Citation Nr: 1339945 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 07-33 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder, to include patellofemoral syndrome. 2. Entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis prior to November 15, 2011. 3. Entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis from November 15, 2011. 4. Entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on an extraschedular basis. 5. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from February 2000 to February 2002 and from June 2003 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. The Veteran appeared at the RO before a local hearing officer in April 2009 and at a videoconference Board hearing before the undersigned Acting Veterans Law Judge in February 2010. Transcripts of the hearings are of record. In September 2010, the Board remanded this matter for further development. As a result of some of the evidence received and development done in conjunction with the claim, further development is necessary on the issue of service connection for a bilateral knee disorder and the issues of entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on an extraschedular basis and the claim for a TDIU. The Board finds that there is sufficient competent lay and medical evidence to decide the claim for an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis for the time period prior to November 15, 2011. Additional pertinent evidence was associated with the claims file and Virtual VA file subsequent to the most recent supplement statement of the case dated November 15, 2011 and this evidence must be considered. Thus, the issues of entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis from November 15, 2011 and entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on an extraschedular basis are remanded below. See Fenderson v. West, 12 Vet. App. 119 (1999) (in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period). See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (acknowledging that VA may bifurcate a claim and address different theories or arguments in separate decisions). ` The issue of entitlement to a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Accordingly, the Board has jurisdiction of the issue of entitlement to a TDIU and that issue has been added to the present appeal. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised); VAOPGCPREC 12-2001 (further expanding on the concept of when an informal claim for TDIU has been submitted). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issues of service connection for a bilateral knee disorder, to include patellofemoral syndrome; entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a scheduler basis from November 15, 2011 and on an extraschedular basis for the entire appeal period; and entitlement to a TDIU are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the rating period prior to November 15, 2011, the Veteran's herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces has been manifested by forward flexion to no less than 10 degrees; with no ankylosis; no incapacitating episodes as defined by regulation, and no neurological impairment. CONCLUSION OF LAW For the rating period prior to November 15, 2011, the criteria for an initial disability rating in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). With regard to the appeal for a higher initial disability evaluation for the Veteran's service-connected low back disorder on a schedular basis, because the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection no additional notice is required. The Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA and private treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the claimant as it relates to his low back disorder. As to the low back claim, the Veteran was afforded VA examinations in November 2006, November 2008, and October 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be adequate for rating purposes. The examination reports provided a history supplied by the Veteran and detailed examination results. For this reason, an additional VA examination is not necessary. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments and by appearing at two hearings. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran. Law and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating for 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be rated under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for Intervertebral Disc Syndrome 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 disability rating for Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings 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 that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated 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. 38 C.F.R. § 4.71a. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a , Diagnostic Code 8520, which provides criteria for rating impairment of the sciatic nerve, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes disabled on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is to be considered in evaluating the degree of disability, but a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (indicates that pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain may be the basis for a rating for a disability rated based on limitation of motion, regardless of whether or not the limitation of motion specified in the Diagnostic Code criteria is shown). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background and Discussion The Veteran maintains that the symptomatology associated with his herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces warrants an evaluation which is higher than that currently assigned. He maintains that the limited range of motion, the incapacitating episodes resulting from his service-connected low back disorder, and the neurological impairment caused by the service-connected low back disorder demonstrates that an increased evaluation is warranted. In conjunction with his claim, the Veteran was afforded a VA examination in November 2006. At the time of the examination, the Veteran reported having low back pain. It was noted to be a constant mild dull ache and to be sharp and severe with flare-ups. There was no radiation of pain to the lower extremities. The Veteran stated that his back would flare after walking 1.5 miles. He did not use a cane but wore a brace. The Veteran stated that he could not move his back when it flared. Standing caused no difficulties. The Veteran reported having had three incapacitating episodes in the past 3 months, lasting anywhere from 20 minutes to an hour. Physical examination revealed forward flexion to 40 degrees, with pain at 40 degrees. After repetitive motion, forward flexion was from 0 to 20 degrees. Motor and sensory examination were negative. A diagnosis of low back strain with functional disability was rendered. At the time of an April 2008 neurological evaluation, muscle tone, bulk, and strength were reported as normal. Power was 5/5 in all muscle groups. Dysthesias, paresthesias, allodynia, hyperalgesia, hyperpathia, and after sensation to stimulation were not present. Patella and ankle jerk were present and plantar reflexes were flexors. At a June 2008 outpatient visit, the Veteran was noted to have no atrophy and normal strength at the hips, knees, and ankles. There were no sensory deficits with light touch. At the time of a November 2008 VA examination, the Veteran reported having a constant dull ache in his back which was mild in intensity and caused sharp shooting pain with flares, which were moderate to severe in intensity. The Veteran reported no radiation to the lower extremities. The Veteran noted having flare-ups, especially with activities or early in the morning, or after prolonged sitting, standing, or walking. The Veteran stated that when he had a flare-up it was severe and he could not move his back. The Veteran reported having had 12 incapacitating episodes in the past 12 months which lasted from 18 to 36 hours. Physical examination revealed forward flexion from 0 to 13 degrees with pain at 13 degrees. The Veteran declined to perform repetitive motion. Motor and sensory examinations were negative. At his February 2010 hearing, the Veteran testified that he had used a cane to walk since 2006. He also stated that he wore a back brace on close to a daily basis. The Veteran further testified as to taking morphine three times per day at eight hour intervals. He reported having incapacitating episodes approximately 1.5 weeks per month. In conjunction with the September 2010 Board remand, the Veteran was afforded VA orthopedic and neurological examinations in October 2010. At the time of the examinations, the Veteran indicated that he had daily moderate flare-ups of his low back condition which would last 2-3 minutes. Prolonged sitting, standing, and bending over were precipitating factors. Alleviating factors were rest and pain medications. The Veteran stated that he would lose up to 20 minutes of functioning with flare-ups. He indicated that he could not do anything until the pain subsided. There was no history of urinary problems, fecal incontinence, or numbness, paresthesias, or leg or foot weakness. There were also no falls or unsteadiness. The Veteran did not have fatigue. He did have a history of decreased motion, weakness, spasm, and spine pain. The Veteran reported that his back pain was localized and constant with a dull ache that was moderate and occurred on a daily basis. He stated there was no radiation. The Veteran indicated that he would have incapacitating episodes 5-10 times per month with extreme pain. The onset was unpredictable and he reported having to stay in bed for 12-24 hours, only getting up to go to the bathroom. The Veteran stated that he was not treated at the hospital or by a physician for the incapacitating episodes. Physical examination revealed no Gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis. There was no spasm, atrophy, or tenderness. Guarding, pain with motion, and weakness were present. Flexion was from 0 to 50 degrees. The Veteran declined repetitive testing for fear of aggravating the pain. Reflex testing revealed normal findings for knee and ankle jerks. Sensory examination was normal for both lower extremities. The Veteran had 5/5 strength with hip and knee extension and flexion and 5/5 strength for ankle dorsiflexion, ankle plantar flexion, and great toe extension. He had normal muscle tone and no muscle atrophy. The examiner rendered a diagnosis of degenerative disc disease with nonradicular symptoms. Based upon these findings, the Board finds the assignment of an initial rating in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis is not warranted prior to November 15, 2011 as the requirements of unfavorable ankylosis of the thoracolumbar or entire spine, or incapacitating episodes of intervertebral disc syndrome of at least 6 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, DCs 5235-5243. Flexion of the thoracolumbar spine has been shown to be no less than 10 degrees, even with consideration of the factors listed in DeLuca. There was no ankylosis of the spine, either favorable or unfavorable, at any time. The Board has considered the additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 40 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the Veteran's reported impairment of function in occupational settings and in daily life, such as limited walking; being unable to push or pull, bend or squat; and being unable to stand or sit for any prolonged periods of time, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). At many of the VA examinations, the Veteran refused to perform repetitive motion; however, at the last VA examination, the Veteran's forward flexion range of motion actually increased following repetitive motion. Even if the pain and additional limitation are taken into consideration, the range-of-motion measurements still do not meet or more nearly approximate the criteria for the next higher rating category. Indeed, the lowest flexion measurement was to 10 degrees. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain. Thus, the overall evidence shows that pain or other factors have not resulted in additional functional limitation such as to enable a finding that the disability picture more nearly approximates the next-higher, 50 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. As discussed above, the criteria for a 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an evaluation higher than 40 percent are not met, as range-of-motion findings fall well within the 40 percent rating category, even taking additional loss of motion due to DeLuca factors into account; therefore, the 40 percent rating, but no more, is appropriate. Next, the Board has considered whether a rating in excess of 40 percent is warranted under DC 5243 based on incapacitating episodes. As previously mentioned, DC 5243 deals with intervertebral disc syndrome, which can include degenerative disc disease. However, in order to meet the criteria for a compensable rating under this diagnostic code, a veteran must show that a physician ordered bed rest to treat the disorder. In this case, despite the Veteran's report of incapacitating episodes and the notation that such episodes would occur on a frequent basis, there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under Diagnostic Code 5243 at any time prior to November 15, 2011. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating, including Diagnostic Code 5237, which addresses lumbosacral strain, discussed above. Diagnostic Code 5242 is also potentially applicable, as it addresses degenerative arthritis of the spine. Disabilities evaluated under this code are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. However, Diagnostic Code 5242 is related to Diagnostic Code 5003, which also addresses degenerative arthritis. In this case, the maximum evaluation possible under Diagnostic Code 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, it does not allow for a higher evaluation. There are no other applicable codes available for consideration. The normal neurologic findings support a finding that no additional rating can be awarded on the basis of neurologic impairment. For these reasons, the Board finds that the weight of the evidence is against a finding of an evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis for the time period prior to November 15, 2011. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3 , 4.7. ORDER An initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis for the time period prior to November 15, 2011 is denied. REMAND As it relates to the claim of service connection for a bilateral knee disorder, to include patellofemoral syndrome, the Board notes that in accordance with the September 2010 Board remand, the Veteran was afforded a VA examination in October 2010. At the time of the examination, the examiner indicated that it was less likely than not that the Veteran's bilateral patellofemoral syndrome was related to events during the Veteran's period of service. The examiner reported that the claims folder was available and had been reviewed. In support of his opinion the examiner referenced normal findings at the March 2003 entrance examination and reports of no knee trouble on the March 2003 report of medical history. The examiner further stated that there was no documentation or any complaints or treatment for the claimed bilateral knee condition in the service treatment records. In his October 2013 written argument, the Veteran's representative noted that service treatment records revealed that the Veteran was treated for knee problems in service as evidenced in the folder marked "Treatment Records" and labeled Darnell ACH Ft. Hood TX File Room Monroe Clinic. The representative requested that the issue be remanded so that the VA examiner could review and consider the treatment documentation within the treatment records in the folder noted above. The Board notes that a review of the service treatment records reveals that the Veteran was seen in July 2001 with complaints of left knee pain for three months. The Veteran reported that this knee buckled in the morning when getting out of bed. He stated that the most pain was in the medial portion of the left knee radiating proximal up to the left hip. The Veteran noted having pain after walking upstairs or after long runs. He indicated that he had been in a motor vehicle accident in January 2001. Following examination, a diagnosis of retropatellar knee pain secondary to pathologic leg length discrepancy was rendered. The Veteran was also provided with a document entitled "Knee Owner's Maintenance Guide, The "How To's" of Preventing and Managing Knee Pain". Based upon the above, and per the Veteran's representative's request, the claims folder should be returned to the examiner who performed the October 2010 examination and rendered the above opinion, with a request being made that he review the service treatment records identified above and indicate what impact, if any, these documents had on his prior opinion. Detailed rationale should accompany the examiner's opinion. As it relates to the claim for an evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on an extraschedular basis, the Board notes that it is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). In the exceptional case, however, where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The RO declined to forward the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of the assignment of an extraschedular rating. The RO found that the evidence did not establish such exceptional factors or circumstances associated with the Veteran's disablement as to warrant the referral for extraschedular consideration. The Board, however, finds that further development is required in this regard prior to appellate handling of this matter. The Board observes that the April 2012 VA examiner did not specifically indicate whether the Veteran's service-connected low back disorder resulted in marked interference with employment. The issue is whether there is a marked interference with employment, and the evidence of record is insufficient to make such a determination. Accordingly, the claims folder should be returned to the April 2012 examiner, if available, for clarification purposes. As discussed in the Introduction, the issue of a TDIU has been raised by the record. See Rice. As such, the Board must remand the TDIU portion of the Veteran's appeal. While the Board notes that the Veteran has been provided a duty to assist letter on this issue and that VA examinations were performed in April 2012 with regard to the Veteran's claim for a TDIU, it does not appear that the RO has adjudicated this issue. Also, as noted in the Introduction, additional pertinent evidence was associated with the claims file and Virtual VA file subsequent to the most recent supplement statement of the case dated November 15, 2011 and this evidence must be considered. Thus, the issue of entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a schedular basis from November 15, 2011 should be readjudicated in light of the additional evidence. Accordingly, the case is REMANDED for the following action: 1. Contact the VA examiner who conducted the October 2010 VA examination or a suitable replacement to prepare an addendum to the October 2010 examination report. The examiner should review the claims folder and all pertinent evidence. The examiner should specifically review the Veteran's service treatment records with specific reference being made to the July 2001 service treatment record which contained a diagnosis of retropatellar knee pain and the document provided to the Veteran entitled "Knee Owner's Maintenance Guide, The "How To's" of Preventing and Managing Knee Pain". Following review of the above noted treatment records as well as other evidence of record, the examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right or left knee disorder is related to the Veteran's period of service. Complete detailed rationale should be provided for each opinion that is rendered. 2. Contact the VA examiner who conducted the April 2012 VA examination or a suitable replacement to prepare an addendum to the April 2012 examination report. Following a complete review of the claims folder and all other pertinent records, the examiner must offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces causes marked interference with his employment. Any opinion should be accompanied by an explanation regarding how the Veteran's service-connected disability causes marked interference with employment. If the examiner is not available refer the Veteran's claim to another and request that he provide the requested opinions. 3. After receiving the addendum report from the April 2012 VA examiner, refer the Veteran's claim for an increased evaluation for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces to the either the Under Secretary for Benefits, or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). 4. The RO/AMC should adjudicate the issue of a TDIU. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the AMC/RO should adjudicate the issues of service connection for a bilateral knee disorder, to include patellofemoral syndrome; entitlement to an initial evaluation in excess of 40 percent for herniated disc disease of the lumbar spine with status post-surgery at L5-S1 with opaque prosthetic endplates in the interspaces on a scheduler basis from November 15, 2011 and on an extraschedular basis for the entire appeal period; and entitlement to a TDIU in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ C. L. Krasinski Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs