flare ups are that as reported by the Veteran. Absent evidence to the contrary, the Board accepts the examiner's comment/opinion. See e.g., Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (it is not permissible for VA to undertake additional development if the purpose of that development is to obtain evidence against an appellant's case.) Therefore, in light of the examiner's opinion and resolving reasonable doubt in the Veteran's favor, the Board finds that since March 1, 2013, the date of a VA spine DBQ, a rating to 40 percent for thoracolumbar strain with degenerative joint and disc disease, based on objective findings of 40 degrees of forward flexion with subjective complaints of pain and functional loss which equate to forward flexion of 20 degrees, is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. Otherwise, the March 1, 2013 VA spine DBQ does not reflect clinical findings of favorable or unfavorable ankylosis. As such, a rating to 50 percent or 100 percent since March 1, 2013 for thoracolumbar strain with degenerative joint and disc disease is not warranted. The Board has also considered the appeal period prior to March 1, 2013 and whether or not a rating higher than 20 percent would be warranted. See Hart, supra. It finds that at no time during the appeal period prior to March 1, 2013 have the criteria for a 40 percent evaluation been met. During this period, the Veteran has been noted to consistently complain of painful low back motion. Private medical evidence reflects acute exacerbations of low back pain and the Veteran's treatment with ameliorative steroid epidural injections. Diagnostic studies reflect degenerative changes of the lumbar spine with moderate canal stenosis and bilateral foraminal stenosis along with evidence of disc bulging. The Board, in particular, has reviewed the reports of August 2006, November 2009, and February 2012 VA examinations/DBQs. Forward flexion of the thoracolumbar spine was limited to no less than 60 degrees during the examinations. The other medical evidence of record does not reflect specific range of motion findings concerning the thoracolumbar spine. Also of note, a VA clinician in April 2006 noted that the Veteran's subjective complaints were not consistent with the objective clinical findings. In April 2008, a VA medicine rehabilitative consult note reflected the Veteran's trunk area range of motion was mildly limited, and the clinician noted that the Veteran demonstrated an exaggerated response to minimal palpation or passive range of motion. The VA examiner in November 2009 identified the Veteran's pain during range-of-motion testing of the thoracolumbar spine as being mild. In this case, the Board finds persuasive that none of the medical evidence during the appeal period prior to March 1, 2013, identifies flexion of the Veteran's thoracolumbar spine as being 30 degrees or less or otherwise ankylosed. Furthermore, the Veteran's subjective complaints regarding the severity of his symptoms was called into question by VA clinicians. Thus, the Board finds that prior to March 1, 2013, the medical evidence simply does not demonstrate limitation of flexion of the thoracolumbar spine as being 30 degrees or less, or to be ankylosed. Thus, a rating to 40 percent, or higher, prior to March 1, 2013 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. The Board has also considered the Veteran's claim based on arthritis of the thoracolumbar spine under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In this case, the Veteran's thoracolumbar spine disability is manifested by limitation of motion and is evaluated for such under Diagnostic Code 5242 for degenerative arthritis of the thoracolumbar spine. With respect to a higher evaluation for the Veteran's disability of the thoracolumbar spine during the appeal period based on intervertebral disc syndrome (IVDS), in the February 2012 VA spine DBQ, the examiner commented that the Veteran did have IVDS but that he did not suffer from any incapacitating episodes. None of the other medical evidence associated with the appeal period identifies the Veteran as having IVDS. Nonetheless, assuming any IVDS associated with degenerative disc disease, incapacitating episodes (requiring bed rest prescribed by a physician and treatment by a physician) associated with IVDS have not been shown. Therefore, a rating higher than 20 percent prior to March 1, 2013 and/or a rating higher than 40 percent since March 1, 2013, based on IVDS, is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. With regard to any associated neurologic impairment, the VA examiner in March 2013 identified the Veteran as having sciatic nerve impairment secondary to his thoracolumbar spine disability. He described the impairment as mild and that symptoms were pain, paresthesia, and numbness. The finding was not based on diagnostic testing, although the VA DBQ notes that a diagnosis of radiculopathy can be made based on subjective complaints and objective clinical findings. A review of the medical evidence during the appeal period, reflects diagnoses both for and against radiculopathy. Of note, in the report of August 2006 VA examination, radiculopathy was not diagnosed. A July 2008 VA treatment note reflected a positive straight leg raising (SLR) test with radicular symptoms from 30 degrees to 60 degrees. An associated electromyography (EMG) undertaken that same month, July 2008, noted that there were no findings consistent with lumbar radiculopathy. In the report of November 2009 VA examination, the examiner did not identify radiculopathy and noted that any lower extremity symptoms were not secondary to the Veteran's thoracolumbar spine disability. Following the November 2009 VA examination, a private magnetic resonance imaging (MRI) study of the lumbar spine dated September 24, 2010, and received by the AOJ on November 9, 2010, identified disc space narrowing and degenerative changes. It was also noted that there was moderate canal stenosis and moderate bilateral neural foraminal stenosis at both L1-L2 and L4-L5. Thereafter, a January 2011 private treatment record notes a diagnosis of lumbar radiculopathy. While the VA examiner in February 2012 did not find evidence of radiculopathy, as noted above, the examiner in March 2013 did diagnose radiculopathy associated with the right lower extremity. A VA treatment note, dated in April 2013, notes the Veteran's complaints of sciatic right leg pain. Here, the Board finds reasonable doubt that the private September 24, 2010 MRI study, received by the RO on November 9, 2010, supports a finding of radiculopathy. The Board finds persuasive that the MRI study identified moderate neural foraminal stenosis. The MRI study in combination with the subsequent diagnoses by both private and VA clinicians of radiculopathy warrants an award of 10 percent, based on mild incomplete paralysis of the sciatic nerve associated with the right lower extremity, effective from the date of receipt of the private MRI study, November 9, 2010. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board does not otherwise find a rating higher than 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity is warranted. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2013). Also, the term "incomplete paralysis" indicates impairment of function of a degree substantially less than the type of picture for complete paralysis given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. § 4.124a, Note). Here, in light of the clinical findings of pain, paresthesia, and numbness, and the VA examiner's finding of mild symptoms, the Board does not find the Veteran's sciatic nerve impairment more nearly approximates moderate, moderately severe, or severe incomplete paralysis, or otherwise complete paralysis of the sciatic nerve. (In finding a separate 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve of the right lower extremity, the Board is aware that the Veteran is also receiving a 10 percent disability rating for peripheral nerve disease resulting in sensory impairment of the right ankle and foot associated with his service-connected cold injury. The nerve affected in that instance is the common peroneal nerve, which is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8521. In assigning an additional disability rating for impairment of the sciatic nerve, as a neurologic manifestation of the Veteran's service-connected thoracolumbar spine disability, the Board does not find that separate ratings for impairment of different nerves resulting in different symptoms (pain vs. sensory impairment) and affecting different parts of the right lower extremity, is prohibiting by the rule against pyramiding. 38 C.F.R. § 4.14 (2013).) For all the foregoing reasons, the Board finds that since March 1, 2013, a disability rating to 40 percent for the orthopedic manifestations of service-connected thoracolumbar strain with degenerative joint and disc disease is warranted. Also, at no time during the appeal period prior to March 1, 2013, does the evidence support a rating higher than 20 percent for service-connected thoracolumbar strain with degenerative joint and disc disease. Hart, supra. Otherwise, since November 9, 2010, a separate 10 percent disability rating for radiculopathy of the right lower extremity, as a neurologic manifestation of service-connected thoracolumbar strain with degenerative joint and disc disease, is warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for any higher ratings than those assigned, that doctrine is not helpful beyond what is already awarded herein. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Knee Disability The Veteran's complaints regarding his knees are of weakness and giving way, as well as flare ups of pain with prolonged walking, standing, and heavy lifting. The Veteran's right knee and left knee patellofemoral syndrome with degenerative joint disease are each rated as 10 percent disabling under Diagnostic Code 5010 for traumatic arthritis. Traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion of the knee, in particular, is found under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a 10 percent rating is warranted if flexion is limited to 45 degrees; a 20 percent rating is warranted if flexion is limited to 30 degrees; and a 30 percent rating is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is warranted if extension is limited to 10 degrees; a 20 percent rating is warranted if extension is limited to 15 degrees; a 30 percent rating is warranted if extension is limited to 20 degrees; a 40 percent rating is warranted if extension is limited to 30 degrees; and a 50 percent rating is warranted if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (2013). VA's General Counsel has issued a precedential opinion that provides for the possible assignment of separate disability ratings for limitation of flexion and limitation of extension involving the same knee joint. See VAOPGCPREC 9-2004 (September 17, 2004). In that opinion, the General Counsel said that where a veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. A review of the medical evidence during the appeal period reflects a report of August 2006 VA examination in which clinical findings reflected flexion to 110 degrees (pain at 95 degrees) and extension to 0 degrees. There was no laxity of the knees on stress testing or change in range of motion of the knees on repetitive motion testing. An X-ray of the knees was normal. An X-ray of the knees in January 2008 revealed minimal joint space narrowing. An April 2008 VA medicine rehabilitation consult note identified mild crepitus of the knees. A December 2008 record associated with the Veteran's claim for SSA benefits noted that the Veteran was observed walking into an interview area with assistance of a cane, but that he walked very well and did not exhibit signs of a limp or other impediment of gait. In a report of November 2009 VA examination, clinical findings reflected flexion of the knees to 130 degrees and extension to 0 degrees. Instability of the knees was not found but there was a positive grind test. The examiner commented that the Veteran's pain associated with his knees was mild. On private examination in August 2010, the Veteran's knees were reported by the clinician as appearing normal without significant valgus or varus stress. There was no warmth or effusion, but a finding of mild tenderness in the lower popliteal spaces bilaterally. Range of motion was noted as being functionally full without evidence of instability. A patellar grind test was positive. An X-ray of the knees revealed chondromalacia patellae bilaterally. The clinician commented that the Veteran's "knee-flexed gait" contributed to his symptoms. A September 2010 private bone scan study revealed peripheral degenerative changes best seen in the shoulders and the left knee. On private examination in November 2010, the Veteran was noted to complain of slight right knee pain with range of motion. In a November 2010 private magnetic resonance imaging (MRI) study of the right knee, findings were noted as mild degenerative changes, minimal joint effusion, and chondromalacia along the medial and lateral joint compartments. In a February 2012 VA DBQ, flexion of the knees was to 140 degrees and extension to 0 degrees. Pain was reported as occurring at 0 degrees. No change in range of motion resulted from repetitive motion testing. The examiner also commented that there was knee joint line tenderness but otherwise no evidence of laxity or instability. In a private July 2012 examination, the clinician commented that the Veteran had good range of motion of his knees and that an X-ray reflected early arthritis. In a March 1, 2013 VA knees DBQ, the Veteran reported limited ability to walk or stand due to knee pain. He reported having received steroid injections into his knees to relieve pain. On clinical testing, bilaterally, flexion was to 120 degrees and extension was to 0 degrees. There was no change in range of motion with repetitive motion testing, nor was there a finding of laxity or instability. The examiner also noted the Veteran's self-reported history that during flare ups of knee pain, flexion was limited to 100 degrees and extension limited to 20 degrees. In May 2013, the Board remanded the Veteran's bilateral knee claim and requested that the examiner specifically equate all functional losses caused by the Veteran's bilateral knee disability due to pain, weakness, fatigability, and/or flare ups, to additional degrees of motion lost beyond what was shown clinically. In a June 2013 addendum opinion, the examiner noted that he had reviewed the March 1, 2013 VA DBQ. The examiner commented: Post repeat exam of knees noted. Difference in [range of motion] can be calculated from history given by Veteran. No additional information to add. Here, while the examiner's comment/opinion is not clear (as was the case with the opinion with regard to the thoracolumbar spine), it is reasonable to construe the comment/opinion as concluding that additional degrees of motion lost during flare ups are what was reported by the Veteran. Absent evidence to the contrary, the Board accepts the examiner's comment/opinion. See Mariano, supra. Therefore, in light of the examiner's opinion and resolving reasonable doubt in the Veteran's favor, the Board finds that since March 1, 2013, the date of the VA knees DBQ, separate ratings of 30 percent for right knee retropatellar pain syndrome with degenerative joint disease and for left knee retropatellar pain syndrome with degenerative joint disease, are warranted. The awards are based on objective findings of full extension of both knees with subjective complaints of pain and functional loss that equate to limitation of extension, bilaterally, of 20 degrees. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261; DeLuca, 8 Vet. App. at 204-7. Otherwise, the March 1, 2013 VA knees DBQ does not reflect a compensable rating for any limitation of right knee or left knee flexion. As noted above, with pain and additional functional loss, flexion was limited to 100 degrees. (A compensable (10 percent) rating is warranted for flexion that is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.) The Board does not find that a rating higher than 30 percent for either the right knee or left knee since March 1, 2013, is warranted. The medical evidence does not demonstrate the right knee or left knee is ankylosed, or is there evidence demonstrating subluxation or lateral instability of the right or left knee. Therefore, a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5256 for knee ankylosis or a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for recurrent subluxation or lateral instability, is not warranted. Regarding the appeal period prior to March 1, 2013, the Board does not find that the evidence supports a rating higher than 10 percent for either right or left knee retropatellar pain syndrome with degenerative joint disease. As documented in the reporting of the evidence, above, flexion of the knees was limited to no less than 110 degrees and extension was full. While the Veteran was noted as reporting in the February 2012 DBQ that he experienced painful motion at 0 degrees, the severity of that pain was not discussed. Also, while functional loss due to pain was not specifically addressed by any clinician during the period prior to March 1, 2013, the Board finds persuasive that prior to the February 2012 DBQ, knee pain was reported as being only "mild." Furthermore, as noted above, in December 2008 the Veteran was observed to walk very well and did not exhibit signs of a limp or other impediment of gait. Also, at a private August 2010 examination, the clinician noted a full range of motion, and at a July 2012 private examination, which was conducted subsequent to the February 2012 DBQ, the clinician commented that the Veteran had good range of motion of his knees. The medical evidence also does not demonstrate that either knee was ankylosed, or that there was evidence demonstrating subluxation or lateral instability of the right knee or left knee. Therefore, a higher rating under Diagnostic Code 5256 for knee ankylosis or a separate rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability, is not warranted. For all the foregoing reasons, the Board finds that since March 1, 2013, a 30 percent disability rating for each knee, based on limitation of extension, is warranted. Also, at no time during the appeal period prior to March 1, 2013, does the evidence support a rating higher than the previously assigned 10 percent rating for either right knee retropatellar pain syndrome with degenerative joint disease or for left knee retropatellar pain syndrome with degenerative joint disease Hart, supra. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for any ratings higher than those assigned herein, that doctrine is not helpful to the claimant. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Extrashedular Consideration Consideration has also been given to whether the schedular rating is inadequate, requiring that the AOJ refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation. Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008) (there must be a comparison between the level of severity and symptomatology of a claimant's disability and the established criteria found in the rating schedule). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. Also, extra-schedular ratings under 38 C.F.R. § 3.321 are awarded on a disability-by-disability basis for each individual disability being considered and not on the combined effect of all of a claimant's service-connected disabilities. See Johnson v. Shinseki, 26 Vet. App. 237 (2013). With respect to the Veteran's service-connected thoracolumbar spine and knees, the schedular evaluations in this case are adequate. There is no showing that the Veteran's service-connected thoracolumbar spine (to include neurologic manifestations) or his service-connected knees reflect so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1). As reported in the March 1, 2013 VA DBQs, the Veteran reported low back symptoms of pain, stiffness, and muscle spasms; radicular symptoms of pain, paresthesia, and numbness; as well as knee symptoms of chronic pain, stiffness, and loss of motion. The Board finds that the rating criteria adequately address the Veteran's symptomatology. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. Thun, 22 Vet. App. at 115-16; 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a 40 percent rating for thoracolumbar strain with degenerative joint and disc disease, from March 1, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement a rating of 10 percent for sciatic nerve impairment affecting the right lower extremity, as a neurologic manifestation of service-connected thoracolumbar strain with degenerative joint and disc disease, from November 9, 2010, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a 30 percent rating for right knee retropatellar pain syndrome with degenerative joint disease, based on limitation of extension, from March 1, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 30 percent rating for left knee retropatellar pain syndrome with degenerative joint disease, based on limitation of extension, from March 1, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating greater than 20 percent for thoracolumbar strain with degenerative joint and disc disease, prior to March 1, 2013, is denied. Entitlement to a rating greater than 10 percent for right knee retropatellar pain syndrome with degenerative joint disease, prior to March 1, 2013, is denied. Entitlement to a rating greater than 10 percent for left knee retropatellar pain syndrome with degenerative joint disease, prior to March 1, 2013, is denied. REMAND The Veteran's service treatment records (STRs) reflect that he was treated on one occasion for stomach complaints. Gastritis was to be ruled out. Post-service evidence includes an April 1993 upper gastrointestinal (GI) series that was normal. In a June 2006 VA addendum medical opinion, an examiner opined that the Veteran suffered from gastroesophageal reflux disease (GERD) and that the disorder was not related to the Veteran's period of military service. In January 2007, the Board denied the Veteran's claim for service connection for a stomach disability. Evidence since that time continues to reflect the Veteran's treatment for GERD and general gastric complaints. He has been prescribed by VA the drug Omeprazole (e.g. Prilosec). At his October 2012 Board hearing before the undersigned VLJ, the Veteran reported that he was treated for GI complaints at a VA hospital in Little Rock, Arkansas within the first year of his release from active service in September 1975. In its May 2013 remand, the Board requested that the AOJ contact the Little Rock VA Medical Center (VAMC) and request a search for the identified records. The AOJ was also asked to notify the Veteran, in accordance with 38 C.F.R. § 3.159, if the putative records were not found or were unavailable. Thereafter, in June 2013, the Little Rock VAMC notified the AOJ that the treatment records requested could not be located. A review of the claims folders and Virtual VA does not reflect any notice sent to the Veteran regarding the unavailability of the putative VA treatment records. Furthermore, in the above-noted July 2013 supplemental statement of the case (SSOC), the AOJ's only reference to the VA treatment records was the following, We reviewed treatment records from the VAMC[ ] Little Rock, Arkansas from September 1975 to September 1976. The records show on-going evaluation and treatment for multiple medical conditions. In a July 2013 Written Brief Presentation, the Veteran's representative raised a new theory of entitlement for service connection for a stomach disability. The representative argued that the Veteran's disability was secondary to NSAIDs (nonsteroidal anti-inflammatory drugs) the Veteran was taking for his service-connected disabilities. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim); see also Robinson v. Mansfield, 21 Vet. App. 545 (2008). The Board notes that the AOJ's reference in the SSOC to the sought-after records appears to be a misstatement. Furthermore, as otherwise noted, the Veteran has not been provided any further notice with regard to the unavailability of the identified VA treatment records. As such, on remand, the Veteran should be notified that VA records associated with identified treatment at the VA medical facility in Little Rock, Arkansas from September 1975 to September 1976 are unavailable. 38 C.F.R. § 3.159(e)(1). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folders the Veteran's most recent VA treatment records from the VA Central Arkansas health care system dated since April 1, 2013. 2. Notify the Veteran that VAMC Little Rock medical records associated with his identified treatment at the facility from September 1975 to September 1976 were not located. Notification should be in accordance with 38 C.F.R. § 3.159(e)(1). 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue remaining on appeal-whether new and material evidence has been received to reopen the Veteran's claim for service connection for a stomach disability. If the benefit sought is denied, the Veteran and his representative must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs