Citation Nr: 18145705 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 09-38 147 DATE: October 29, 2018 ORDER Entitlement to an initial compensable disability rating for service-connected retropatellar pain syndrome of the left knee, prior to February 8, 2011, and greater than 10 percent, thereafter, is denied. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. Entitlement to an effective date earlier than September 30, 2009, for the assignment of a 40 percent disability rating for service-connected laminectomy and discectomy residuals of the lumbosacral spine is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU). FINDINGS OF FACT 1. Prior to February 8, 2011, the service-connected left knee disability has been manifested by objective findings of full extension and flexion; no X-ray evidence of arthritis; and no clinical evidence of incoordination, locking, instability, ankylosis, or dislocation of the semilunar cartilage. 2. From February 8, 2011, the service-connected left knee disability has been manifested by objective findings of full extension and flexion; no X-ray evidence of arthritis; and no clinical evidence of incoordination, locking, instability, ankylosis, or dislocation of the semilunar cartilage. 3. Over the course of the entire period on appeal, the service-connected bilateral hearing loss has been manifested by no more than Level I hearing acuity in each ear. 4. The evidence fails to demonstrate that an increase in the severity of the Veteran’s service-connected laminectomy and discectomy residuals of the lumbosacral spine occurred prior to the September 30, 2009, VA examination. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for service-connected retropatellar pain syndrome of the left knee, prior to February 8, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.17a, Diagnostic Codes 5256 to 5263. 2. The criteria for disability rating greater than 10 percent for service-connected retropatellar pain syndrome of the left knee, from February 8, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.17a, Diagnostic Codes 5256 to 5263. 3. The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for an effective date earlier than September 30, 2009, for the assignment of a 40 percent disability rating for service-connected laminectomy and discectomy residuals of the lumbosacral spine have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1970 to October 1974, October 1976 to October 1979, and January 1983 to January 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2008 and October 2009 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas. The Veteran had been scheduled to testify at a Board hearing in March 2018, however, he failed to appear as scheduled. The issue of entitlement to a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of unemployability has been raised by the record, the issue of entitlement to a TDIU is before the Board. Increased Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. 1. Entitlement to an initial compensable disability rating for service-connected retropatellar pain syndrome of the left knee prior to February 8, 2011, and greater than 10 percent, thereafter. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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); 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). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement that affects stability, standing, and weight-bearing. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Consideration must include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, will only be considered in conjunction with diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s left knee disability has been rated under Diagnostic Code 5299-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be assigned as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be 99 for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. The left knee disability is rated as noncompensable from February 8, 2008, and as 10 percent disabling as of February 8, 2011. Under Diagnostic Code 5260, flexion that is limited to 60 degrees is noncompensable; flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating; and flexion that is limited to 15 degrees warrants a 30 percent disability rating. A 30 percent disability rating is the highest available under Diagnostic Code 5260. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. A 50 percent disability rating is the highest available under Diagnostic Code 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Standard range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Also of potential relevance is Diagnostic Code 5257. Under this diagnostic code provision, a 10 percent disability rating is warranted where there is slight recurrent subluxation or lateral instability of the knee. A 20 percent disability rating is warranted where the recurrent subluxation or lateral instability of the knee is moderate. The maximum 30 percent disability rating is warranted where there is severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Separate ratings may be assigned for a knee disability under Diagnostic Codes 5257 and 5010 (for arthritis due to trauma) where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 and VAOPGCREC 9-98. Additionally, VA’s General Counsel has determined that separate disability ratings may be assigned for limitation of flexion and extension of the same joint. VAOPGCPREC 09-2004 (September 17, 2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. A VA joints examination report dated in November 2008 shows that the Veteran, in pertinent part, reported left knee pain since service. Physical examination of the left knee revealed flexion to 140 degrees and extension to zero degrees. There was no additional limitation of motion on repetitive use. Stability was intact. There was no ankylosis. The diagnosis was retropatellar pain syndrome with residuals. A VA general medical examination report dated in February 2011 shows that the Veteran reported intermittent pain without severe flare-ups impairing function. There were no incapacitating episodes. He did not use a brace for ambulation. Ambulation was described as being able to stand for a half hour before needing a break. Physical examination shows that the left knee was tender diffusely, more so at the infrapatellar area, without effusion. Lachman and McMurray tests were negative. Range of motion was to 120 degrees with end-range flexion pain. There was no additional limitation with repetitive use. The diagnosis was retropatellar pain syndrome of the left knee. The examiner noted that the Veteran had not been employed since March 2008 wherein he had worked as a security officer due to difficulties with continued standing. The examiner added that a modified environment would work for him. A VA examination report dated in November 2017 shows that the Veteran was diagnosed with patellofemoral pain syndrome of the left knee. The Veteran described experiencing flare-ups of pain and the knee giving way at times. Physical examination of the left knee reveled normal range of motion of 140 degrees of flexion and zero degrees of extension. Pain was noted during flexion, but did not result in or cause functional loss. There was no objective evidence of pain on weight bearing, or localized tenderness or pain on palpation. There was evidence of crepitus. Following repetitive use testing, the examination was said to be medically inconsistent with the Veteran’s describing functional loss with repetitive use over time. There was no pain on passive motion of the joint and no pain when the joint was used in non-weight-bearing. The examiner explained that the Veteran’s subjective reports of symptoms exceeded objective findings. The examiner could not state whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time without mere speculation. The examination was not being conducted during a flare-up. There were no additional factors contributing to the disability. Muscle strength was within normal limits. There was no ankylosis. There was no instability, subluxation, or recurrent effusion. The Veteran was said to have never had a meniscal condition. There was no use of an assistive device. The condition did not impact the Veteran’s occupational functioning. Prior to February 8, 2011, the Veteran’s left knee disability was not shown to be manifested by flexion limited to 45 degrees or extension limited to 10 degrees such that an increased disability rating would be assigned under Diagnostic Codes 5260 or 5261. There is no objective evidence of instability, thus, a higher disability rating under Diagnostic Code 5257 is not warranted. Additionally, there is no evidence of dislocation of semilunar cartilage (Diagnostic Code 5258); symptomatic removal of semilunar cartilage (Diagnostic Code 5259); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (5263). 38 C.F.R. § 4.71a. As such, entitlement to an initial compensable disability rating prior to February 8, 2011, is not warranted. Since February 8, 2011, the Veteran’s left knee disability was not shown to be manifested by flexion limited to 30 degrees or extension limited to 15 degrees such that an increased disability rating would be assigned under Diagnostic Codes 5260 or 5261. There continues to be no objective evidence of instability, thus, a higher disability rating under Diagnostic Code 5257 is not warranted. Additionally, there is no evidence of dislocation of semilunar cartilage (Diagnostic Code 5258); symptomatic removal of semilunar cartilage (Diagnostic Code 5259); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). 38 C.F.R. § 4.71a. While the RO in March 2011 assigned the increased 10 percent disability rating based on a major joint that displays objective evidence of painful motion, the medical evidence of record has not shown that the Veteran has manifested arthritis of the joint. Nonetheless, the criteria for a disability rating higher than the assigned 10 percent disability rating from February 8, 2011, have not been met. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. The objective findings, which have been largely consistent throughout the rating period on appeal, are found to outweigh his subjective reports in this case. For example, while the Veteran reported episodes of giving way of the left knee, the record simply does not contain objective findings supporting an evaluation based on instability. In sum, the Board must conclude that the Veteran’s left knee disability more nearly approximates the criteria for the assignment of an initial noncompensable disability rating prior to February 8, 2011, and of a 10 percent disability rating thereafter. 2. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular ratings are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). Where there is an exceptional pattern of hearing loss of 55 decibels or more in each of the four specified frequencies, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran asserts that his bilateral hearing loss is more severe than reflected by the currently assigned noncompensable disability rating. Specifically, he describes increased difficulty understanding conversation. A VA examination report dated in November 2008 shows that the Veteran reported difficulty with hearing ever since his period of active service. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 20 15 30 23 LEFT 25 25 15 35 25 Speech audiometry revealed speech recognition ability of 98 percent in each ear. The diagnosis was normal hearing for adjudication purposes, bilaterally. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. A VA audio examination report dated in February 2011 shows that the Veteran reported ongoing difficulty with hearing. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 20 40 28 LEFT 25 25 20 45 29 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. The diagnosis was normal to moderate bilateral sensorineural hearing loss with excellent word recognition. The examiner noted that hearing loss alone should not preclude employment. The examiner added that hearing loss of this degree might restrict work in specialized areas which require acute hearing for safety or job performance reasons, but general employability should be possible with proper hearing aids and/or assistive devices. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. A VA audio examination report dated in November 2017 shows that the Veteran reported a decrease in hearing since his last VA examination, with difficulty understanding speech and women’s voices. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 40 55 38 LEFT 30 30 30 50 35 Speech audiometry revealed speech recognition ability of 100 percent in each ear. The diagnosis was bilateral sensorineural hearing loss. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. The Board notes that the VA examination reports specifically addressed the functional limitations caused by the Veteran’s hearing loss, indicating that there was difficulty understanding speech and women’s voices, but that the hearing loss alone should not preclude employment. To the extent that the Veteran reports that his acuity is worse than rated, the Board has considered his statements. This evidence is both competent and credible with regard to reporting his hearing acuity. Indeed, the more recent, November 2017 audiogram shows a slight threshold shift that what was previously demonstrated. However, the additional loss of hearing does not rise to the level that meets the criteria for the assignment of a compensable rating for hearing loss according to the rating scheduled. The schedular criteria are predicated on objective audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. Accordingly, the claim for an initial compensable disability rating for the bilateral hearing loss must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine to the extent noted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an effective date earlier than September 30, 2009, for the assignment of a 40 percent disability rating for service-connected laminectomy and discectomy residuals of the lumbosacral spine. The Veteran asserts that he is entitled to an effective date earlier than September 30, 2009, for the assignment of a 40 percent disability rating for his service-connected low back disability. By way of background, service connection was established in April 1996 at which time an initial 20 percent disability rating was assigned effective as of February 1, 1996. In February 2008, the Veteran filed a claim for an increased disability rating. By rating action dated in December 2008, the RO continued the 20 percent disability rating. The Veteran’s low back disability was rated under Diagnostic Code 5243 which provides the criteria for intervertebral disc syndrome of the spine. Intervertebral disc syndrome is rated either under the General Rating Formula or alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher disability rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the preceding 12 months. A 40 percent disability rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the preceding 12 months. The maximum 60 percent disability rating is warranted for incapacitating episodes having a total duration of at least six weeks during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. VA regulations provide that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See Note (1). Disabilities of the spine are also evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The General Rating Formula pertinent to the thoracolumbar spine provides that a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right later rotation is zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. General Rating Formula, Note (2). Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (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). At the time of the December 2008 rating decision, the evidence of record included outpatient treatment records from the Darnall Army Medical Center and Copperas Cove Family Care Clinic showing recurring complaints of and treatment for the service-connected low back disability. A February 2008 radiological examination report shows evidence of degenerative spondylosis and discopathy at level L5-S1. A VA examination report dated in November 2008 shows that the Veteran reported daily pain at a level of three on a scale of 10, radiating down his right posterior thigh into the hamstring muscle, occurring intermittently since a 1993 surgery. He described that it would occur three to four times per week at your present level of activity. He would take pain medication for moderate relief and without significant side effects. The Veteran denied any acute flare-ups of incapacitating back pain in the preceding 12 months. He indicated that he wore a self-prescribed back brace. He was able to operate a motor vehicle, dress, undress, and attend the needs of nature. Physical examination revealed normal posture, gait, curvature, and symmetry. Forward flexion was to 85 degrees; extension to 25 degrees; lateral flexion to 25 degrees, bilaterally; lateral rotation to 25 degrees, bilaterally; all with moderate discomfort. There was no additional limitation of motion and no evidence of increase in painful movement, fatigue, weakness or lack or endurance on repetitive movement. There was objective evidence of painful motion, without acute spasm, weakness, or tenderness. There was no ankylosis and no evidence of muscle spasm, or guarding severe enough to result in an abnormal gait, or abnormal spinal contour. The sensory, motor, and reflex examinations were intact; the Lassegue’s sign was negative. The diagnosis was herniated nucleus pulposus of the lumbosacral spine, status-post surgical repair. The Veteran was then examined in September 2009, at which time physical examination revealed forward flexion was to 30 degrees; extension to 20 degrees; lateral flexion to 30 degrees, bilaterally; lateral rotation to greater than 30 degrees, bilaterally; all with pain throughout forward flexion. There was no additional limitation of motion or function with repetitive use. There was no spasm or tenderness, but there was weakness. There was guarding to forward flexion, decreased lumbar lordosis, and slow, antalgic gait. Neurological examination was within normal limits. The diagnosis was degenerative disc disease, degenerative joint disease, and spinal stenosis of the lumbar spine, and right lumbar radiculopathy (leg) post-operative. As a result of the findings of the significant decrease in range of motion of the lumbosacral spine, in October 2009, the RO assigned a 40 percent disability rating for the low back disability, effective as of the date of the examination. The Veteran timely filed a notice of disagreement as to the assigned effective date of the decision. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. That is, the effective date of an award is fixed in accordance with the facts found, but cannot be earlier than the date of receipt of application. 38 U.S.C. § 5110 (a). An exception to the general rule exists for increased rating claims. In a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010); Hazan v. Gober, 10 Vet. App. 511, 519 (1997); VAOPGCPREC 12-98. As discussed above, the instant matter stems from a February 2008 claim for an increased disability rating for the Veteran’s service-connected low back disability. The Board recognizes the findings of the VA examination report, the Tricare records, and the private medical records of record dated prior to the September 2009 VA examination report, however, these findings do not demonstrate that the Veteran’s disability was manifested at any time by forward flexion of the thoracolumbar spine 30 degrees or less, any ankylosis of the spine, or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the preceding 12 months. As such, the evidence fails to support a finding that it was factually ascertainable that the increase in disability occurred prior to the September 2009 VA examination report. Accordingly, there is no basis upon which to assign an effective date earlier than September 30, 2009, the date on which it was factually ascertainable that an increase in disability had occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400. REASONS FOR REMAND 1. Entitlement to service connection for right knee and bilateral ankle disabilities. The Board finds that additional development is required prior to further adjudication of these issues. In correspondence dated in March 2009, the Veteran indicated that his service treatment records for the periods from October 1976 to October 1979 and from January 1983 to December 1993 had not been associated with his claims file. During a March 2012 VA examination of the Veteran’s ankles, the examiner indicated that the Veteran had reported that several years of service treatment records were missing from his claims file, and that such records probably contained evidence of clinical visits for his ankle symptoms. It does not appear that the agency of original jurisdiction (AOJ) undertook exhaustive efforts to secure the Veteran’s identified service treatment records from all appropriate sources. VA has a duty to request all available and relevant records from federal agencies. See 38 C.F.R. § 3.159 (c)(2), (c)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, efforts to obtain the identified medical records must be undertaken, and if any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. 2. Entitlement to a TDIU. With regard to the issue of entitlement to a TDIU, the Board finds that the claim is inextricably intertwined with the issues being remanded herein, therefore, those issues must be addressed by the AOJ before the Board renders a decision on the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Undertake efforts to obtain the identified service treatment records of the Veteran for the periods from October 1976 to October 1979 and from January 1983 to December 1993 from all appropriate federal sources. (Continued on the next page)   If no records are obtained, the AOJ must prepare a Memorandum of Formal Finding of Unavailability of Service Treatment Records outlining the steps taken to retrieve the identified treatment records, and notify the Veteran and his representative in accordance with VA regulations, giving the Veteran and his representative adequate time to respond. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel