Citation Nr: 0001956 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 94-33 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a low back disability, to include the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). 2. Entitlement to a rating in excess of 10 percent for a right knee disability to include the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD D. A. Saadat, Associate Counsel INTRODUCTION The veteran had active military service from November 1988 to November 1992. The issue on appeal arises from a May 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By this rating decision, the RO, in pertinent part, granted service connection for a low back disability and assigned a 10 percent rating effective from November 1992. By the same rating decision, the RO granted service connection for arthritis of the right knee and assigned a 10 percent rating effective from November 1992. The veteran perfected her appeal concerning the ratings assigned for these service connected conditions, and in March 1997, the Board of Veterans' Appeals (Board) remanded the veteran's claims for additional development. By a July 1999 rating decision, the RO increased the rating for degenerative disc and joint disease of the lumbar spine to 20 percent, effective from November 1992. By the same rating decision, the RO confirmed the 10 percent rating for arthritis of the right knee. A supplemental statement of the case was also issued in July 1999. In November 1999, the veteran submitted records in support of her claim, and waived prior RO consideration of these documents. The issues of entitlement to an increased rating for right knee disability and an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999), with regard to both claims for increased rating, are referenced in the Remand section below. FINDINGS OF FACT 1. The veteran's claims concerning a rating in excess of 20 percent for a low back disability is plausible, and the RO has obtained sufficient evidence for an equitable disposition of this claim. 2. The veteran's degenerative disc disease of the lumbar spine is severe and no greater and is manifested by recurrent attacks with intermittent relief; there is no evidence of unfavorable ankylosis. CONCLUSIONS OF LAW 1. The veteran has stated a well-grounded claim concerning a rating in excess of 20 percent for a low back disability, and the Department has satisfied the duty to assist. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999). 2. A rating of 40 percent rating for degenerative disc disease of the lumbar spine is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.14, 4.31, 4.40, 4.45, 4.71a, Diagnostic Codes 5289, 5293 (1999); VAOPGCPREC 36-97. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records reflect, in pertinent part, that the veteran injured her back in February 1991. In November 1992, the veteran filed a claim concerning, in part, service connection for a back injury. By a May 1993 rating decision, the RO, in pertinent part, granted service connection for a low back disability and assigned a 10 percent rating effective from November 1992. In November 1993, the veteran submitted the report of a private examination conducted in October 1993. The report indicates, in pertinent part, that the veteran generally appeared to be in good health, although she was in mild distress. Flexion of the dorso-lumbar spine was to 60 degrees without pain (90 degrees being normal), extension was to 20 degrees, possibly with pain (20 degrees being normal). Rotation (30 degrees being normal) and lateral flexion (20 degrees being normal) were within normal limits bilaterally, without pain. Straight leg test and Braggards was positive on the left and negative on the right. Fabere Patrick and Milgram's were negative bilaterally, while Soto-Hall was positive bilaterally. Spasm and pain were noted in the L5, sacrum, and S1 areas. On a Form 9 filed in February 1994, the veteran asserted that she was unable to do any pushing, pulling, lifting, or stretching without experiencing back pain and spasm. Lying on her back caused it to stiffen with pain. She was unable to stand or sit upright for a long time without feeling pressure and pain in her back. All of these symptoms were visible from the day of discharge. The symptoms also caused limitations in her day-to-day life, as well as with the activities of her one year old child. As a mother, she should have been able to carry her child from time to time, but when she did, she had to deal with back pain for hours. The veteran underwent an examination for VA purposes in March 1994. The veteran complained of that her lower back hurt her sporadically. Lumbar spine examination revealed that she was able to heel and toe walk without problems. The veteran was able to touch her fingertips at four inches from the floor. She had tenderness to palpation over the lower lumbar spine. The veteran had full extension, lateral bending, and lateral rotation without lumbar pain. An examination of the lower extremities revealed a negative straight leg raising test bilaterally and one plus ankle and knee deep tendon responses which were symmetrical bilaterally. The examiner concluded that this was a normal orthopedic examination of the lumbar spine. By an April 1994 rating decision, the RO confirmed the 10 percent rating for chronic low back strain. In October 1996, the veteran submitted VA medical records in support of her claim for an increased rating. These records reflect, in part, that in July 1994, the veteran sought outpatient treatment for back pain which radiated from her neck to her sacrum and on the left side of the back. Upon examination, it was noted that the back was tender to palpation. There was no edema of the extremities, although the veteran's pain was exacerbated with leg raising. An X- ray of the entire spine revealed no fracture or subluxation. There was a minimal dextroconvex scoliosis of the thoracic spine and minimal narrowing of L5-S1, which according to the radiologist, may have been normal for the veteran. Correctional with clinical symptoms was recommended. These records also reflect that in August 1994, the veteran sought outpatient treatment for a two hour history of increased back pain. The veteran also had numbness in her left leg with tingling of both feet, symptoms which she described as new. The veteran was crying because of the pain. The veteran had apparently started a new job cleaning a church and had duties which included sweeping, mopping, and vacuuming. The pain was relieved by a heating pad. It was noted that a complete spine X-ray conducted in July 1994 showed a slight scoliosis and minimal L5-S1 narrowing. Upon examination, no tenderness to palpation was noted. Muscle strength was 5/5, and sensation was intact for sharp and dull. Patellar deep tendon responses were negative bilaterally. Ankle-tendon reflexes were 2+ bilaterally. The diagnostic impression was musculoskeletal pain. In August 1995, the veteran again sought outpatient treatment for a history of low back pain. She would awaken in the morning with stiffness, which lessened after one or two hours. The pain was worse at night, especially when lying down. Upon examination, the veteran had no obvious scoliosis or kyphosis. There was a paraspinal muscular contraction on the left and tenderness to palpation at the sacroiliac. The veteran was able to walk on toes, heels, and invert and evert her feet bilaterally. Straight leg raising was positive bilaterally. The diagnostic impression was acute and chronic low back pain. In March 1997, the veteran's representative submitted a number of documents in support of the veteran's claim. These include a September 1996 statement from the veteran in which she indicated that she had increased pain and limitation of motion in her lumbar back, and that she was taking medication for these symptoms. In a February 1997 statement, the veteran indicated that she was receiving pain and rehabilitation therapy three days a week at the VA Medical Center (VAMC) in Richmond, Virginia. Finally, the documents include the report of a February 1997 examination during which the lumbosacral spine was noted to be tender. Muscle strength was 5/5 and sensation was intact. Deep tendon reflexes were 1+ bilaterally. Straight leg raising was negative. The assessment was chronic low back pain. In March 1997, the Board remanded the veteran's claims for additional development. In April 1997, the veteran submitted a written statement in which she asserted that she had been suffering from chronic low back pain since 1991. Sometimes she would seek treatment, and sometimes she had to work and could not get treatment for these symptoms. As the years went by, the veteran tried her best to deal with these symptoms, which only worsened. Not one day went by without pain. The veteran was now temporarily unable to work. The pain in her back had worsened to the point that she could hardly move her legs. In April 1997, a written memorandum from a VA physician was associated with the claims file. The physician noted that the veteran was being switched from the "back program" to physical therapy for modalities and gentle exercises for better control of her low back pian. The "back program" involved exercise equipment which was apparently aggravating her pain. In May 1997, additional VAMC medical records were associated with the claims file. These records reflect, in pertinent part, that in January 1997, the veteran sought outpatient treatment for, in part, low back pain, which was noted to be worse with menses. The veteran again sought treatment for low back pain subsequently in January 1997. An examination revealed that the back was non-tender. In a June 1997 letter, the Social Security Administration indicated that the veteran was not receiving disability benefits. Subsequently in June 1997, private medical records were associated with the claims file. These records reflect, in pertinent part, that in February 1996, the veteran sought outpatient treatment for a two to three day history of low back pain which was radiating into the legs and up her back. The pain was worse in the morning. It was noted that the veteran was working as a truck driver. An examination revealed tenderness of the left paraspinal muscles. Deep tendon reflexes were +0 in the knees and +2 in the ankles. Motor strength was 5/5. In October 1997, additional private medical records were associated with the claims file. These records include the report of an MRI conducted in October 1997, which revealed a left paracentral disc protrusion at L5-S1 contributing to effacement and displacement of the lumbar thecal sac as well as the exiting left S1 nerve root. There was also advance disc degenerative change at the L5-S1 level. In an October 1997 letter, Robert T. Mason, D.C., noted that the veteran had been a patient since September 1997. He was being treated for lumbar disc syndrome, a condition which had been confirmed recently with a MRI. The findings were a left paracentral disc protrusion at L5-S1 contributing to effacement and displacement of the lumbar thecal sac as well as the exiting left S1 nerve root. The veteran would be receiving flexion/distraction manipulation therapy to the lumbosacral junction three times a week for four weeks, and then she would be reevaluated. The veteran was also currently experiencing bilateral leg paresthesia and was advised to remain off her feet as much as possible and to avoid any heavy lifting. The veteran was informed that if conservative chiropractic care provided no relief, surgery might be indicated. In April 1998, a letter handwritten by the veteran was associated with the claims file. In this letter, the veteran reported that after six years of pain, pills, and many doctors telling her there was nothing wrong with her back, she went to a private chiropractor. This chiropractor ordered the MRI which revealed that she had lumbar disc syndrome. The veteran was scheduled to have surgery for this condition in May 1998. The veteran had done the best she could to deal with the pain. In the prior two years, she had to quit one job and had taken off from her present job twice. Each time, she was out of work two to three months. The veteran often had to make changes because of the pain. She could not play with her children as she would have liked, work as hard, or even sleep peacefully through the night. The veteran further wrote that during the prior one and one half years, she had to turn to her family for more and more support. She had to move twice due to her inability to pay her rent. The only reason that she still had a job was because of her family. She was expecting that surgery would take her out of work for a minimum of three months. In a June 1998 letter, the RO asked the veteran for assistance in obtaining updated medical records. The veteran underwent a joints examination for VA purposes in September 1998. The examiner initially noted that the claims file was not available for his review. The veteran reported worsening lumbar spine pain. She had had pain exacerbations that were made worse by any attempt to do any lifting, pushing, or pulling, and she had avoided lifting as much as possible. She had pain if she sat for long period of time and a lot of pain if she stood for a long time. The veteran stated that she had tingling involving the toes of her feet in both legs, but the right seemed worse than the left. If she attempted to walk for long distances, her pain was also worsened. She used a back brace, was on a TENS unit, and also took Naprosyn which helped minimally. The veteran worked as a truck driver, had missed a lot of time from work, and was finding that this occupation was extremely difficult to do because of her back and knee symptoms. Upon examination, the veteran had a slight increase in lumbar lordosis. She had no particular areas of tenderness, and she was able to bend forward to flex to her toes, demonstrating lumbar flexion to at least 90 degrees. Extension was to 10 degrees, but she complained of pain also upon extension as well as flexion. Side bending was within normal limits. Deep tendon reflexes were 2+ and symmetric at the patella and Achilles. Straight leg raising in the sitting position was negative. There were no strength deficits. Lumbar spine films showed significant degenerative disk disease between L5 and S1. The examiner also reviewed the MRI films of October 1997. At the conclusion of this examination, the impressions included significant degenerative disk disease, involving the lumbar spine, with disk herniation, with no hard neurological findings on examination. In an October 1998 written statement, the veteran essentially asserted that all records relevant to her claim had already been associated with the claims file. The veteran underwent a spine examination for VA purposes in February 1999. The examiner noted that the claims file was available for his review. The veteran stated that while she continued to work as a truck driver, she had to give up long distance driving. She now worked in the office and only drove the truck one to four times per month because of extreme back discomfort. She complained of intermittent pain involving her left leg and gave a history of having problems with left leg pain and numbness in the past. An examination of the lumbar spine revealed that there was no particular tenderness on palpation. The veteran demonstrated restricted range of motion, being able to forward flex to 80 degrees. Extension was to neutral position and left and right lateral bending was 20 degrees in both planes. The veteran's deep tendon reflexes were 2+ and symmetrical bilaterally and straight leg raising on the left resulted in some pain in the lower back. There were no strength deficits. According to the examiner, he could not comment on excess fatigability since that would require observation and examination over a period of time. He also could not comment upon loss of range of motion that could be attributed to excess fatigability. It was the examiner's impression that the veteran suffered from disc herniation at L5-S1 and she had had radicular symptoms in the past. Presently, the veteran did not have radicular symptoms but did have chronic back pain, related to the disc herniation. In March 1999, the examiner submitted an addendum to his examination report. He stated, in pertinent part, as follows: Basically, the evaluation that was performed on 2/3/99 was sent back because of insufficient data, "failed to provide range of motion and failed to comment on weakened movement, fatigability, and lack of coordination." In response to this, I would draw the reviewer's attention to [the] physical examination [report], and it basically says examination of lumbar spine reveals that there is no particular tenderness on palpation, and she demonstrated range of motion, being able to forward flex to 80 degrees, extension is to neutral or 0 degrees, and lateral bending is 20 degrees on both sides. That is range of motion of the back... Second question: The physical examination, third paragraph, says the examination does not show any incoordination. In terms of additional range of motion due to pain, weakened movement or fatigability, there was none. This examination was conducted in one particular space in time. In order to give an adequate assessment of additional range of motion due to weakened movement or fatigability, it would be necessary to perform a physical examination on a repetitive basis or at least have a functional capacity evaluation performed by a physical therapist qualified to do so over an extended day or a few hours. I can only simply say that at the time of the physical examination, there was no excessive fatigability; therefore, no loss of additional range of motion. At the time of the physical examination, there was no excessive pain, so therefore no additional loss of range of motion other than stated. I know of no other way to answer these questions truthfully. By a July 1999 rating decision, the RO, in pertinent part, increased the rating for degenerative disc and joint disease of the lumbar spine to 20 percent, effective from November 1992. A supplemental statement of the case was also issued in July 1999. In a letter dated in July 1999, the veteran asserted that she was a single parent with two small children. She had discussed her options with a neurosurgeon about having lower back surgery. The surgeon explained the pros and cons about the surgery. He said there was a 50 percent chance that she would feel better, but there was always the chance that the operation would not change her condition. After thinking about her children's welfare, the veteran decided against having the surgery performed. The veteran still intended to have the surgery, however. The veteran reasserted that her service connected disabilities had caused her "many days of pain." She still had to try and maintain a job, regardless of the problem. In November 1999, the veteran submitted additional records, and waived prior RO consideration of these documents. These records include, in pertinent part, a December 1999 letter written by the vice president of the trucking company for which the veteran worked. In this letter, it was noted that the veteran had been employed as an over-the-road driver. When she started having problems with her knee and back, she was given a position in the office. The veteran was out of work for two weeks because of surgery on her knee. When she returned in November 1999, she was informed that unless she could return to her driving position, she could not work at the company, due to downsizing. II. Analysis The first inquiry must be whether the appellant has stated well grounded claims as required by 38 U.S.C.A. § 5107(a). A well-grounded claim is one that is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the context of a claim for an increased evaluation of a condition adjudicated service connected, an assertion by a claimant that the condition has worsened is sufficient to state a plausible, well grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant in the instant case has stated well-grounded claims for increased ratings. The appellant having satisfied his initial burden, VA has a duty to assist him in the development of facts pertaining to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal, and that this duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). The Department has obtained VA and private medical records, and accorded the veteran several VA examinations. The duty to assist has been satisfied. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Federal regulations further provide: Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40 (1998). As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45 (1998). In DeLuca v. Brown, the Court held that in evaluating a service-connected disability involving a joint, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over time. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability, or incoordination. The Court has also held that a service-connected disability may be assigned separate disability ratings under more than one diagnostic code, as long as none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other conditions. See Esteban v. Brown, 6 Vet. App. 259, 261-262 (1994). Moreover, VAOPGCPREC 36-97 (Dec. 1997) instructed that Diagnostic Code 5293, intervertebral disc syndrome, involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. Therefore, pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this diagnostic code. The veteran's degenerative disc and joint disease of the lumbar spine has been assigned a 20 percent under Diagnostic Code 5293. Under Diagnostic Code 5293, where there is pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disk, with little intermittent relief, a 60 percent rating is to be assigned. Where there is severe intervertebral disc syndrome involving recurring attacks with intermittent relief, a 40 percent evaluation is appropriate. Where there is moderate intervertebral disc syndrome with recurring attacks, a 20 percent rating is for assignment. Mild intervertebral disc syndrome warrants a 10 percent rating, and cured, post-operative intervertebral disc syndrome warrants a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). The veteran's disk syndrome has been confirmed by the MRI report of October 1997. The claims file indicates that she has repeatedly sought outpatient treatment as well as chiropractic care for her back condition, which also initially caused her to be moved from a truck driving position to one in an office (a position which she ultimately lost due, apparently in part, to her inability to drive a truck). It is apparent that the symptoms the veteran has been experiencing are such that they may be characterized as "recurring" with "little intermittent relief." Although the veteran has been taking medication, this apparently has been to little relief. Therefore, a 40 percent rating under Diagnostic Code 5293 is warranted. However, a rating in excess of 40 percent is not warranted under Diagnostic Code 5293. While the veteran has had symptoms of pain, there has been no evidence of absent ankle jerk. Moreover, there were no little indications of neurological symptoms relating to the veteran's low back disability during her VA examinations. During a February 1997 VA examination, as well as the examinations in September 1998 and February 1999, deep tendon reflexes were present and equal bilaterally. Therefore, a 60 percent rating is not warranted under Diagnostic Code 5293. The undersigned also has reviewed the veteran's claim to determine if a rating in excess of 40 percent may be granted under 38 C.F.R. Part 4 Diagnostic Code 5289, ankylosis of the lumbar spine. Where there is favorable ankylosis, a 40 percent rating is assigned. Where ankylosis is unfavorable, a 50 percent rating is assigned. However, review of the veteran's medical records indicates no ankylosis of her lumbar spine. Consideration has been given to the application of 38 C.F.R. §§ 4.40, 4.45 and DeLuca to the veteran's claim for an increased rating. The VA examiner in March specifically concluded that there was no limitation of motion due to pain, weakened movement, or fatigability. Moreover, there has been no incoordination noted during the veteran's many VA examinations. In light of these findings, the Board finds that an additional disability rating for the veteran's service-connected low back disability is not warranted under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. See also DeLuca. Therefore, the Board concludes that the veteran is entitled to a 40 percent rating for degenerative disc disease of the lumbar spine under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5293, subject to the applicable criteria pertaining to the payment of monetary benefits. In so doing, consideration has been given to assigning staged ratings; however, at no time during the period in question has the veteran shown disablement equivalent to that greater than the assigned rating. Fenderson v. West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999). Therein, the Court held that, with regard to initial ratings following the grant of service connection, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. ORDER Entitlement to a 40 percent rating for degenerative disc disease of the lumbar spine is granted under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5293, subject to the applicable criteria pertaining to the payment of monetary benefits. REMAND There is information of record that the veteran underwent knee surgery in approximately November 1999. A copy of the hospital report and any post-surgical follow up visits are not contained in the claims folder. This medical evidence should be obtained, and the veteran should be afforded another examination to determine the post-surgical status of his knee disability. In a March 1997 written statement, the veteran appeared to assert that her knee and back disabilities interfered with her obtaining employment. As such, this assertion appears to have reasonably raised the issue of whether there is "marked interference" with the veteran's employment and earning capacity deriving from her service-connected knee and back disabilities. It does not appear from the evidence that the RO has considered the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) for the service connected issue on appeal. Under Fisher v. Principi, 4 Vet.App. 57, 60 (1993), the question of extraschedular consideration is a separate issue from the issue of the appropriate schedular rating to be assigned. Further, under Floyd v. Brown, 9 Vet.App. 88 (1996), although the Board may be obliged to raise the issue of potential extraschedular consideration, based upon a liberal reading of the documents and oral testimony of record, and make a preliminary assessment regarding the applicability of 38 C.F.R. § 3.321(b)(1), see Smallwood v. Brown, 10 Vet.App. 93 (1997), the Board cannot make that determination in the first instance. Based on the foregoing, the Board finds that further development of the record is required to determine whether an extraschedular evaluation is warranted and to adjudicate the issue of an increased rating for service connected right knee disability. Accordingly, this matter is REMANDED to the RO for the following action: 1. The RO should request from the veteran an employment statement. This should contain a notation of all employment from November 1992 (when the RO was notified that the veteran was seeking service connection for her disabilities), including time lost from such employment and jobs lost due to the service connected knee and back disabilities. 2. If the veteran is working, the RO should request from the veteran signed authorizations so that her employment records may be requested. Specifically, the VA needs verification of time lost from work due to the service connected back and knee disabilities and the effect of these disabilities on the veteran's ability to carry out her job duties. If special concessions were made by any employer because of the knee and back disabilities, this information is also needed. If the VA is unable to obtain this information, the veteran should be so notified and given an opportunity to do so. In addition, the veteran should be advised that she may submit any other evidence in her possession or which she is able to obtain documenting marked interference with her employment attributable to her knee and back disabilities. If she has had any period of hospitalizations for her disabilities since November 1992, she should so indicate and provide signed authorizations so that the VA may obtain any medical records not already associated with the claims file. All additional evidence received in this regard should be permanently associated with the claims file. 3. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for her right knee disability since 1999. After securing the necessary releases, the RO should obtain these records and permanently associate them with the claims file. The RO should request records from the VAMC in Richmond, Virginia, pertaining to the veteran's surgery in November 1999 for a right knee disability and post-operative outpatient treatment records. 4. Following completion of the above actions, the veteran should be afforded a VA orthopedic examination to determine the severity of her right knee disability. The claims folder must be made available to the examiner for review before the examination. All necessary tests and studies should be performed. The orthopedic examiner should be asked to determine the ranges of motion of the veteran's right knee and indicate the normal ranges of motion. The examiner should also indicate whether the veteran's right knee exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected disability; and these determinations should be expressed in terms of the degree of additional range of motion loss beyond that clinically demonstrated due to any weakened movement, excess fatigability, or incoordination. The examiner should be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the veteran's right knee is used repeatedly over time. This determination should also be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should note whether there is arthritis and/or any instability. If instability is present, it should be classified as mild, moderate or severe. The effect of the service-connected right knee disability on the veteran's ability to work should be described. In addition, the examiner should comment on the effect of the veteran's service connected low back disability on her ability to pursue substantially gainful employment. 5. After the above development is completed, the RO should consider the appropriateness of referring the veteran's claim to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extra-schedular evaluation for the low back and right knee disabilities under the provisions of 38 C.F.R. § 3.321 (1999). 6. Upon completion of the development requested by the Board and any other development deemed appropriate by the RO, the RO should again consider the rating to be assigned the service connected right knee disability since service connection was granted and also consider whether separate ratings may be assigned for any instability and arthritis that may be present. When the above developments have been completed, the issues pending before the Board should be reviewed by the RO. See VAOPGCPREC 23- 97. In addition, the RO should consider the veteran's claims pertaining to an extraschedular evaluation. If any action taken remains adverse to the veteran, she and her representative should be furnished a supplemental statement of the case concerning all evidence added to the record since the last supplemental statement of the case, to include discussion of 38 C.F.R. § 3.321 and the issue of an increased rating for right knee disability since service connection was granted. The veteran and her representative should be afforded an opportunity to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to afford the veteran due process of law. The Board intimates no opinion as to the ultimate outcome of the case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Iris S. Sherman Member, Board of Veterans' Appeals