Citation Nr: 1428294 Decision Date: 06/23/14 Archive Date: 07/03/14 DOCKET NO. 07-39 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for lumbar spine degenerative disc disease and chronic muscular strain with buttock muscle strain. 2. Entitlement to service connection for a bilateral radiculopathy (also claimed as bilateral leg and hip disabilities). 3. Entitlement to service connection for a right knee disability, as secondary to service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his D.P. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to October 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in April 2006, October 2007 and July 2008, by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Veteran and his brother testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file. This case was previously before the Board in February 2011 and was remanded for further development. During the hearing, it was requested that the claims of service connection for bilateral leg and hip disabilities be condensed into a single claim for service connection for bilateral radiculopathy. The issues on the cover page have been revised accordingly. In September 2012, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). The claim of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Even considering pain and functional impairment, the Veteran's lumbar spine degenerative disc disease and chronic muscular strain with buttock muscle strain has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees and there is no evidence of incapacitating episodes of disc disease having a total duration of at least four weeks. 2. The Veteran's lumbar spine disability results in bilateral radiculopathy of the lower extremities resulting in mild impairment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for lumbar spine degenerative disc disease and chronic muscular strain with buttock muscle strain have not been. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5243 (2013). 2. The criteria for a service connection and a separate 10 percent rating for right lower extremity radiculopathy (claimed as right leg and hip disability) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for a separate 10 percent rating for left lower extremity radiculopathy (claimed as left leg and hip disability) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in December 2005, March 2006, February 2008, and February 2011. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were readjudicated in the August 2012 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in November 2010, during which he presented oral argument in support of his claim. 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) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues and the Veteran testified as to his symptomatology and treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran testified as to those elements. As such, the Board finds that there is no prejudice to the Veteran in deciding this case and that no further action pursuant to Bryant is necessary. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues herein decided has been obtained. Relevant to VA's duty to assist, the AOJ made multiple attempts to obtain the Veteran's complete service records, through the National Personnel Records Center (NPRC), but was informed by that facility that such records were not found. In correspondence in March 2006, the AOJ informed the Veteran that the records were not available and he was advised to submit any records he may have in his possession. The Board finds that additional efforts to obtain these records would be futile and are therefore unwarranted. The claimant was provided the opportunity to present pertinent evidence. The Veteran's available service treatment records and post service treatment records have been obtained. In addition, he has been provided with appropriate VA examinations. The Board also notes that actions requested in the prior remand have also been undertaken. Indeed, corrective VCAA notice was provided, the Veteran was asked to provide information concerning private treatment, VA treatment records were obtained, and a VA examination was conducted. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Moreover, the Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to review the merits of the issues on appeal. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2013). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The RO granted service connection for lumbar spine degenerative disc disease and chronic muscular strain with buttock muscle strain in October 2007, and assigned a 20 percent evaluation effective October 19, 2005, under Diagnostic Code 5243. The Veteran appealed for an initial higher rating. He reported discomfort and difficulty sleeping due to back pain and related lower extremity symptoms. The regulations provide for evaluation of spine disabilities under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Alternatively, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2013). Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted 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 rating of 40 percent is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2013). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2 (2013). Any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Alternatively, under the IVDS Formula, a rating of 10 percent is warranted for intervertebral disc syndrome where there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula (2013). Back Disability Initially, the Board notes that while the Veteran has been diagnosed with degenerative disc disease and on VA examination in February 2011, the Veteran reported being incapacitated for 21/2 days two weeks earlier. However, he did not seek medical treatment and the evidence does not show, nor does the Veteran claim, that he was prescribed bed rest by a physician. Throughout the period on appeal the evidence of record does not demonstrate bed rest prescribed by a physician and treatment by a physician having a total duration of at least four weeks during any 12 month period. As such, the Veteran does not satisfy the criteria for an increased rating under Diagnostic Code 5243 for intervertebral disc syndrome because the record does not show documented periods of acute signs and symptoms of disc disease that required bed rest prescribed by a physician and treatment by a physician. Accordingly, the Board finds that he is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. As the Veteran is not entitled to an increased rating based upon incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on the General Rating Formula. Throughout the appeal, the evidence shows that the ranges of motion of the Veteran's lumbar spine fall at most within the requirements for a 20 percent rating. The Veteran underwent a VA spine examination in August 2007. He complained of chronic low back and bilateral lower extremity pain. The Veteran endorsed flare-ups in back symptoms triggered by standing, walking, laboring and prolonged driving. These episodes occurred daily and lasted about an hour. He also related weakness and fatigue. On examination, the Veteran was able to heel-toe walk. He was able to flex forward and reach his feet. Flexion was to 90 degrees, extension was 25 degrees, rotation was to 30 degrees bilaterally, and lateral bending was to 35 degrees to one side, and 30 degrees to the other side. The examiner determined that there was a decrease in flexion of the back by 25 degrees during flare-ups. There was moderate pain with range of motion. The examiner also noted tenderness over the lumbar spine and muscle spasms. X-rays revealed degenerative disc disease of the lumbar spine. The examiner diagnosed chronic muscular strain in the lower back. The examiner also diagnosed bilateral buttock muscular strain with referred pain form the lower back. The examiner opined that working capacity was somewhat diminished by back and buttock pain. On VA examination in March 2008, the Veteran complained of low back pain that radiated bilaterally to the buttock area. He endorsed flare-ups in pain. The Veteran was able to heel-toe walk. Percussion of the spine produced pain at the L5. There was also tenderness along the L5 area, along with mild muscle spasms. Flexion of the spine was to 85 degrees, extension was to 20 degrees, and rotation and lateral bending were to 30 degrees, bilaterally. There was objective evidence of moderate back pain with all range of motion movements. During flare-ups in symptoms there would be a loss of motion of five degrees on the back. There was no decreased motion on repetitive movement. The examiner diagnosed chronic back pain due to muscular strain superimposed on degenerative instability. On VA joint examination in October 2008, the Veteran reported being able to drive for 90 minutes and walk for 30 minutes. Flexion was to 90 degrees, extension was to 20 degrees, lateral bending was to 30 degrees on one side and 25 on the other, and rotation was to 30 degrees, bilaterally. The examiner found that during flare-ups in symptoms flexion of the back decreased by 45 degrees. There were no changes in the range of motion on repetitive movements. There was moderate pain throughout the range of motion. There was also tenderness along the L5 area, along with mild muscle spasms. Subsequent VA treatment records noted continued complaints of low back pain that radiated to the lower extremities. On VA examination in February 2011, the examiner found that his back disability was productive of functional limitations such as difficulty bending, picking up things, and swinging a sledge hammer. The Veteran's gait was noted to be antalgic with a slight limp. He did not require assistive devices for ambulation. Forward flexion was to 75 degrees with pain at 50 degrees on repetitive motion. Extension was to 25 degrees with onset of pain at 20 degrees. Right and left lateral flexion was to 30 degrees with onset of pain at 25 degrees, bilaterally. Right and left lateral rotation was to 30 degrees, bilaterally, with terminal pain. There was no palpable tenderness or spasms. The examiner diagnosed lumbar spine degenerative disc disease at L2-3 and chronic muscular strain with buttock muscle strain, productive of mild functional limitation. At that time, the Veteran was employed as a carpenter. In sum, the weight of the evidence fails to show limitation of flexion of the lumbar spine to 30 degrees or less. Even considering the Veteran's subjective complaints of pain and functional impairment, the medical evidence of record does not support any additional limitation of motion in response to repetitive motion that would support an evaluation in excess of the 20 percent presently assigned. See DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. 32; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). The Board has also considered whether the Veteran is entitled to a separate evaluation for any associated objective neurologic abnormalities that result from his lumbar spine disability. Other than the lower extremities, which will be discussed below, no other neurologic abnormalities have been demonstrated or claimed as associated with his back disability. Bilateral Lower Extremity Radiculopathy As noted in the Introduction, the Veteran's hip and leg claims were initially adjudicated as distinct disabilities, both claimed as secondary to his back disability, and manifested by radiating pain. During his hearing before the Board, the representative clarified that "some of the issues we had were service connection for bilateral hip conditions and bilateral leg conditions. We would like to condense those into an issue of bilateral radiculopathy secondary to the back condition." It was later acknowledged that the Veteran did not have any actual specific leg disability or hip disability, but rather he had radiating pain from his back into those areas. VA treatment records show that from 2007 to 2008, recorded complaints of lower back pain that radiated to the lower extremities. He endorsed a burning sensation and denied any numbness, weakness or tingling in the legs. There was no evidence of neuropathic involvement. On VA examination in August 2007, the Veteran complained of chronic bilateral lower extremity pain. Flare-ups in back symptoms did not affect the lower extremities. The bilateral leg pain was described as mild. He denied numbness. On examination, the Veteran was able to heel-toe walk. He was able to flex forward and reach his feet. The examiner also noted tenderness over the lumbar spine and muscle spasms. Reflexes in the lower extremities were normal. Extensor muscle and sensation were also normal. Straight leg raising was tolerated to 80 degrees, bilaterally. The examiner noted bilateral hip tenderness and pain, and diagnosed bilateral buttock muscular strain with referred pain form the lower back. On VA examination in March 2008, the Veteran complained of low back pain that radiated bilaterally to the buttock area. There was no anterior or lateral hip pain. He denied symptoms of numbness. The Veteran was able to heel-toe walk. Percussion of the spine produced pain at the L5, and there was tenderness along the L5 area, along with mild muscle spasms. The reflexes were normal in the lower extremities. Extensor muscles and sensation were also normal. Calf circumference was equal. Straight leg raising was easily tolerated at 80 degrees, bilaterally. There was muscular tenderness in the buttock area. Lumbar nerve roots were noted to be fine. He was diagnosed with buttock pain due to chronic muscular strain plus referred pain from the back, which was determined to be part of the back problem. The Veteran underwent a VA peripheral nerves examination in September 2008. He complained of back pain that radiated beyond the buttock area to both thighs. He denied weakness in either extremity. On examination, deep tendon reflexes were equally, bilaterally. There was no apparent motor loss. Romberg test, Tinel's sign and Phalen's tests were negative. There was no muscle atrophy. Sensation to light touch and pinprick were intact. The examiner diagnosed intervertebral disc syndrome with pain radiating into both lower extremities. The examiner found no evidence of peripheral neuropathy at that time. On VA joint examination in October 2008, the Veteran complained of back pain that radiated to the full length of the lower extremities, described as shooting pains down the posterior part of the lower legs. He reported occasional swelling of the toes, but denied any numbness or tenderness. There was tenderness along the L5 area, along with mild muscle spasms. Sensation in the lower extremities was normal. Neurologic function in the legs was normal, as was straight leg raise. Lumbar nerve roots were noted to be fine. The Veteran was diagnosed for both lower legs, both hips, and both thighs with chronic muscular strain plus referred pain from the back. Contemporary VA treatment records noted continued complaints of low back pain that radiated to the lower extremities. On VA examination in February 2011, the Veteran's gait was noted to be antalgic with a slight limp. He did not require assistive devices for ambulation. Patellar (L3-4) and Achilles (S1) reflexes were 2/4, bilaterally. There was no atrophy, strength and tone was normal. Sensation was intact to light touch and pinprick. There was no palpable tenderness, spasms, hip flexor tightness, or hamstring tightness. Straight leg raising was negative, bilaterally. Subsequent VA treatment records noted a diagnosis of bilateral lumbar radiculopathy. X-rays in February 2011 showed minimal anterior hypertrophic spondylosis at L2 and L3. An April 2011 lumbar MRI revealed right paracentral annular disc bulge at L5-S1 level with contained protrusion displacing a right nerve root within the canal probably the S1-2 nerve root, with lesser degenerative changes at L2-3, consistent with lumbar radiculopathy. A clinical treatment note in August 2011 noted that recent electromyography/nerve conduction study (EMG/NCS) were noncontributory, normal. In September 2011, the Veteran reported low back pain that radiated down to the lower extremities, bilaterally, occasionally all the way down to the ankles. Tens unit was mild to moderately effective in treating the pain. Motor functional was grossly normal. It was noted that the Veteran remained able to heel-toe walk. MSR's were 2+ and symmetric. Straight leg raising was negative, bilaterally. There was tenderness to palpation at L4 and L5 level centrally an over paravertebral muscles. In a medical statement in September 2012, the Veteran's private physician noted that the Veteran's complaints of low back pain that radiated to the lower extremities were consistent with his in-service injuries. After a review of all the evidence, lay and medical, the Board finds that the Veteran's lumbar spine disability results in radiculopathy to the lower extremities. The lower extremity symptoms are primarily sensory in nature and compatible with an incomplete paralysis of the sciatic nerve that is no more than mild in degree. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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. 38 C.F.R. § 4.124a. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Mild incomplete paralysis warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. An 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.121a, Diagnostic Code 8520 (2013). Accordingly, as the Veteran's impairment is sensory and supports a finding of mild incomplete paralysis, the Board finds that the Veteran is entitled to service connection and a separate 10 percent rating for radiculopathy of each leg under Diagnostic Code 8520. As noted above, an August 2011 note revealed that EMG/NCS were normal. The Board finds no evidence of organic changes, such as muscle atrophy or trophic changes, or other objective findings that would warrant a finding of more than mild incomplete paralysis. This grant encompasses the Veteran's bilateral hip and leg claims, ultimately requested to be considered as a single claim for radiculopathy. In sum, the Board finds that a rating greater than 20 percent is not warranted for the service-connected lumbar spine degenerative disc disease and chronic muscular strain with buttock muscle strain. The Board further finds that service connection and separate 10 percent ratings, but not greater, are warranted for the lower extremity radiculopathy. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration As a final matter, the Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board acknowledges that, throughout the above rating period, the Veteran complained that his back problems interfered with his ability to work. The Board notes that the schedular criteria on which the Veteran's ratings are predicated are designed to compensate for average impairments in earning capacity resulting from service-connected disability. 38 U.S.C.A. § 1155 (West 2002). Here, the rating criteria and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 describe the Veteran's disability level and symptomatology, and the rating criteria provide for additional or more severe symptoms than currently shown by the evidence based on limited motion, incapacitating episodes and additional neurological impairment. Thus, the Board finds his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. As a final point, the Board notes that there is no indication that the Veteran is unemployed, nor is there evidence or argument that the Veteran's lumbar spine disability and radiculopathy renders him unemployable. As such, a claim for a TDIU due to the service-connected disability under consideration has not reasonably been raised, and no action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is required. ORDER An initial disability rating in excess of 20 percent for lumbar spine degenerative disc disease and chronic muscular strain with buttock muscle strain is denied. Service connection and a separate 10 percent rating for right lower extremity radiculopathy (also claimed as right leg and hip disability) is granted. Service connection and a separate 10 percent rating for left lower extremity radiculopathy (also claimed as left leg and hip disability) is granted REMAND After a review, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for a right knee disability. The Veteran claims service connection for a right knee disability, to include as secondary to the service-connected lumbar spine disability. When the case was previously before the Board in February 2011 it was noted that the VA examiner in October 2008 diagnosed chronic synovitis of the right knee and opined that the Veteran's right knee disability was totally separate from his back disability, and as such, it was less likely than not that the right knee problem was caused by the back or by military service. However, secondary service connection can be established by evidence demonstrating the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case was remanded for additional examination and opinion. Pursuant to the remand instructions, the Veteran underwent a VA examination in February 2011. Following a review of the claims file and an examination of the Veteran, the examiner diagnosed right knee anserine bursitis and opined that the disability was not caused by or related to service or, presumably, the lumbar spine disability, because there was no clinical correlation. The examiner did not provide an assessment as to whether right knee disability was aggravated by service-connected lumbar spine disability. Accordingly, the Board finds that an addendum to the February 2011 examination is needed regarding whether the Veteran's right knee disability has been aggravated by his service-connected lumbar spine disability with bilateral radiculopathy of the lower extremities. On remand, relevant ongoing medical records should also be obtained, to include any VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dated after July 2012. 2. Return the claims file to the VA examiner who conducted the February 2011 examination, if available, to obtain an addendum opinion. If the original examiner is not available, forward the claims file to an appropriate examiner to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should provide an addendum opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected lumbar spine and lower extremity radiculopathy permanently worsen his right knee disability beyond normal progress (versus temporary exacerbation). If the right knee disability is permanently worsened beyond normal progression (aggravated) by the service-connected back disability and radiculopathy, then the examiner should attempt quantify the degree of such aggravation beyond the baseline level of right knee disability, if possible. The examiner should provide a rationale for the opinion expressed. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2013). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs