Citation Nr: 1800484 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-04 852A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, status post lumbar fusion. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee. 3. Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Everett L. McKeown, attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from June 1961 to June 1964 and from January 1965 to February 1968, however, by way of a January 1970 determination, VA found that only his period of service from June 1961 to June 1964 was considered honorable service. His service from January 1965 to February 1968 was determined to be dishonorable for VA purposes. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2010, the RO denied a claim for a TDIU. In September 2011, the RO denied claims for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, status post lumbar fusion, and a rating in excess of 10 percent for degenerative joint disease of the right knee. In April 2012, the RO granted service connection for left lower extremity radiculopathy, evaluated as 10 percent disabling. In September 2015, the Veteran testified at a personal hearing before a Veterans Law Judge who is no longer at the Board. A transcript is of record. In November 2015, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise the case would reassigned. In December 2015, the Veteran responded that he did not want another hearing. Thus, the Board will proceed with the matters on appeal. 38 U.S.C. § 7107 (c) (2014); 38 C.F.R. § 20.707 (2017). In February 2016, the Board remanded the claims for additional development. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine, status post lumbar fusion, is shown to have been productive of complaints of pain; range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion, etc., does not show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; IVDS is not shown. 2. The Veteran's service-connected degenerative joint disease of the right knee is shown to have been productive of complaints of pain, and some limitation of motion, but not flexion limited to 30 degrees, or extension limited to 15 degrees; or ankylosis, a malunion of the tibia and fibula, or dislocation. 3. The Veteran's service-connected left lower extremity radiculopathy is not shown to have been productive of moderate incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine, status post lumbar fusion, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5242 (2017). 2. The criteria for a rating in excess of 10 percent for service-connected degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258, 5259, 5260, 5261, 5262 (2017). 3. The criteria for an initial evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings The Veteran asserts that he is entitled to increased ratings for his service-connected degenerative disc disease of the lumbar spine, status post lumbar fusion, degenerative joint disease of the right knee, and left lower extremity radiculopathy. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155 (2014); 38 C.F.R. § Part 4 (2017). Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in a veteran's favor. 38 U.S.C. § 5107(b). With regard to the claim for an initial evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy, the Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Back With regard to the history of the disability in issue, the Veteran's service treatment records show that in 1964, he reported an injury to his back while lifting a foot locker. Following separation from service, in February 2009, the Veteran underwent an L5-S1 poster lumbar interbody fusion, posterolateral fusion L5-S1, right L4 hemilaminectomy and decompression of the lateral recess, right lateral discectomy, insertion of unilateral Stryker cage, right to left, 8 x 10 x 25 millimeter with autologous bone, and sextant percutaneous pedicle screw instrumentation L5-S1. See 38 C.F.R. § 4.1 (2017); Gulf Breeze Hospital operative report, dated in February 2009. In November 2008, the RO granted service connection for degenerative disc disease lumbar spine with lumbar strain, evaluated as 10 percent disabling. In September 2009, the RO granted a temporary total evaluation for the period from February 30, 2009 to April 30, 2009, followed by a 20 percent rating effective May 1, 2009. See 38 C.F.R. § 4.29 (2017). In November 2010, the Veteran filed a claim for an increased rating. In September 2011, the RO denied the claim. The Veteran has appealed. Under 38 C.F.R. § 4.71a, DC 5237 and DC 5242 (see also DC 5003), lumbosacral strain and degenerative arthritis of the spine) are rated under the "General Rating Formula for Diseases and Injuries of the Spine." The General Rating Formula provides that an evaluation of 20 percent 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 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 (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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The only ranges of motion for the Veteran's spine during the time period in issue are as follows: the Veteran's back had flexion to 70 degrees (January 2011 VA examination report), flexion to 80 degrees (February 2012 VA disability benefits questionnaire) (DBQ), and flexion to 85 degrees (March 2017 VA DBQ. The March 2017 VA DBQ shows that the examiner determined that there was no ankylosis. The Board finds that a rating in excess of 20 percent is not warranted. There is no evidence to show forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that the Veteran has ankylosis of the entire thoracolumbar spine. DC 5237; General Rating Formula. In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes", whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a 40 percent rating is warranted 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. See also 38 C.F.R. § 4.71a, DC 5293. In this case, the most recent and probative evidence on this issue is the March 2017 VA DBQ, which shows that the examiner determined that the Veteran does not have IVDS. Although the February 2012 VA examination report indicates that the Veteran has IVDS, the report shows that the examiner indicated that the Veteran's claims file had not been reviewed. The February 2012 VA examination report further shows that the examiner indicated that there were no incapacitating episodes over the past 12 months due to IVDS. In summary, the finding of IVDS in February 2012 is unsupported by the totality of the medical evidence, to include the March 2017 VA DBQ. See also January 2011 VA examination report (showing that there were no incapacitating episodes, and that there was no reported bed rest and treatment during the last 12 months). An increased rating is therefore not warranted based upon IVDS. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"); Boggs v. West, 11 Vet. App. 334, 344 (1998) (holding that the Board may adjudge a more recent medical opinion to have greater probative value, particularly where the subsequent examiner had additional evidence available in rendering the opinion). The Board has also considered whether an increased rating could be assigned under 38 C.F.R. §§ 4.40 and 4.45, on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9- 98, 63 Fed. Reg. 56704 (1998). Overall, VA progress notes and private treatment reports show multiple treatments for complaints of back pain. Private treatment reports from Dr. K.B. contain multiple findings that his gait was coordinated and smooth. The January 2011 VA examination report shows that the Veteran reported that he has retired in 1996 from work as a brick mason. The Veteran took Lortab two to three times a day for back pain, and over-the-counter "goody powder" as needed for back pain. The Veteran complained of stiffness, lack of endurance, and said that he used a single-prong walking cane and a brace. He denied swelling, weakness, and instability, and indicated that he was pain free. He complained of severe flare-ups two to three times a week, lasting up to 15 minutes, or until he could get off his feet. The diagnosis was degenerative disc disease, lumbar spine, status post lumbar fusion at L5-S1. He said that he could walk up to 200 yards, or for ten minutes. The examiner indicated that since the Veteran was retired, findings as to the effects on his usual occupation were not applicable. On examination, posture and gait were normal. There was no atrophy. Toe walk, heel walk, and heel-toe walk, were normal. After three repetitions, flexion was to 70 degrees. There were no spasms. There was no guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability or pertinent abnormal weight bearing, and no loss of function with repetitive use; loss of function due to flare-ups could not be determined without resorting to speculation. The examiner stated that there was moderate functional limitation. The February 2012 back DBQ shows the following: the Veteran stated that he had retired in 2009. His medications include Lortab, 10 milligrams, 1 prn (as occasion requires) for back pain, with no side-effects. The Veteran complained of recurrent pain radiating to his legs with numbness, and a sensation of pins and needles off and on, on a daily basis. He also reported having stiffness, and back pain with prolonged sitting and driving. He complained of flare-ups manifested by sharp pain, caused by activity, that lasted a short duration. He asserted that he was limited to lifting five pounds, and that he wears a back brace daily. On examination, there was pain on flexion at 75 degrees. Upon repetitive motion with three motions, flexion was to 80 degrees. There was no additional limitation of motion of the thoracolumbar spine following repetitive use testing. There was functional loss in the form of less movement than normal, weakened movement, and pain on movement. There was no guarding or muscle spasm, or muscle atrophy. The Veteran constantly used a brace, and regularly used a cane. The Veteran's ability to work was impacted to the extent that he was limited to sedentary work, and unable to sit or stand for a prolonged time. The diagnosis was degenerative disc disease, status post fusion L5-S1, with left lower extremity radiculopathy. The March 2017 back DBQ shows the following: the examiner indicated that the Veteran's e-folder (VBMS or Virtual VA) had been reviewed. The Veteran complained of daily aching, and throbbing low back pain with radiation down his left leg. He reported low back muscle spasms with back stiffness following prolonged sitting, and pain with prolonged standing and driving. He asserted that he was limited to lifting five pounds. He stated that he wears a back brace regularly. There was no evidence of pain on weight bearing. Range of motion testing resulted in pain, but it did not result in functional loss. Upon repetitive use testing, there was no additional loss of function, or range of motion, after three repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use of a period of time, or with flare-ups. There was no muscle atrophy. There was no impact on the Veteran's ability to work. The diagnosis was degenerative arthritis of the spine. In summary, while there is some evidence of pain, and limitation of motion, the evidence does not otherwise show functional loss due to pain to warrant a rating in excess of 20 percent. Pain alone does not constitute a functional loss under VA regulations. Mitchell. 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 43; see also 38 C.F.R. § 4.40. Here, even considering the Veteran's pain, he is shown to have had at least 70 degrees of flexion, which is well in excess of the 30 degrees required for a rating in excess of 20 percent. When the range of motion findings, and the evidence showing functional loss are considered, to include the findings (or lack thereof) pertaining to neurologic deficits, muscle strength, and muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant a rating in excess of 20 percent. The Board therefore finds that the criteria for a rating in excess of 20 percent are not shown to have been met, and the claim must be denied. For the entire time period in issue, the evidence is insufficient to show that the Veteran has associated neurological abnormalities, other than left lower extremity radiculopathy, for which service connection has been granted. See General Rating Formula, Note 1. Right Knee With regard to the history of the disability in issue, the Veteran's service treatment records show that he sustained a right knee injury while playing softball in 1961. An X-ray revealed effusion. In February 2005, the RO granted service connection for degenerative joint disease of the right knee, evaluated as 10 percent disabling under 38 C.F.R. § 4.71, Diagnostic Code 5010. In September 2007, the Veteran filed a claim for an increased rating. In February 2008, the RO denied the claim. For both of the RO's decisions, there was no appeal, and the RO's decisions became final. See 38 U.S.C.A. § 7105(c) (2014). In November 2010, the Veteran filed a claim for an increased rating. In September 2011, the RO denied the claim. The Veteran has appealed. The Board must consider the possibility of a higher rating under all potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Veteran's right knee disability is currently rated as 10 percent disabling, pursuant to 38 C.F.R. § 4.71a, DC 5010. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, degenerative arthritis is rated on the basis of limitation of motion for the specific joint involved. Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated as for degenerative arthritis under DC 5003. Under 38 C.F.R. § 4.71a, DC's 5260 and 5261, which address limitation of motion of the knee, a 20 percent rating will be assigned for flexion limited to 30 degrees or extension limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. Under 38 C.F.R. § 4.71a, DC 5258, [d]islocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. In Lyles v. Shulkin, No. 16-0994 (Nov. 29, 2017), the U.S. Court of Appeals for Veterans Claims held that under 38 C.F.R. § 4.71a separate evaluation may be assigned for meniscal problems under DCs 5258 or 5259, even when ratings are in effect under DCs 5257 and 5261. Cf. VA Adjudication Procedure Manual M21-1 (M21-1), III.iv.4.A.4.i. and j. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. The Board finds that a rating in excess of 10 percent under DC 5260 or DC 5261 is not warranted for the right knee. The recorded ranges of motion for the right knee do not show that the Veteran has ever been found to have flexion limited to 30 degrees or extension limited to 15 degrees. In this regard, the only recorded ranges of motion are as follows: the Veteran's right knee had extension to 0 degrees, and flexion to 110 degrees (January 2011 VA examination report); extension to 0 degrees, and flexion to 100 degrees (February 2012 VA DBQ); and extension to 0 degrees, and flexion to at least 100 degrees (March 2017 VA DBQ). Accordingly, the Board finds that the criteria for a rating in excess of 10 percent under DC's 5260, and 5261 are not shown to have been met, and that an increase under either of these codes is not warranted. In addition, the evidence does not show that the Veteran's right knee is productive of ankylosis, moderate recurrent subluxation or lateral instability, or a malunion of the tibia and fibula. In this regard, the January 2011 VA examination report notes that the Veteran's right knee ligaments were all normal, and that there was no knee instability. The February 2012 VA DBQ shows that there was no right knee anterior instability, posterior instability, or medial-lateral instability. The March 2017 VA DBQ shows that there was no history of right knee patellar subluxation or dislocation, recurrent subluxation, or recurrent effusion, and that there was no right knee anterior instability, posterior instability, medial instability, or lateral instability. The examiner indicated that there was no right knee joint instability. Although the Board has considered the Veteran's complaints of right knee instability, and "giving out," and that he wears a brace, the objective evidence based on clinical testing has simply not detected any right knee instability. The Board has determined that the findings as to the lack of right knee instability in the VA examination reports warrant greater probative weight than the Veteran's complaints, as those findings were based on the results of objective clinical testing. Accordingly, a separate rating is not warranted under DC 5257. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). The evidence is insufficient to show that the Veteran has a right knee meniscal condition. In this regard, the February 2012 VA DBQ shows that the examiner noted that there was no history of a meniscal condition, or meniscal surgery, to include a meniscectomy, and that the Veteran does not have, and has never had, a meniscus (semilunar cartilage) condition. The March 2017 VA DBQ shows that the examiner indicated that the Veteran does not have, and has never had, a meniscus (semilunar cartilage) condition. Accordingly, a separate rating is not warranted under DC 5258 or DC 5259. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). Here, even considering the findings as to the onset of pain, the criteria for a rating in excess of 10 percent are not shown to have been met under DCs 5260 and 5261. See Powell v. West, 13 Vet. App. 31, 34 (1999) (painful motion should be considered to be limited motion, even though a range of motion may be possible beyond the point when pain sets in). The January 2011 VA examination report notes minimal degenerative findings, with no change from a prior examination in February 2008. There was no malalignment, spasms, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, or pertinent abnormal weight bearing. Loss of function due to flare-ups could not be determined without resort to mere speculation. The diagnosis was degenerative joint disease, right knee, with minimal functional limitation. The February 2012 VA DBQ shows that the Veteran complained of recurrent knee pain with occasional swelling and stiffness, and that he was unable to use stairs, and unable to kneel or squat. He complained of pain upon prolonged sitting or standing. He denied locking or popping. He said that he wore a brace and used a cane regularly. There was no history of knee surgery. Following repetitive use testing, there was no additional loss in the range of motion. There was less movement than normal, weakened movement, and pain on movement, but there was no functional loss in the right lower extremity. Strength was 3/5 on flexion and extension. There was no impact on the Veteran's ability to work. An X-ray was noted to be normal. The diagnosis was degenerative joint disease. A VA peripheral nerves DBQ, dated in February 2014, shows that strength was 5/5 for right knee extension. There was no muscle atrophy. The Veteran ambulated with a slight limp on the right, and was supported by a single-prong cane in his left hand, due to reported left hip and back problems. The March 2017 VA DBQ shows that the Veteran complained of right knee popping, locking, giving out, and swelling, and a reduced range of motion. He complained that it was painful to use stairs, and that he was unable to kneel or squat. He reported moderate pain on active and passive ranges of motion. There was no history of knee surgery, and there had not been any recent right knee injections. Following repetitive use testing, there was no additional loss of range of motion, or functional loss. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use of a period of time, or with flare-ups. There was less movement than normal "due to ankylosis, adhesions, etc." Strength was 4/5 on flexion and extension. There was no ankylosis, or muscle atrophy. There was no impact on the Veteran's ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). An X-ray was noted to show maintained medial and lateral compartments without evidence of degenerative change, a normal patellofemoral compartment, and an impression noting a normal radiograph of the right knee. The diagnosis was knee joint osteoarthritis. In summary, the Veteran's functional limitation was characterized as minimal in January 2011. In February 2012, there was no additional loss in the range of motion following repetitive use testing, and there was no impact on the Veteran's ability to work. In March 2017, there was no additional loss of range of motion, or functional loss following repetitive use testing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use of a period of time, or with flare-ups, and there was no impact on the Veteran's ability to perform any type of occupational task. Given the foregoing, even taking into account the complaints of pain, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, or neurological impairment or incoordination, such that when the ranges of motion in the right knee are considered together with the evidence of functional loss due to knee pathology, the evidence does not support a conclusion that the loss of motion in the right knee more nearly approximates the criteria for a rating in excess of 10 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. In VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005), General Counsel determined that separate disability ratings could be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint. Here, the ranges of motion in the right knee do not meet the criteria for even a 0 percent rating under DCs 5260 and 5261, i.e., flexion limited to 60 degrees or extension limited to 5 degrees. A separate rating for limitation of knee motion is therefore not warranted. Additionally, for all analyses of functional loss due to pain, supra, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14 (2017); VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). Radiculopathy, Left Lower Extremity The Veteran's service-connected left lower extremity radiculopathy has been evaluated as 10 percent disabling, with an effective date of February 7, 2012. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve 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, DC's 8510 through 8540 (2017). Neuritis of the peripheral nerves, 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 rating equal to severe, incomplete, paralysis. The maximum rating that 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 (2017). Neuralgia of a peripheral nerve 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. The term incomplete paralysis, with peripheral nerve injuries, 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, combine with application of the bilateral factor. 38 C.F.R. § 4.124 (2017). The criteria for evaluating the severity or impairment of the sciatic nerve is set forth under Diagnostic Codes 8520, 8620, and 8720. Under DC 8520, a 10 percent rating requires mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. Diagnostic Codes 8620 and 8720 address the criteria for evaluating neuritis and neuralgia of the sciatic nerve, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, DC's 8520, 8620, 8720 (2017). The February 2012 VA back DBQ was discussed supra. This report shows that the Veteran complained of pain, with radiation into his legs, and numbness, and a "pins and needles" sensation, off and on, on a daily basis. Strength of left knee flexion and extension, left ankle plantar flexion, left ankle dorsiflexion, and left great toe extension, was 3/5. There was no muscle atrophy. Reflexes were 1+ at the left knee and left ankle. A sensory examination was normal at the upper anterior thigh (L2) and left thigh and knee (L3/4), and decreased at the left lower leg/ankle (L4/L5/S1) and left foot/toes (L5). There was radicular pain, but not constant pain. The left lower extremity had moderate intermittent pain, and paresthesias and/or dysesthesias, and mild numbness. The examiner characterized the severity of the Veteran's left-sided radiculopathy as mild. A VA peripheral nerves DBQ, dated in February 2014, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran complained of a near-constant sensation of pins and needles at the lower part of his leg and foot. He also reported some weakness and tightness with occasional pain, aggravated by walking. His left lower extremity was noted not to be productive of constant pain. There was moderate intermittent pain, and paresthesias and/or dysesthesias. There was mild numbness. Strength was 5/5 for left knee extension, left ankle plantar flexion, and left ankle dorsiflexion. There was no muscle atrophy. Reflexes were 2+ at the left knee, and 1+ at the left ankle. A sensory examination was normal for the left upper anterior thigh (L2), the left thigh and knee (L3/4), and the left lower leg/ankle (L4/L5/S1), and decreased at the left foot/toes (L5). The Veteran ambulated with a slight limp on the right, and was supported by a single-prong cane in his left hand due to reported left hip and back problems. There was incomplete paralysis of the left sciatic nerve of mild severity. There was no impact on his ability to work. His left lower extremity was noted to be productive of mild functional limitation. The diagnosis was paralysis of the sciatic nerve. The March 2017 VA back DBQ shows that on examination, left knee extension strength was 4/5. Strength of left hip flexion, left ankle plantar flexion, left ankle dorsiflexion, and left great toe extension was 5/5. There was no muscle atrophy. Reflexes were 1+ at the left knee, and left ankle. A sensory examination was normal for the left upper anterior thigh (L2), the left thigh and knee (L3/4), the left lower leg/ankle (L4/L5/S1), and the left foot/toes (L5). The left lower extremity had no constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and no numbness. The examiner characterized the severity of the Veteran's left-sided radiculopathy as mild. The Board finds that the Veteran's radiculopathy of the left lower extremity is not shown to have been manifested by moderate incomplete paralysis of the sciatic nerve, such that an initial evaluation in excess of 10 percent for the left lower extremity is warranted under DC 8520. Although there have been a range of findings noting, at times, some moderate symptoms, these are not consistently shown and overall the findings do not indicate moderate symptoms. In this regard, other findings have ranged from normal to mild. The most recent VA DBQ shows a normal sensory examination throughout the lower left extremity, and primarily 5./5 strength, except for 4/5 strength at the left knee. All three VA examiners concluded that overall, the Veteran's lower left extremity symptoms are mild. Based on the foregoing, the Board finds that the evidence is insufficient to show that the Veteran's radiculopathy of the left lower extremity is manifested by symptomatology that more nearly approximates the criteria for an initial evaluation in excess of 10 percent under DC 8520, and that the preponderance of the evidence is against an initial increased evaluation. The Board also concludes that the evidence does not demonstrate that the Veteran's radiculopathy of the left lower extremity is shown to have been manifested by moderate incomplete neuritis or neuralgia of the sciatic nerve, such that an increased rating is warranted under DC 8620 or DC 8720. In this regard, there is no evidence of neuritis or neuralgia. Given the aforementioned medical evidence, to include the findings (or lack thereof) as to strength, sensation, and reflexes, the Board finds that it is not shown that the Veteran's service-connected radiculopathy of the left lower extremity has resulted in moderate neuritis or neuralgia of the sciatic nerve. An initial evaluation in excess of 10 percent for the left lower extremity is therefore not warranted under DC's 8620 or 8720. Conclusion The Board has considered the Veteran's statements that he should be entitled to increased ratings. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his back, right knee, and left lower extremity radiculopathy symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant increased ratings. However, disability ratings are assigned by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities in issue are evaluated, are more probative than the Veteran's assessment of the severity of his disabilities. The VA examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disabilities. In deciding the Veteran's claims, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to increased ratings for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that any of the Veteran's ratings should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the time the Veteran filed the claim to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of any of the claimed disabilities such that an increased rating is warranted. The issue of whether referral for extra-schedular consideration is warranted must be argued by the claimant or reasonably raised by the record. Yancy v. McDonald, 27 Vet. App 484 (2016); see also Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, notwithstanding the Board's referral of a TDIU based on an extraschedular basis, neither the Veteran nor the record raises the issue of an extra-schedular rating for any of the disabilities in issue. See generally Kellar v. Brown, 6 Vet. App. 157, 162 (1994) ("the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16"). In reaching these decisions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist In this case, the Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. The Veteran has been afforded examinations. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). In February 2016, the Board remanded these claims. The Board directed that the Veteran's records be obtained from the U.S. Railroad Retirement Board, the Social Security Administration (SSA), Dr. G[redacted], and the Gulf Coast Veterans Health Care System, as well as all records from any other sufficiently identified VA facility. The Veteran's vocational rehabilitation folder were also to be obtained. In October 2016, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand instructions. That same month, the SSA stated that it did not have any records for the Veteran. Records from the U.S. Railroad Retirement Board, from Dr. G, and from the Gulf Coast Veterans Health Care System, were subsequently obtained. The Veteran's vocational rehabilitation folder was also subsequently obtained. The Board further directed that the Veteran be afforded examinations of his back, and right knee, and that he be afforded a VA Social and Industrial Survey. This has been done. Given the foregoing, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER A rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine, status post lumbar fusion, is denied. A rating in excess of 10 percent for service-connected degenerative joint disease of the right knee is denied. An initial evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy is denied. REMAND With regard to the issue of entitlement to a TDIU, service connection is currently in effect for service-connected degenerative disc disease of the lumbar spine, status post lumbar fusion, evaluated as 20 percent disabling, degenerative joint disease of the right knee, evaluated as 10 percent disabling, and left lower extremity radiculopathy, evaluated as 10 percent disabling. The Veteran's combined rating is 40 percent. Given the foregoing, the Veteran does not meet the percentage requirements of 38 C.F.R. § 4.16 (a) for TDIU. Therefore, the claim for a TDIU must be considered under the criteria of 38 C.F.R. § 4.16 (b) (2017). Reports associated with the U.S. Railroad Retirement Board show that in 1995, the Veteran asserted that he was disabled, in part, due to a back disability. A 1996 report notes chronic low back pain syndrome secondary to a previous injury, with decrease in motor strength of the right leg. In March 2005, he was noted to be receiving a disability retirement annuity based on a finding of total and permanent disability. A statement from a VA physician, Dr. M.C., dated I June 2010, shows that she asserts that the Veteran is not able to work due to the severity of his back problems. A statement from VA's vocational rehabilitation & employment office (VA R&E), dated in April 2010, shows that the Veteran was denied VA R&E services because it was determined that "it is not reasonable to expect you to be able to train for or get a suitable job at this time." A statement from A.K., Ph.D., of Disability Consultants, dated in July 2011, shows that she asserts that the Veteran is "totally disabled," and "is unable to maintain any gainful employment." See also Dr. A.K.'s statement, dated in August 2011. In a VA Social Work and Industrial Survey, dated in March 2017, the examiner concluded that it is at least as likely as not that the Veteran's service-connected disabilities would, in combination or individually, and without regard to any nonservice-connected disabilities, be sufficient to preclude him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. The Board cannot assign an extra-schedular rating in the first instance; it must first specifically determine whether to refer a case to the Director of C&P Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). On remand, the issue of entitlement to a TDIU on an extraschedular basis should be referred to the Director, Compensation and Pension, for an opinion, followed by adjudication of this issue. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's case to the Director, Compensation Service (C&P), for the consideration of TDIU on an extraschedular basis under 38 C.F.R § 4.16 (b). 2. After receiving a response from the Director of C&P and after completing any further development warranted by the record, adjudicate the claim of entitlement to a TDIU on an extraschedular basis. 3. If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC. The Veteran 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 appeal must be afforded expeditious treatment. The law requires that all matters 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. §§ 5109B, 7112 (2014). ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs