Citation Nr: 0007912 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 96-31 834A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a bilateral knee disorder. 2. Entitlement to an increased evaluation for a cervical spine disability (C6 nerve root compression), currently evaluated as 10 percent disabling. (The issue of waiver of an overpayment of disability compensation benefits was the subject of a separate decision issued on June 12, 1998). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty in the United States Army from September 1973 to September 1977, from June 1978 to May 1979, and from April 1983 to July 1994. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 1995 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is fully detailed in the Board's decision/remand issued on June 12, 1998. The record now before the Board reflects that the only issues that remain in appellate status are as listed on the title page of this decision. FINDINGS OF FACT 1. In a rating decision in January 1981, the RO denied service connection for a bilateral knee disorder, essentially on the basis that a diagnosis for same was not found on a VA examination conducted in November 1980. The appellant was notified of this decision and of his appeal rights, but he did not file an appeal within the time allowed by law and regulations. 2. Evidence submitted by the appellant since the January 1981 rating decision, in particular, the report of a VA examination conducted in April 1997, is relevant and probative of the issue of whether he is entitled to service connection for a bilateral knee disorder. 3. Service department medical records reflect a history of a painful right knee associated with parachute jump training exercises conducted in 1975. 4. The report of the April 1997 VA examination noted that the appellant had some slight laxity of the medial structures of the knees with slight flexion which the examiner opined in an addendum report was consistent with symptoms produced by an individual performing parachute jumps. 5. The appellant does not have "moderate" or greater intervertebral disc disease of the cervical spine as shown by sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 6. The evidence in this case does not reflect that the appellant has an exceptional or unusual disability picture as to render impractical the application of the regular schedular disability rating standards for his cervical spine disability. CONCLUSIONS OF LAW 1. The January 1981 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1999). 2. New and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral knee disorder, and this claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), (c) (1999). 3. A bilateral knee disorder manifested by slight laxity with flexion of the knees was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.303(b), (d) (1999). 4. The cervical spine disability is no more than 10 percent disabling under the pertinent scheduler criteria. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5293 (1999). 5. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence: Bilateral Knee Disorder A decision of a duly-constituted rating agency is final and binding as to all field offices of VA as to written conclusions based on evidence on file at the time the claimant is notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. A claimant has one year from the date of notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if no NOD is filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1999). In order to reopen a claim which has been previously finally denied, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). While this case was pending on appeal, a decision of the United States Court of Appeals for the Federal Circuit (hereinafter "the Federal Circuit") set forth new guidance regarding the adjudication of claims for service connection based on the submission of "new and material evidence." In the case of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal Circuit held that in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), the U. S. Court of Veterans Appeals (the U. S. Court of Appeals for Veterans Claims on and after March 1, 1999) (hereinafter "the Court") impermissibly ignored the definition of "material evidence" adopted by VA under 38 C.F.R. § 3.156(a) as a reasonable interpretation of an otherwise ambiguous statutory term (found under 38 U.S.C. § 5108) and, without sufficient justification or explanation, rewrote the statute to incorporate the definition of materiality from an altogether different government benefits scheme. Pursuant to the holding in Hodge, the legal hurdle adopted in Colvin that required reopening of claim on the basis of "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the case was declared invalid. Thus, the legal standard that remains valid, 38 C.F.R. § 3.156(a), requires only that in order for new evidence to be material, it must be "so significant that it must be considered in order to fairly decide the merits of the claim." On this point, the Court has recently stated that a review of the claim under the more flexible Hodge standard accords the appellant a less stringent "new and material" evidence threshold to overcome. See Fossie v. West, 12 Vet. App. 1 (1998). More recently, the Court has articulated a new test for adjudicating claims based on new and material evidence. In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the Court held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge, supra: VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, VA may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. See also Winters v. West, 12 Vet. App. 203 (1999) (en banc). Although prior to Hodge a conclusion that new and material evidence had been presented necessarily meant that the reopened claim was well grounded, the Court stated in Elkins that the Federal Circuit in Hodge effectively "decoupled" the relationship between determinations of well-groundedness and of new and material evidence by overruling the reasonable-possibility- of-a-change-in-outcome prong of Colvin, supra. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). The Court has held that its precedent decisions must be given full force and effect immediately, even if VA appeals the decision. See Tobler v. Derwinski, 2 Vet. App. 8 (1991). It therefore follows that a precedent decision of the Federal Circuit, a court of superior jurisdiction, must be given immediate force and effect as well. As this case remains in appellate status, the Board will now consider whether new and material evidence has been submitted in accord with the holding in Hodge, supra. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (precedent decisions of the Court generally are given retroactive effect with regard to cases in which the administrative or judicial review process is not concluded). The Board will reopen the claim of service connection for a bilateral knee disorder. When read together with the appellant's contentions on appeal, the Board concludes that the new evidence submitted or associated with the record since the January 1981 rating decision, in particular, the report of the April 1997 VA examination that reflects that the appellant currently suffers from a bilateral knee disorder manifested by slight laxity with flexion range of motion of the knees, is sufficiently significant that it must be considered in order to fairly decide the merits of the claim. The claim was previously denied by the RO in 1981 essentially on the grounds that he did not have a diagnosis of knees shown in service or on a VA compensation general medical examination conducted in November 1980, only a few months after service discharge. Presently, by the aforementioned VA examination, he has such a diagnosis which raises the possibility of service incurrence. Accordingly, this evidence is found to be material to the issue on appeal. Moreover, in light of the findings reported in the addendum report to the April 1997 VA examination, which reflects the examiner's opinion that the appellant's laxity symptoms are consistent with prior trauma to the knees caused by parachute jumps, the Board also concludes that the claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991) and Elkins, Winters, supra, which thus permits further appellate review of the claim. Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Service department records reflect that the appellant participated in parachute jump exercises during his first period of active duty between September 1973 and September 1977. He was awarded the Parachute Badge and Expert Infantry Badge in connection with these activities. Although concerted efforts undertaken by the RO to obtain additional service clinical records for this period of service have proven futile, to include an additional search for such records pursuant to the Board's remand of June 1998, available service medical records denote a history reported in 1994 of the appellant having sustained an injury to his right knee while performing parachute jumps in 1975. He later claimed that these jump exercises caused recurrent pain symptoms to both knees at the time of his 1980 VA general medical examination, but, as noted above, no abnormalities were found on that examination. However, more recently, as noted above, the appellant was diagnosed with a bilateral knee disorder on the April 1997 VA examination, specifically, slight laxity of the knees with flexion, which the examining VA physician concluded was consistent with prior trauma to the knees caused by parachute jumps. The Board has carefully weighed all of the available evidence of record. Taken as a whole, the medical evidence supports a conclusion that a bilateral knee disability presently manifested by laxity in both knees had its onset during the appellant's period of military service. There is simply no objective evidence of record which provides an alternative etiology for his current condition, which as noted above, has been associated by a medical examiner with a prior history of trauma to the knees caused by parachute jumping activities. While available service clinical records do not confirm treatment or a definite diagnosis, the Board finds that the circumstances and hardships of the appellant's service, which involved rigorous physical training in airborne units, combined with his reported history of knee trauma reported at service discharge in 1994 and his subsequent account of his service experiences noted throughout the record after service, provides a reasonable basis to believe that his contentions are credible and therefore, probative as to the issue on appeal. Hence, notwithstanding the fact that a chronic disability of the knees is not shown by medical evidence during service or thereafter, when the appellant's contentions are considered along with the medical findings and opinion reported on the April 1997 VA examination, the Board concludes that the evidence for and against the claim is now in relative equipoise, which under the law requires that the benefit of the doubt be accorded to the appellant, resulting in a grant of service connection. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Increased Disability Evaluation: C6 Nerve Root Compression The appellant's increased rating claim is well grounded based on his complaints and medical records on file. 38 U.S.C.A. § 5107(a) (West 1991) and Shipwash v. Brown, 8 Vet. App. 218 (1995). The appellant has not been prejudiced by the RO's or the Board's description of this claim as an "increased rating" even though the appeal was perfected to the Board from his August 1994 original claim seeking entitlement to service connection for the cervical spine disability at issue herein. The 10 percent rating awarded for this disability was made effective from the date of claim, and hence, there is no need to address the question of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. 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 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). A merits-based review of a claim requires the Board to provide a written statement of the reasons or bases for its findings and conclusions on material issues of fact and law. 38 U.S.C.A. § 7104(d)(1) (West 1991). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate higher appellate review. See Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Moreover, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). To accomplish the above, the Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). With respect to musculoskeletal joint disabilities, the Board must, in addition to the schedular criteria, consider the application of 38 C.F.R. § 4.40 (1999) regarding functional loss due to joint pain on use or during flare-ups, and 38 C.F.R. § 4.45 (1999) regarding weakness, fatigability, incoordination, or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202, 203 (1995) (title 38, Code of Federal Regulations, Sections 4.40 and 4.45 make clear that pain must be considered capable of producing compensable disability of the joints); see also Quarles v. Derwinski, 3 Vet. App. 129, 139-40 (1992) (Board's failure to consider section 4.40 was improper when that regulation had been made potentially applicable through assertions and issues raised in record) and VAOPGCPREC 36-97, 63 Fed. Reg. 31262 (1998) (General Counsel extended consideration of sections 4.40 and 4.45 under the DeLuca holding to disabilities rated under Diagnostic Code 5293). Accordingly, the Board must consider whether an increased schedular rating for the appellant's cervical spine disability may be in order on three independent bases: (1) pursuant to the relevant schedular criteria, i.e., notwithstanding the etiology or extent of his pain complaints, if the medical examination test results reflect findings which support higher ratings pursuant to the delineated schedular criteria; (2) pursuant to 38 C.F.R. § 4.40 on the basis of additional functional loss due specifically to complaints of pain on use or during flare-ups; and (3) pursuant to 38 C.F.R. § 4.45 if there is additional functional loss due specifically to any weakened movement, excess fatigability, or incoordination. Additionally, with regard to assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Codes 5003 or 5010, the Board must consider whether an increased schedular or separate rating may be in order pursuant to 38 C.F.R. § 4.59 on the basis of painful motion "with joint or periarticular pathology." See VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). With respect to the above, the General Counsel held in VAOPGCPREC 9-98 that the Board's consideration of sections 4.40, 4.45 and 4.59 depended on whether the musculoskeletal disability was rated under a specific diagnostic code that did not involve limitation of motion and where another diagnostic code based on limitation of motion was potentially applicable to the particular disability under consideration. Id. However, the General Counsel cautioned that the applicability of a separate or multiple rating for a musculoskeletal disability was subject to the limitations of 38 C.F.R. § 4.14, which prohibits "the evaluation of the same manifestation [of a disability] under different diagnoses." Id. Medical records reviewed by the RO in connection with this claim included the service medical records which disclosed that the appellant injured his neck in a motor vehicle accident in August 1992. Additional service clinical reports noted that he had pain with extension and rotation of his cervical spine along with a popping-out sensation when seen in November 1992, and an magnetic resonance image (MRI) study completed in January 1993 showed the presence of a herniated disk at C5-6. Other records reviewed by the RO included the reports of VA general medical examinations conducted in November 1980 and January 1995, which were negative for any abnormalities of the spine (cervical spine x-rays taken in January 1995 showed no radiographic abnormalities). However, based on the above-cited findings reported in service, together with the results of a VA neurological examination conducted in January 1995, which noted the presence of a C6 nerve root compression causing symptoms of slight decrease in grip strength in the right hand, slight weakness to flexion-extension in the right elbow, and decreased sensation to pinprick down the lateral aspect of the left and right arms and hands, the RO granted service connection for the cervical spine disability by rating decision in August 1995 and assigned a 10 percent rating under Diagnostic Code 5293. The appellant later perfected an appeal to the Board on this claim. Additional medical evidence considered by the RO during the pendency of the appeal consisted only of the report of the April 1997 VA examination. As alluded to above, the Board remanded this case in June 1998 to afford the appellant the opportunity to submit or request VA assistance in obtaining additional treatment records dating from 1994, but no reply to the RO's development letter for same was received. The aforementioned April 1997 examination noted his complaints of cervical pain with radicular symptoms into the right shoulder area, numbness in his fingers of his right hand, and occipital-area headaches that he believed were caused by his compression injury, but objectively, clinical findings on this examination noted only some slight to moderate limitation of motion on lateral flexion (55 degrees with 65 degrees being within normal limits) and flexion (40 degrees with 65 degrees being within normal limits). Rotation (55 degrees) and extension (40 degrees) range of motion testing of the neck was within normal limits. X-rays of his cervical spine taken at the time of this examination were interpreted as being negative for pathological process. Based on these findings, the examiner diagnosed cervical radiculopathy, without signs of nerve root compression, C5-6, right. At his hearing in February 1997, the appellant reiterated many of the same complaints in reference to his neck and indicated that he was taking pain relief and anti-inflammatory medications to treat a host of physical disabilities, to include his cervical spine as well as for carpal tunnel syndrome. According to the Schedule for Rating Disabilities, the appellant's service- connected cervical spine disability is currently rated 10 percent disabling under Diagnostic Code 5293. The scheduler criteria under Diagnostic Code 5293 provide that a 10 percent evaluation will be assigned for "mild" recurring attacks of persistent symptoms of sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc. Higher disability ratings of 20, 40 and 60 percent are applicable for, respectively, "moderate," "severe" and "pronounced," recurring attacks of the aforementioned symptoms of sciatic neuropathy, with little intermittent relief. Pursuant to Diagnostic Code 5290, a 20 percent evaluation is warranted for "moderate" limitation of motion of the cervical spine. The maximum rating under this code, 30 percent, is applicable for "severe" limitation of motion of the cervical spine. Nevertheless, after having reviewed all of the relevant medical evidence, the Board is of the opinion that the appellant is appropriately rated for his cervical spine disability at the 10 percent disability rating level. His complaints of pain and limited functional capacity have been considered; however, the Board assigns the greater weight of probative value to the objective medical evidence, in particular, the VA examinations conducted in 1995 and 1997. As detailed above, clinical findings on these examinations failed to show symptoms of significant disability of the cervical spine. When read together, these examinations reflect that the appellant has some mild symptoms of C6 nerve root compression and essentially no greater than slight to moderate limitation of motion of the neck in the flexion and lateral flexion range of motions. There is no additional evidence of ongoing treatment for this disability and there is no evidence that he has ever required inpatient treatment or surgery for the cervical spine, although the record reflects that a private physician told him in the past that he would someday need surgery. However, to date, it is not shown that his condition has required surgical intervention, and as noted, above, there is no evidence of treatment for this disability in the postservice period. With these findings for consideration, the Board finds that the criteria for a moderate or greater case of sciatic neuropathy is not shown by the objective evidence of record. As alluded to above, the recent medical evidence discloses only that the appellant has relatively chronic low grade neck pain of radicular origin, with no in/outpatient treatment for acute exacerbations of sciatic neuropathy. Moreover, higher ratings (above 10 percent) under other diagnostic criteria for the spine are clearly not in order as the evidence does not show that the cervical spine disability involves (or ever involved, for that matter) abnormal mobility requiring a neck brace (Code 5285); complete bony fixation (ankylosis) of the spine, either in a favorable or unfavorable angle (Code 5286); or favorable or unfavorable ankylosis (Code 5287). A rating under Code 5290 (limitation of motion) is not applicable in this case as it is not shown that he has overall moderate or greater limitation of motion of the cervical spine. Accordingly, the Board concludes that the appellant's service-connected cervical spine disability is appropriately rated as 10 percent disabling under Diagnostic Code 5293 for mild intervertebral disc disease, as indicated by the findings noted on the 1995 and 1997 VA examinations. The appellant's complaints of pain in his neck do not warrant an increased rating above the now assigned 10 percent schedular level under 38 C.F.R. §§ 4.40 and 4.45 because the medical evidence does not substantiate "additional" range-of-motion loss in the neck due to pain on use or during flare-ups, or due to weakened movement, excess fatigability, or incoordination. Moreover, as it appears that most of his pain is sciatic in nature, for which he receives a rating reflective of "mild" impairment under Code 5293, the Board is not persuaded that he has "additional" range of motion loss on use or due to the other aforementioned causes. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1996). Accordingly, the Board finds that a preponderance of the evidence is against a finding of "additional functional loss" in the appellant's cervical spine that is evidently caused by his pain complaints or due to weakness or incoordination. The Board also observes that the medical evidence on file is entirely bereft of any findings demonstrating that the appellant's cervical spine disability involves painful motion "with joint or periarticular pathology." Hence, an increased or separate rating for this disability under section 4.59 is not in order. The Board has considered the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, for the reasons discussed above, the Board concludes that the currently assigned 10 percent rating for the appellant's cervical spine disability adequately reflects the level of impairment pursuant to the schedular criteria. In particular, the Board has given consideration to evaluating this disability under different Diagnostic Codes. The Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). However, in the instant case, the Board finds that Diagnostic Code 5293 is the most appropriate schedular criteria for the evaluation of the appellant's back disability. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Additionally, as with the analysis provided above regarding the applicability of 38 C.F.R. §§ 4.40 and 4.45, there is no evidence of any "additional disability" associated with x-ray findings in the cervical spine which would require consideration of a separate rating pursuant to Diagnostic Code 5003. As noted, there is no radiographic evidence of degenerative arthritis affecting the appellant's cervical spine. The appellant's contentions and hearing testimony on appeal have been accorded careful and compassionate consideration; however, the Board concludes that the medical findings discussed above are more probative of the level of disability. It should be emphasized that the diagnoses and clinical findings rendered on the 1995 and 1997 VA examinations are consistent with the appellant's medical history, described in detail above, and are essentially uncontradicted by any other recent medical evidence of record. The appellant is not shown to be qualified to render a medical diagnosis or opinion. Hence, his views as to the etiology of his pain complaints and/or the extent of functional impairment in his back are specifically outweighed by the medical evidence of record cited above. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay assertions will not support a finding on questions requiring medical expertise or knowledge). In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (1999). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. In this regard, the schedular evaluation assigned in this case for the appellant's back disability is not inadequate. As the schedular criteria provide a basis to award increased compensation in this case for this disability, it does not appear that the appellant has an "exceptional or unusual" disability of the cervical spine. Moreover, the Board finds no evidence of an exceptional disability picture. It is not shown by the evidence that the appellant has required frequent hospitalization in the remote or recent past for his cervical spine disability. Thus, in the absence of any evidence which reflects that this disability is exceptional or unusual such that the regular schedular criteria are inadequate to rate it, the RO's failure to consider or to document its consideration of this section was not prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Finally, in reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against an increased rating above that now assigned, the doctrine is not for application. Gilbert, 1 Vet. App. at 55. ORDER Service connection for a bilateral knee disorder, presently diagnosed as slight laxity with flexion of the knees, is granted. An increased rating above 10 percent for the cervical spine disability is denied. A. BRYANT Member, Board of Veterans' Appeals