Citation Nr: 1340867 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 05-38 955A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to an increased evaluation for a back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for arthralgia of the left knee with loss of function due to pain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active military duty from December 1988 to December 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2008, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In September 2008 and June 2011, the Board remanded the issues for further development. In a September 2012 decision, the Board granted a 20 percent rating, but no higher, for arthralgia of the left knee with loss of function due to pain. The Veteran appealed this issue to the Court of Appeals for Veterans Claims (Court). In June 2013, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's decision to the extent that it denied a higher rating and remanded the issue for readjudication. In the September 2012 decision, the Board also remanded the issue for an increased rating for back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 for further development. The RO has completed the additional development and also returned this issue to the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. With the exception of September 2013 briefs submitted by the Veteran's representative and additional VA treatment records, a review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. Additional VA treatment records dated from February 2012 to July 2013 from the Birmingham, Alabama VA Medical Center (VAMC) were associated with the Veteran's Virtual VA record. It does not appear that these records were considered by the RO in it most recent supplemental statement of the case. Nevertheless in August 2013, the Veteran waived RO consideration of any additional evidence. 38 C.F.R. § 20.1304(c). As such, the Board may properly consider this evidence. In a statement submitted in January 2013, the Veteran appeared to be raising new claims seeking an increased rating for his service-connected pseudofolliculitis barbae and service connection for a right knee disability. As these matters are not currently before the Board, they are referred back to the RO for appropriate action. Pursuant to the JMR, the issue of entitlement to an increased rating for arthralgia of the left knee with loss of function due to pain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the course of the appeal, the Veteran's service-connected back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 has been manifested by some limitation on motion and abnormal spinal contour; but without forward flexion limited to 30 degrees or less and there have been no findings of favorable ankylosis, incapacitating episodes of at least four weeks over the past 12 months, or associated neurological abnormalities. CONCLUSION OF LAW Throughout the course of the appeal, the criteria for a disability evaluation in excess of 20 percent for the Veteran's service-connected back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist 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) (2012). 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: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) 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 issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in October 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate his increased rating claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also provided notice of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's private treatment records, VA treatment records and VA examination reports. As noted above, the Veteran's Virtual VA record contains additional treatment records dated to July 2013 from the Birmingham, Alabama VAMC as well as records dated to October 2012 from the Des Moines, Iowa VAMC. Moreover, the Veteran's statements and hearing testimony in support of the claim are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Additionally, the Veteran was afforded VA examinations in November 2006, December 2009, September 2011 and December 2012 to evaluate the severity of his service-connected low back disability. In June 2013, the December 2012 examiner provided an addendum indicating the claims file had been reviewed. The Board finds that the VA examinations with addendum are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent December 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. 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. Bryant, 23 Vet. App. at 488. Here, during the March 2008 Board hearing, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support this claim, including evidence that the Veteran might submit that may have been overlooked. The Veteran was also specifically asked questions concerning the severity of this low back disability. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of the issue and suggesting submission of evidence in the subsequent remands the Board issued to develop this claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Finally, the Board finds that there was substantial compliance with the previous remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in September 2008, June 2011 and September 2012 directed the RO to obtain additional VA treatment records and schedule the Veteran for VA examinations. As noted above, additional VA treatment records have been associated with the record and the Veteran was afforded VA examinations in December 2009, September 2011 and December 2012 that are adequate for appellate review. Accordingly, the Board finds that there has been substantial compliance with the prior Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). II. Analysis The Veteran is seeking rating in excess of 20 percent for his service-connected low back disability. 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods of time, based on the facts are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). As in the instant case, for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). See Mitchell, supra. Under the General Rating formula for Diseases and Injuries of the Spine, ratings are assigned as follows: a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated 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 dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides 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. The Veteran filed his current claim for an increased rating in May 2006. VA treatment records at that time showed an assessment of chronic low back pain. The Veteran was afforded a VA examination in November 2006. The claims file was not reviewed. The Veteran reported using muscle relaxers and pain medications for his back. He reported experiencing GERD as side affect to his medications. There was no history of urinary incontinence or fecal incontinence although nocturia was reported to occur twice per night. He also reported numbness and paresthesias, but denied any weakness, falls or unsteadiness. The Veteran complained of fatigue, decreased motion, stiffness, weakness, spasms and pain. The pain was located in the middle of the lumbar spine and the severity was moderate. It occurred daily and was described as needle sticking, pulling. The pain was constant and radiated to both legs and knees. The radiating pain was described as numbness and tingling. The Veteran also reported severe flare-ups every five to six hours that lasted hours. He did not know the precipitating or alleviating factors. The Veteran assessed that the additional limitation of motion during flare-ups was 85 to 90 percent. He also reported two incapacitating episodes in the past 12 months with one lasting for a 1/2 hour and the second was also for a brief period. He did not using any aids or devices. He was able to walk more than 1/4 mile, but less than one mile. On physical examination, while pain on motion was observed, there were no objective findings of spasm, atrophy, guarding, tenderness or weakness. There was no guarding or tenderness severe enough to result in abnormal gait or spinal contour. Posture, head position, symmetry in appearance and gait were all normal. There were no abnormal spinal contours. Motor examination and sensory examination were normal with the exception of impaired pinprick on the right. Ankle jerk reflexes were normal, but knee reflexes were absent. Range of motion was zero degrees to 90 degrees flexion both active and passive with pain beginning at 75 degrees both active and passive. There was pain on active and passive motion, but no additional pain after repetitive use or additional loss of motion. Extension was to 30 degrees without pain. Lateral rotation to right was to 30 degrees with pain at 20 degrees both active and passive. No other restricted motions were observed following repetitive use. Lasegue's sign was negative. A contemporaneous x-ray showed mild anterior wedging of T11, age indeterminate, but no significant abnormality of the lumbosacral spine. The Veteran was currently a full time student. The diagnosis was lumbar strain. There was a mild affect on shopping and recreation and moderate affect on chores, exercise and sports, but no affect on traveling, feeding, bathing, dressing, toileting or grooming. At the Board hearing in March 2008, the Veteran testified that he experienced inflammation, swelling and locking. He reported trouble sleeping due to back spasms. He further indicated that he experienced radiating pain down his lower extremities with numbness. He described his pain as constant. The Veteran also reported urinary problems, but denied any bowel issues. He again noted that he had acid reflux from the pain medications. The Veteran also denied any physician prescribed bed rest. He also reported having problems, but unable to miss days because he was on probation at school. In September 2008, given the possibility of an increase in severity, the Board remanded the case to afford the Veteran another VA examination and to obtain additional VA treatment records. VA treatment records continued to show complaints of chronic low back pain. A September 2009 physical therapy consult showed that the Veteran reported a flare-up occurring the previous month. His most recent prior exacerbation of low back pain was back in 2002. The Veteran reported that his pain was now subsiding, but sitting without back support increased his pain. Muscle relaxers and sleeping with pillows between his knees helped. An August 2009 MRI showed dehydration of the L4-5 disc with mild central and annular tear with mild foraminal narrowing. No nerve root defect was seen. Flexion was to 80 degrees with extension to 10 degrees with some increased pain with this movement. Strength was 5/5. There were also findings of moderate paraspinal muscle tightness and guarding. A follow up record showed that the Veteran had been using TENS unit with good results and had started back exercising. Follow up records continued to show treatment through physical therapy and using the TENS unit. At times, the Veteran did report increase in pain, tightness and muscle spasms. The Veteran was afforded another VA examination in December 2009. The claims file was reviewed. The Veteran reported using a TENS unit and medications for pain. He denied any side effects to treatment. Again, he reported paresthesias and he now indicated that he experienced weakness, falls and unsteadiness. He again denied urinary incontinence and bowel incontinence. The Veteran also complained of fatigue, decreased motion, stiffness and weakness, but denied spasms and pain. The Veteran reported moderate flare-ups every two to three weeks that lasted one to two days. Activity was the precipitating factor. The Veteran also reported incapacitating episodes, but did not use devices or aids and there were no limitations on walking. On physical examination, posture, head position and symmetry in appearance were normal. There was a slight antalgic gait due to pain in the left knee. Lumbar lordosis was observed, but no other spinal abnormalities. There was no spasm, atrophy, guarding or weakness, but pain on motion and tenderness were observed. Again, there was no tenderness or guarding severe enough to result in abnormal gait or spinal contour. Motor examination was normal and there was no atrophy. Muscle tone was normal. Sensory and reflex examinations were also normal. Range of motion was 60 degrees flexion, 15 degrees extension, 25 degrees right and left lateral flexion and 20 degrees right and left lateral rotation. There was no objective evidence of pain on active motion. There was also no objective evidence of pain following repetitive motion and no additional limitations following three repetitions. Lesegue's sign was negative. The examiner observed the August 2009 MRI results. The examiner determined that there were no incapacitating episodes. The Veteran was currently employed as mental health social worker. The diagnosis was lumbago with degenerative joint disease of L4-5. The only affects on activities observed were a moderate affect on exercise and sports and a mild affect on traveling. In a subsequent April 2010 statement, the Veteran reported inflammation of his back that irritated his sciatic nerve that caused him to miss over a week of work in August 2009. He reported attending physical therapy three times a month. He also seemed concerned that another MRI was not done in conjunction with the recent examination, but rather the examiner relied on the previous August 2009 MRI. Subsequently, the Veteran was afforded another VA examination in September 2011. The claims file was reviewed. It was noted that the Veteran was a social worker but unemployed at that time because he needed to obtain his license. The Veteran reported constant back pain radiating into his anterior thighs intermittently. The Veteran described severe flare-ups every two to three weeks that lasted one to two days. There was no particular aggravating or relieving factors. During flare-ups, he indicated that he could not walk or stand. At this examination, he denied any urinary or fecal incontinence as well as any numbness, paresthesias, weakness, falls or unsteadiness. However, he did report, fatigue, decreased motion, stiffness, weakness, spasm and pain. The pain was described as constant, moderate and daily. He also reported that it radiated into his anterior thighs and described it as stinging. There were no incapacitating episodes and he used a cane to walk. He was able to walk more than a 1/4 of a mile, but less than one mile. On physical examination, posture, head position, gait and symmetry in appearance were normal. No spinal abnormalities or ankylosis were observed. There was no spasm, atrophy, or weakness, but guarding, pain on motion and tenderness were observed. Again, there was no tenderness or guarding severe enough to result in abnormal gait or spinal contour. Motor examination was normal and there was no atrophy. Muscle tone was normal. Sensory and reflex examinations were also normal. Range of motion was 90 degrees flexion, 30 degrees extension, 30 degrees right and left lateral flexion and 30 degrees right and left lateral rotation. There was objective evidence of pain on active motion, but no objective evidence of pain following repetitive motion and no additional limitations following three repetitions. Lesegue's sign was negative. A contemporaneous x-ray was normal. It was observed that the Veteran was not employed because he needed to obtain his license. He had been assigned different duties due to back pain. It was also noted that he had low back pain with any strenuous activity. The claims file also includes an August 2012 statement from the Veteran's former military supervisor, which indicated that the Veteran's military career was severely affected due to his back injury as he was unable to return to mobility status. Although the supervisor indicated that the back issues may be more of a problem than reported by the Veteran, he did not provide any information concerning the Veteran's current low back symptoms. In September 2012, the Board again remanded this issue for VA treatment records and another VA examination as the Veteran's neurological symptoms and the previous MRI were not adequately addressed in the prior examination The Veteran was afforded a VA examination in December 2012. A June 2013 addendum indicated that the claims file was reviewed. The examiner noted diagnoses of degenerative disc disease and low back strain. The Veteran reported undergoing physical therapy for his back during the most severe episodes of exacerbations of back pain. The last physical therapy was in 2010. He also had a TENS unit at home. The Veteran further reported that he experienced intermittent pain to the posterior right upper leg. The Veteran reported monthly flare-ups where he experienced bad muscle spasms. The episodes were debilitating and he would go to bed. However, he had not been ordered by a physician to bedrest. As such, they were not considered incapacitating episodes. The Veteran reported increased pain during flare-ups. Range of motion was 90 degrees or greater flexion, 30 degrees flexion, 30 degrees right and left lateral flexion and 30 degrees right and left lateral rotation with no objective evidence of painful motion during any of these movements. On repetitive testing after three repetitions, there was no change in motion. The examiner explicitly observed that there were no additional limitations following repetitive-use testing. There was also no functional loss or impairment. The examiner also found no evidence of localized tenderness, guarding or muscle spasm. Strength testing was normal. There was no muscle atrophy. Reflexes of the knees and ankles were 1+ bilaterally. Sensory examination was normal. Straight leg raising testing was negative on both sides. The examiner explicitly found that the Veteran did not have any radicular pain or signs or symptoms of radiculopathy. The examiner also determined that the Veteran did not have any other neurological abnormalities or intervetebral disc syndrome. The Veteran did not use an assistive devices. The examiner also opined that the Veteran's low back disability did not impact his ability to work. The examiner observed that the Veteran complained of pain in the right upper posterior leg, however, as the Veteran had normal sensation in his extremities bilaterally on examination, there was no objective evidence of any current active radiculopathy. While this did not eliminate the possibility that the Veteran suffers from intermittent exacerbations of sciatica, there was no evidence of any current sciatic radiculopathy. The Veteran continued to show no objective evidence of any current disc bulge of his lumbar spine with normal x-rays, normal sensory examination and normal range of motion. There was no ankylosis of the spine of any type. A contemporaneous x-ray was normal. However, the examiner did note the August 2009 MRI. The examiner indicated that it could not possibly be determined the loss of motion during flare-ups unless examination was done during flare-up. However, three was no change in the Veteran's range of motion during repetitive use. The Veteran used a cane for ambulation due to his knee condition. Additional VA treatment records document continuing complaints of chronic low back pain and spasms. In June 2013, it appears that the Veteran underwent a consult for a back brace. However, nothing in these records document limitation of motion to 30 degrees flexion or less or observe any sort of neurological abnormalities. In a statement received in January 2013, the Veteran reiterated his low back findings that were documented in service and indicated that he was told that the findings equated to a 40 percent rating. The Veteran also reported ongoing symptoms of pain, swelling, spasms and stiffness. He reported that his L5 vertebrae popped out of place and limited flexibility. He also reported two episodes of fecal incontinence. He asserts that these symptoms are due to his disc bulging. The Veteran also submitted lay statements from his mother and a fellow service member. His mother reported witnessing the Veteran's back give out at some point and the Veteran having to remain in bed for over a week. She also indicated that his back was affecting his overall mental state that had declined and impacted his ability to work. The other statement from the fellow service member essentially reiterated the Veteran's claims that during flare-ups he was unable to do house hold chores. However, it appears that this statement was simply based on what he had been told by the Veteran as opposed to firsthand knowledge. After reviewing the totality of the evidence, the Board finds that when applying the general rating formula to the Veteran's low back disability, there is no competent medical evidence to warrant a rating in excess of 20 percent at any point during the course of the appeal. There has been no objective findings of forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent rating. The most restrictive range of motion found was 60 degrees flexion documented at the December 2009 VA examination. The remaining evidence showed that the Veteran's flexion was much higher. Again, the Veteran has reported chronic low back pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the 20 percent. The Board recognizes that the Veteran reported an additional 85 to 90 percent limitation during flare-ups at the November 2006 VA examination. However, on examination there was no additional loss of motion following repetition. Moreover, no additional restrictions were found following repetitive use at any of the following examinations. The Board finds that actual range of motion testing done by medical professionals has more probative value than the Veteran's simple estimations without any clinical correlation. The December 2012 examiner indicated that it was not possible to determine the loss of motion during flare-ups unless an examination was done during a flare-up. Nevertheless, she did observe that there was no change in range of motion following repetitive use. In sum, there is no evidence that flare-ups result in loss of range of motion meeting the criteria for a rating in excess of 20 percent. Again, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 20 percent is not warranted based on limitation of motion. Further, consideration has been given as to whether a higher disability evaluation could be assigned under Diagnostic Code 5243 for intervertebral disc syndrome. There has been no medical evidence showing that the Veteran has been prescribed bed rest due to incapacitating episodes having a total of at least four weeks during the past 12 months to warrant a 40 percent rating for intervertebral disc syndrome. Although the Veteran has reported periods where he has been bed-ridden, he has not reported any incidents of being bedridden that have totaled at least four weeks in the past 12 months. Importantly, VA treatment records are silent with respect to any findings of physician prescribed bedrest at any point during the appeal. Moreover, all of the VA examinations specifically found that there had been no incapacitating episodes. Significantly, there has been no objective finding of neurological abnormalities associated with the Veteran's low back disability during this period. Although the Veteran reported radiating pain to his legs, with the exception of decreased pinprick on the right documented at the November 2006 examination, on all remaining examinations, he has been neurologically intact with normal strength in the lower extremities on examination. When specifically requested to provide an opinion, the most recent December 2012 examiner clearly determined that there was no objective evidence of active radiculopathy. While there was the possibility of intermittent exacerbations of sciatica, there was no evidence of current sciatic radiculopathy. The Veteran continued to show no objective evidence of current disc bulge with normal x-rays, normal sensory examination and normal range of motion. Therefore, given that the remaining evidence of record essentially shows normal sensory examinations during the course of the appeal, when weighing the evidence, the Board finds that this one instance of decreased sensation was not indicative of the Veteran's overall disability picture. Importantly, the VA examinations also documented no history of bowel or bladder incontinence. Although the Veteran has reported two episodes of fecal incontinence, this appears to be completely inconsistent with all other complaints, evidence and objective findings during the course of the appeal. Again, the most recent VA examiner clearly found no associated neurological abnormalities as the examination was normal with no objective evidence of current disc bulge and the Veteran expressly denied any urinary or fecal incontinence. At all the previous examinations, the Veteran also expressly denied any urinary or fecal incontinence and VA treatment records are also silent with respect to any such findings. If the Veteran was experiencing fecal incontinence due to his low back disability, it would be reasonable to assume that he would have reported this problem during the course of treatment. As such, the Board finds that given that the Veteran's report is completely inconsistent with the remaining evidence of record, it is not credible and outweighed by the evidence showing no such neurological abnormality. Thus, the Board finds that a separate rating is not warranted for any other neurological symptoms and the Veteran's manifested symptoms associated with his low back disability are adequately contemplated in the current 20 percent rating. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. In this regard, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, at one point, the Veteran asserted that he was told that his disability at discharge equated to a 40 percent rating. However, the main question at issue is the severity of his low back disability during the course of the appeal since filing his current claim in May 2006. As such, the symptoms that he was experiencing at discharge are not as relevant as his current symptoms outlined above. As discussed above, the Veteran's current symptoms simply do not meet the criteria for a 40 percent rating. The Board also finds it significant that there has been no clinical correlation to support the Veteran's assertions. For instance, while VA treatment records document complaints of back pain, there have been no findings of any associated neurological abnormalities. At VA examinations, the Veteran has also reported severe flare-ups occurring on a regular basis. However, VA treatment records showed that the Veteran reported a flare-up of pain in August 2009 and before that time, it has been in 2002. Subsequently, he reported a flare-up in 2010. If the Veteran was experiencing more consistent flare-ups, it would be reasonable to assume that they would be documented in the VA treatment records. While these records do show treatment with physical therapy and documents complaints of back pain, they are silent with respect to any flare-ups essentially restricting the Veteran to the point where he was unable to move as he has asserted. In sum, in this case, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether any additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected low back disability; however, the Board finds that his symptomatology has been stable throughout the course of the appeal. Therefore, assigning staged ratings for such disability during this period is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected low back disability with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's 20 percent rating contemplates the functional limitations as well as pain caused by his low back disability. In sum, the Veteran's symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to the back disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (providing ratings on the basis of ankylosis and limited flexion). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected low back disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. In this regard, there is nothing exceptional or unusual about the Veteran's low back disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Accordingly, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Nevertheless, the Board does observe that the record is silent with respect to any findings of frequent hospitalizations or marked interference with employment. There is no documentation of any hospitalizations and the most recent examiner clearly found that the Veteran's disability did not impact his ability to work. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the evidence has not shown that the Veteran's service-connected low back disability has rendered him unemployable. Rather, the evidence primarily showed that he was not working in his profession as a social worker because he needed to obtain an appropriate license. Again, the most recent VA examiner found that the Veteran's disability did not impact his ability to work. Accordingly, there is no need for further analysis with respect to this matter. In conclusion, after reviewing the overall record, a rating in excess of 20 percent for the Veteran's service-connected low back disability is not warranted. As a preponderance of the evidence is against a rating in excess of 20 percent during this period, benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Throughout the course of the appeal, a disability rating in excess of 20 percent for back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5, is denied. REMAND With respect to the issue of entitlement for an increased rating for arthralgia of the left knee with loss of function due to pain, the JMR found that that the Board had erred in relying upon a September 2011 VA examination. In this regard, the JMR determined that the examination was inadequate for rating purposes because the examiner did not state at what point in the plane of motion the Veteran's left knee pain had its onset in accordance with Mitchell, cited above. Thus, in accordance with the JMR, the Board finds that a new VA examination is necessary to address the severity of the Veteran's service-connected left knee disability. Lastly, in light of the need to remand, the RO should obtain any current VA treatment records pertaining to the left knee from June 2013 to the present. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records from June 2013 to the present. 2. Arrange for the Veteran to undergo VA orthopedic examination to assess the severity his left knee disability. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the left knee (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the left knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in the left knee. If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. 3. After the above development, the claim should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs