Citation Nr: 1337327 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-28 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine, from March 23, 2005 through August 10, 2006. 2. Entitlement to an initial disability rating in excess of 40 percent for orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine, since August 11, 2006. 3. Entitlement to an initial disability rating in excess of 20 percent for chondromalacia patella, right knee (limitation of extension), from March 23, 2005 through March 23, 2009. 4. Entitlement to an initial disability rating in excess of 10 percent for chondromalacia, right knee (painful motion), from March 23, 2005 through March 23, 2009. 5. Entitlement to a disability rating in excess of 40 percent assigned for loss of use of the right foot. 6. Entitlement to service connection for radicular symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine. 7. Entitlement to service connection for absence of right peroneal and left sural sensory responses (claimed as bilateral heel numbness; also claimed as muscle atrophy of the extensor digitum brevis (EDB) muscle bilaterally; also claimed as absence of right sural sensory response). 8. Entitlement to service connection for acid reflux disease. 9. Entitlement to service connection for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and friend ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The appellant served on active duty from May 2004 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the appellant's claims of entitlement to service connection for: degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine [assigning a 20 percent disability rating, effective March 23, 2005]; chondromalacia patella, right knee (limitation of motion) [assigning a 20 percent disability rating, effective March 23, 2005]; and chondromalacia patella, right knee (painful motion) [assigning a 10 percent disability rating, effective March 23, 2005]. The August 2005 rating decision also denied entitlement to service connection for: radicular symptoms of degenerative disc disease, disc bulges, and spondylolisthesis; absence of right peroneal and left sural sensory responses; acid reflux disease; IBS; and gastritis. The appellant testified before a Decision Review Officer in January 2010. In November 2010, the appellant testified before the undersigned Veterans Law Judge during a Travel Board hearing. Transcripts of these proceedings have been associated with the appellant's VA claims file. This case was previously before the Board in June 2011. At that time, the Board noted that, pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the issue of a (TDIU) was before the Board. In the June 2011 decision, the Board denied entitlement to service connection for gastritis and remanded the remaining claims on appeal for additional development. In a September 2012 rating decision, the appeals management center (AMC) granted entitlement to service connection for loss of use of the right lower extremity at a 40 percent rating, effective March 24, 2009 (replacing his separate disability ratings for his right knee), and increased the Veteran's lumbar spine disability to 40 percent as of August 11, 2006. The Veteran has not expressed satisfaction with these higher ratings, thus, these issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In addition, the AMC granted TDIU in its September 2012 rating decision; as such, this issue is no longer on appeal. The issues of entitlement to service connection for radicular symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine, entitlement to service connection for absence of right peroneal and left sural sensory responses (claimed as bilateral heel numbness; also claimed as muscle atrophy of the extensor digitum brevis (EDB) muscle bilaterally; also claimed as absence of right sural sensory response), entitlement to service connection for acid reflux disease, and entitlement to service connection for IBS are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period from March 23, 2005 through August 10, 2006, the Veteran's orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine were not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 2. Beginning August 11, 2006, orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine did not cause unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. 3. For the period from March 23, 2005 through March 23, 2009, the Veteran's chondromalacia patella, right knee (limitation of extension) was not manifested by limitation of extension to 20 degrees. 4. For the period from March 23, 2005 through March 23, 2009, the Veteran's chondromalacia, right knee (painful motion) was not manifested by limitation of flexion to 30 degrees. CONCLUSION OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine, from March 23, 2005 through August 10, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.132, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for an initial disability rating in excess of 40 percent for orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine, since August 11, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.132, 4.71a, Diagnostic Code 5243 (2013). 3. The criteria for an initial disability rating in excess of 20 percent for chondromalacia patella, right knee (limitation of extension), from March 23, 2005 through March 23, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.132, 4.71a, Diagnostic Code 5261 (2013). 4. The criteria for an initial disability rating in excess of 10 percent for chondromalacia, right knee (painful motion), from March 23, 2005 through March 23, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.132, 4.71a, Diagnostic Code 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). This case was remanded in June 2011 in order to obtain any available VA medical records from October 2010 to the present, and to provide the Veteran with VA examinations to determine the current nature and severity of his service-connected back disability. Additional treatment records, showing treatment from April 2010 to the present, have been associated with the Veteran's claims file and the online Virtual VA records system. It appears from language in the most recent supplemental statement of the case that the Veteran did not report to a VA spine examination, but it is unclear when he was scheduled and whether he received proper notice of the upcoming examination. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010) which involved the presumption of regularity in notification of VA examinations.) However, in any event, the evidence reflects that the Veteran is currently service-connected at a 40 percent disability rating, and that a higher disability rating would only be warranted based upon medical evidence of unfavorable ankylosis of the entire thoracolumbar spine. As extensive treatment records are available, and none show evidence that such is the case, the fact that the Veteran did not receive a VA examination is non-prejudicial. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Appellant. The Court has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA provided the Veteran the opportunity to have a hearing. The appellant testified before the undersigned Veterans Law Judge in November 2010. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge explained the evidence necessary to establish the claim for an increased rating, and inquired about outstanding medical evidence and dates of treatment. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) extant at the time of the hearing. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Evaluation of initial ratings - laws and regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be 'staged.' Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). VA regulations instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evaluation of initial disability rating for orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine The Veteran's lumbar spine disability is service-connected under Diagnostic Code 5243, pertaining to intervertebral disc disease (IVDS). IVDS is to be evaluated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2012). The following notes accompany the General Rating Formula: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the 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 of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire 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 dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Note one states that 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Initial disability rating from March 23, 2005 through August 10, 2006 At his August 2005 VA examination, the Veteran was able to flex his lumbar spine to 60 degrees and, with discomfort in the final 5 to 10 degrees, to extend to 20 degrees with great difficulty. Repeated motions of three or four times immediately caused further loss of flexion to 50 degrees and extension to 10 degrees. He complained of pain during these motions, and appeared to be fatigued as shown by the slowness of his movement. Lateral flexion was to 20 degrees to the left and 25 degrees to the right, and with repetitive movement, he lost motion to 15 degrees on both sides. He had 20 degrees of rotation bilaterally, but after repetitive movements, lost 5 degrees due to fatigability and mild discomfort observed during the examination. The impression was grade 1 spondylolisthesis with degenerative disc disease characterized by bulging discs at L1-L5. An August 2005 examination provided by the Arizona Disability Determination Services shows that the Veteran was able to bend over so that his fingertips were at the level of his ankles, and rise to standing again. VA medical records showing treatment from March 2005 to August 2006 reflect ongoing reports of low back pain. The Board finds that, based on the evidence of record, the Veteran's service-connected low back disability did not warrant a higher disability rating for the period of time from March 23, 2005 through August 10, 2006. In order to warrant a higher disability rating, the evidence would need to show that the Veteran's lumbar spine was limited to forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In this case, however, there is no evidence that the Veteran had ankylosis of his spine. Imaging studies conducted in August 2005 and February 2006 did not reveal ankylosis. In addition, his forward flexion was limited, after repetitive movements, only to 50 degrees, even factoring in the effects of pain and fatigue. Deluca, Mitchell. As the Veteran's service-connected lumbar spine disability has been rated under the Diagnostic Code for IVDS, the Board has considered a rating based on the frequency and length of incapacitating episodes; however, there is no evidence of record showing that the Veteran had any periods of bedrest prescribed by a physician due to his service-connected back disability during the period from March 23, 2005 through August 10, 2006. As such, a higher disability rating during this period of time is not warranted. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Initial disability rating since August 11, 2006. In order to warrant a higher disability rating since August 11, 2006, the evidence would need to reflect that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine, or that he had incapacitating episodes with a total duration of at least 6 weeks over the past 12 months. Extensive medical records are part of the claims file reflecting treatment since August 11, 2006. None of this evidence reflects that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine, or that he has had periods of prescribed bedrest by a physician that total over 6 weeks during any 12 month period over the appeals period. As such, a higher disability rating since August 11, 2006 is not warranted. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Evaluation of initial disability ratings for chondromalacia patella, right knee (limitation of extension) and chondromalacia, right knee (painful motion), from March 23, 2005 through March 23, 2009 The Veteran was service-connected for chondromalacia patella, right knee (limitation of extension)under Diagnostic Code 5261 and for chondromalacia, right knee (painful motion) under Diagnostic Code 5260. Diagnostic Code 5260 and 5261 focus on limitation of motion of the knee. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees and a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees and a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not 'duplicative of or overlapping with the symptomatology' of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, separate ratings are allowed under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg for disability of the same joint. VAOPGCPREC 9-04 (Sept. 17, 2004). Initial disability rating from March 23, 2005 through March 23, 2009 The Veteran underwent a VA examination in October 2005. At that time, the Veteran's right knee was slightly swollen, with mild suprapatellar effusion. He had restriction of extension to 10 degrees short of full extension, with a decrease to 15 degrees with repetitive movement. He was able to flex to 80 degrees, which was decreased to 75 upon repetitive movement. The knee was stable by the anterior drawer test. A December 2005 VA medical record shows that the Veteran reported that he had no instability or locking of his right knee. An October 2006 VA medical record shows that the Veteran could nearly fully extend and flex his right knee, but that there was pain with movement. VA medical records show that the Veteran had ongoing treatment for his right knee disability; however, there evidence of record does not include additional range of motion measurements of his right knee. Without evidence to the contrary, the Board will consider the range of motion measurements taken at his October 2005 VA examination to be representative of the state of his service-connected knee disabilities through March 23, 2009. Based on this evidence, the Veteran's right knee disability does not warrant higher ratings for flexion or extension of the right knee. In order to warrant a higher evaluation based on limitation of flexion, the evidence would need to show that the Veteran's flexion was limited to 30 degrees. In this case, flexion of the Veteran's right knee was to 75 degrees after repetitive movement, and there is no evidence that his flexion has been limited more than this. 38 C.F.R. § 4.71a, Diagnostic Code 5260. To warrant a higher rating for limitation of extension, the evidence would need to show that his extension was limited to 20 degrees. The evidence here shows that the Veteran's extension was limited to 15 degrees, with no evidence in the record that the Veteran's extension was limited more than this measurement. 38 C.F.R. § 4.71a, Diagnostic Code 5261. As such, higher ratings based upon limitation of flexion and extension of the right knee are not warranted. The Board has considered rating the Veteran's right knee disability under other Diagnostic Codes in order to provide him with the most beneficial rating. However, the evidence fails to show that the Veteran has ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. As such, ratings under these Diagnostic Code would not be appropriate. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262 or 5263 (2013). As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's lumbar spine and right knee disabilities are contemplated by the rating criteria set out in general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, and under Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a, Diagnostic Codes 5243, 5260, 5261. Thus, the evidence does not support referring this case for an extraschedular evaluation. ORDER An initial disability rating in excess of 20 percent for orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine, from March 23, 2005 through August 10, 2006, is denied. An initial disability rating in excess of 40 percent for orthopedic symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine, since August 11, 2006, is denied. An initial disability rating in excess of 20 percent for chondromalacia patella, right knee (limitation of extension), from March 23, 2005 through March 23, 2009, is denied. An initial disability rating in excess of 10 percent for chondromalacia, right knee (painful motion), from March 23, 2005 through March 23, 2009, is denied. REMAND Radicular symptoms of degenerative disc disease, disc bulges, and spondylolisthesis of the thoracolumbar spine and absence of right peroneal and left sural sensory responses This case was previously remanded in June 2011 for additional development. The instructions included that the Veteran should be provided with VA examinations associated with his claims. It appears from the record that the Veteran was scheduled for at least one examination to which he did not report. The Board finds it unclear as to whether the Veteran was properly notified of the examinations, and that another attempt should be made to schedule him for VA examinations. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010) which involved the presumption of regularity in notification of VA examinations.) The Veteran has claimed that he has radicular symptoms associated with his service-connected lumbar spine disability. VA medical records show the Veteran's ongoing complaints of pain radiating into this lower extremities from his back, along with assessments of peripheral neuropathy. As such, the Veteran should be afforded a VA neurological examination to determine whether he had neurological abnormalities associated with his service-connected spine disability. In addition, as stated in the June 2001 remand, the appellant was provided with a VA examination in August 2005. At that time, the VA examiner noted that, without shoes, the appellant was able to walk with a slightly flattened foot that was not uncomfortable. The appellant was unable to walk on tiptoes or heels. It was noted that he had definite distal weakness of both lower extremities. Upon physical examination, the appellant's patellar and ankle reflexes bilaterally were intact. He complained of numbness in the L5-S1 dermatome on the left and some numbness medially. Sensation to monofilament and vibratory sense was intact. The appellant appeared to have weakness with dorsiflexion and planar flexion of both feet. The impression was abnormal peroneal nerve conduction bilaterally. The VA examiner opined that these findings 'might be' consistent with a peroneal neuropathy, such as Charcot-Marie-Tooth disease. It was further noted that with the presence of ankle and knee reflexes and no objective sensory deficit, it was difficult to surmise that the electromyograph nerve conduction deficit was secondary to the appellant's degenerative disc disease or disc impingement; however, magnetic resonance imaging evidence would allow for this possibility. See VA Examination Report, August 3, 2005. The VA examiner failed to state with specificity whether or not the appellant's current bilateral heel numbness was related to his service-connected spine disabilities. Further, there is some question as to whether the appellant's abnormal peroneal nerve conduction is congenital. Accordingly, the VA examiner failed to state whether this condition was aggravated by the appellant's time in active duty service. For these reasons, the appellant's claim must be remanded for another VA examination. IBS and Acid Reflux Disease During his August 2005 VA examination, the appellant was diagnosed with IBS and gastroesophageal reflux disease (GERD). Although the appellant was not diagnosed with these conditions during his time in service, the VA examiner failed to discuss whether these conditions could have been associated with the appellant's in-service complaints of abdominal pain and acid reflux. As such, a new VA examination must be conducted. Rating for Loss of Use of Right Foot Beginning March 24, 2009, the Veteran has been rated for his right knee disability under Diagnostic Code 5167, pertaining to loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5167. This Diagnostic Code provides a 40 percent disability rating. In order to appropriately rate the Veteran's right knee disability, which could potentially warrant a rating higher than 40 percent based on range of motion limitations, the Board finds that the Veteran should be provided with a VA examination to determine the current nature and severity of his service-connected right knee disability. Accordingly, the case is REMANDED for the following action: 1. Scheduled the Veteran for a VA neurological/orthopedic examination to determine whether he had neurological abnormalities associated with his service-connected lumbar spine disability, the etiology of his bilateral heel numbness, and the current nature and severity of his service-connected right knee disability. The claims folder, including this remand and any medical records in Virtual VA, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. With regard to the Veteran's service connection claims for bilateral heel numbness and radicular symptoms associated with his service-connected back disability, the examiner should determine: a) whether there is a diagnosis associated with the appellant's complained of bilateral heel numbness, and whether any associated diagnoses are congenital; b) if any of the appellant's diagnoses associated with his complaints of bilateral heel numbness are congenital, whether this/these condition(s) were aggravated beyond their natural progression by the appellant's time in active duty service; c) whether it is at least as likely as not (50 percent probability or more) that the appellant's bilateral heel numbness is the result of active duty service (specifically addressing his complaints of bilateral heel numbness in his service treatment records); d) whether it is at least as likely as not (50 percent probability or more) that the Veteran has any diagnosed neurological abnormalities in his lower extremities related to his service-connected degenerative disc disease, disc bulges, and spondylolisthesis; in making such a finding, the examiner should address whether the Veteran's bilateral heel numbness is associated with or related to his service-connected lumbar spine disability. In connection with the rating for the Veteran's service-connected right knee disability, the examiner should determine whether the Veteran has arthritis in his right knee. In addition, the examiner should provide range of motion of his right knee in degrees, to include the degree at which pain begins and the degree at which pain, if present, limits motion, and specifically state if the Veteran has any recurrent subluxation or lateral instability of the right knee and, if so, whether those symptoms are slight, moderate, or severe. The examiner should also be asked to determine whether the right knee exhibits weakened movement, excess fatigability, instability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. In this regard, the examiner should estimate the extent of any additional functional limitation manifested during periods of flare-up. Such additional limitation should be expressed in degrees of motion lost during flare-ups. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 2. Schedule the Veteran for a VA examination to determine the etiology of IBS and GERD. All indicated tests and studies should be conducted. The claims folder, including this remand and any medical records in Virtual VA, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's IBS or GERD was caused by or is etiologically related to any incident of active duty. Specifically, the VA examiner is requested to address the appellant's in-service complaints of abdominal pain and acid reflux. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the appellant and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs