Citation Nr: 0813560 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-23 508 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for migraine headaches, to include as secondary to multiple sclerosis. 2. Entitlement to an initial rating in excess of 30 percent for multiple sclerosis. 3. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) and herniated discs of the thoracolumbar spine. 4. Entitlement to an initial, compensable rating for right knee degeneration of posterior horn of the medial meniscus and popliteal tendinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from May 1997 to October 1997. The appeal to the Board of Veterans' Appeals (Board) initially arose from a February 2006 rating decision in which the RO denied the veteran's claim for service connection for migraine headaches and granted service connection for multiple sclerosis and awarded a 30 percent rating, effective May 13, 2005. In a March 2006 rating decision, the RO granted service connection for DDD and awarded a 20 percent rating for herniated discs of the thoracolumbar spine , and granted service connection and awarded a noncompensable (0 percent) rating,for right knee degeneration of posterior horn of the medial meniscus and popliteal tendinitis each effective May 13, 2005. In April 2006, the veteran filed a notice of disagreement (NOD) with the each issue decided in the February 2006 and March 2006 rating decisions. In June 2006, the RO issued a statement of the case (SOC) reflecting the denial of the veteran's claim for service connection for migraine headaches, his claim for an initial rating in excess of 30 percent for multiple sclerosis, and a claim for an effective date earlier than May 13, 2005, for the grant of service connection for multiple sclerosis. Later that same month the RO issued a second SOC reflecting the denial of the veteran's claims for an initial rating in excess of 20 percent for DDD and herniated discs of the thoracolumbar spine and for an initial compensable rating for the right knee disability. In July 2006, the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) to all the issues decided in the June 2006 SOCs. In February 2008, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the appellant submitted additional evidence to the Board, waiving initial RO consideration of the evidence. The Board accepts that evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2007). Also during the hearing, the appellant withdrew from appeal his claim for entitlement to an effective date earlier than May 13, 2005, for the grant of service connection for multiple sclerosis. Because this appeal arose, in part, from the veteran's disagreement with the initial ratings assigned following the grants of service connection for multiple sclerosis, for a spinal disability, and for a right knee disability, the Board has characterized those claims for higher initial ratings in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for higher ratings for already service-connected disabilities). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished. 2. There is no medical evidence or opinion to support the veteran's assertions of a migraine headache disability that had its onset in service or was due to multiple sclerosis. 3. Since the May 13, 2005 grant of service connection, the veteran's multiple sclerosis is manifested by mild effects on the sensory function and mild pyramidal tract dysfunction without disability; numbness in the extremities and memory loss are without evidentiary support in the medical record. 4. Since the May 13, 2005 grant of service connection, medical evidence reflects forward flexion of the thoracolumbar spine greater than 30 degrees, no ankylosis of the entire thoracolumbar spine, no incapacitating episodes of IVDS, and no separately ratable neurological manifestations of the veteran's service-connected low back disability. 5. Since the May 13, 2005 grant of service connection, medical evidence reflects right knee flexion limited to no more than 130 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches, to include as secondary to multiple sclerosis, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). 2. The criteria for an initial rating in excess of 30 percent for multiple sclerosis are not met. 38 U.S.C.A. §§ 1155, 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.84a, 4.124a, Diagnostic Code (DC) 8018 (2007). 3. The criteria for an initial rating in excess of 20 percent for DDD and herniated discs of the thoracolumbar spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.27, 4.40, 4.45, 4.49, 4.71, 4.71a, General Rating Formula for renumbered Diagnostic Codes 5235- 5243 and Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (as in effect since September 26, 2003). 4. The criteria for an initial, compensable rating for right knee degeneration of posterior horn of the medial meniscus and popliteal tendinitis have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5299-5260 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Recently, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) held that, in rating cases, VA must notify the claimant that, to substantiate a claim for an increased rating: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this appeal, in a June 2005 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claims for service connection for migraine headaches, multiple sclerosis, and lower back and right knee disabilities, as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and the need for the appellant to advise VA of and to submit any further evidence that is relevant to the claims. As for the claims for higher initial ratings for multiple sclerosis and the spinal and right knee disabilities, and the claim for secondary service connection for migraine headaches, the veteran was afforded the opportunity to respond. After the three grants of service connection in the rating decisions under appeal, and the filing of the veteran's NOD, the SOCs issued in June 2006 provided notice of the criteria for higher ratings for those three disabilities, as well as the criteria for secondary service connection, and reflect readjudication of all the claims. While the issuance of fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect (see Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)), here, the SOCs reflecting readjudication of the claims were issued at the time of, and not subsequent to, the notice specific to the claims for higher ratings and the claim for secondary service connection. However, this fact also is not shown to prejudice the veteran. In his April 2006 NOD, the veteran evinced an understanding that higher ratings are based on the severity of his disabilities and that he could claim service connection for migraine headaches as secondary to his multiple sclerosis. Thus, any error in this regard was harmless because it "did not affect the essential fairness of the adjudication," as the record reflects that "any defect was cured by actual knowledge on the part of the claimant." See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed.Cir. 2007). The Board also points out that both June 2006 SOCs set forth the criteria for higher ratings for multiple sclerosis, for DDD and herniated discs of the thoracolumbar spine, and for a right knee disability (which suffices for Dingess/Hartman.) Thus, while the RO did not provide a notice letter specific to the claims for higher ratings or for secondary service connection, given the above, and because the appellant and his representative have demonstrated a clear understanding of what is needed to substantiate these claims, the Board finds that the appellant is not shown to be prejudiced by the timing, content, or form of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also, Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (holding that notice deficiencies are not prejudicial if they did not render the claimant without a meaningful opportunity to participate effectively in the processing of his or her claim). The Board also notes that a February 2008 letter informed the appellant how disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations. However, the timing of this notice- subsequent to the last adjudication of the claims-is not shown to prejudice the veteran. Because in the decision herein, the Board denies service connection for migraine headaches, and denies the remaining claims for higher initial ratings, no disability rating or effective date is being, or is to be, assigned. Hence, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman. Regarding the Vazquez-Flores notice requirements, to the extent that these requirements apply to the claims for higher initial ratings, the RO, in its June 2005 letter, listed examples of the types of medical and lay evidence that are relevant to establishing entitlement to increased compensation. To the extent that the RO did not otherwise comply with the Vazquez-Flores notice requirements, the veteran's written NOD and his Board testimony contain extensive discussion about the impact of the worsening of his disabilities on his employment and daily life and why higher ratings than those assigned were warranted. He also testified that the same private physician who treated him for his multiple sclerosis and back and knee disabilities was to fax further information to the Board on the day of the hearing. Consequently, any error in this regard was "cured by actual knowledge on the part of the claimant." See Sanders, 487 F.3d at 889. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records; post-service private medical records; treatment records from the Brooke Army Medical Center (VAMC) in Texas; as well as reports of VA examinations. Also of record and considered in connection with these claims is the transcript of the February 2008 Board hearing as well as various written statements provided by the veteran and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of these claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After a full review of the record, including the medical evidence, the veteran's hearing testimony and statements by the veteran and his representative, the Board finds that service connection for migraine headaches is not warranted. Initially, the Board notes that there are no clinical findings or diagnoses of headaches during service or for several years thereafter. Service medical records are negative for any complaints of or treatment for headaches while in service. Post-service Army hospital records dated from December 1997 to March 1999 do not document treatment for headaches. On January 2006 VA examination, the examiner diagnosed migraine headaches and noted that review of the veteran's service medical records was negative for any mention of headaches. Further, there is no medical opinion even suggesting a nexus between the veteran's current migraine headache disability and service. Significantly, neither the veteran nor his representative has presented, identified, or even alluded to the existence of any medical evidence or opinion that supports a finding of service connection for migraine headaches on a direct basis. The veteran also seeks service connection for migraine headaches on a secondary basis and asserts that his headaches are secondary to his service-connected multiple sclerosis. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). On VA examination in January 2006, the veteran complained that his headaches probably began in 1998 (one year after leaving service) after he was diagnosed with multiple sclerosis. He claimed daily day-long headaches and said they might be precipitated by bright light. He could continue with daily activities in spite of the headaches. Daily headaches could last up to one week. He rated the pain as an 8 on a scale of 1 to10. Headache pain was described as generalized, pulsatile, with nausea and vomiting and the taste and smell of blood. The headaches were not prostrating and did not interfere with the veteran's work at the airport. The examiner diagnosed migraine headaches and said that a VA neurological examination of the same month showed essentially normal neurological results. During his Board hearing, the veteran testified that he develops a headache in his brain after his multiple sclerosis flares up. He said that headache pills are then ineffective and that he could have a headache for a week or a week and a half. He testified to 20 to 25 such migraines in the previous year. To alleviate the pain, the veteran said that he turns on the air-conditioning, shuts the lights off, takes a cold shower, takes pills, and goes to sleep. He has spent up to two days in bed with a headache (Transcript, pp. 14- 16). Review of the claims file reveals no competent medical evidence or opinion that the veteran's current migraine headache disability is due to his service-connected multiple sclerosis. The Board notes that the same VA examiner conducted both January 2006 examinations related to the veteran's migraine headaches and his multiple sclerosis (see below). This examiner, who reviewed the claims file and interviewed the veteran, never asserted that migraine headaches were caused by or aggravated by multiple sclerosis. The Board accords probative value to the VA examiner's report, based as it is on a review of the veteran's claims file, a detailed review of pertinent aspects of the veteran's documented medical history, and a current examination. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).Significantly, neither the veteran nor his representative has presented, identified, or even alluded to the existence of any medical evidence or opinion that supports a finding of service connection for migraine headaches as secondary to his service-connected multiple sclerosis. In addition to the medical evidence addressed above, the Board has considered the assertions of the veteran and his representative advanced in connection with the claim on appeal. However, as laymen without appropriate medical training and expertise, neither the veteran nor his representative is competent to render a probative opinion on a medical matter, to include a question as to the etiology of a current disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the claim for service connection for migraine headaches, to include as secondary to service- connected multiple sclerosis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Higher Ratings Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. A. Multiple Sclerosis Historically, by rating action of February 2006, the RO granted service connection for multiple sclerosis and assigned a 30 percent rating under the provisions of 38 C.F.R. § 4.124a, DC 8018 (pursuant to which multiple sclerosis is rated), effective May 13, 2005. Under Diagnostic Code 8018, the minimum rating for this disorder is 30 percent. In order to warrant more than a 30 percent rating, the disorder may be rated on its residuals. With the exceptions noted, disability from neurological conditions and convulsive disorders and their residuals may be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Considered especially are psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, VA rates by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. See 38 C.F.R. § 4.124a. Army hospital records dated from December 1997 to March 1999 showed the veteran was treated for multiple sclerosis and that follow-up included the neurology clinic. Private treatment records from the veteran's private physician, Dr. A.R.C., dated from January 1998 to November 2005 showed treatment for multiple sclerosis. For example, records dated in July 2004, November 2004, April 2005, May 2005 and July 2005 revealed no motor or sensory function deficiencies. Private May 2004 magnetic resonance imaging (MRI) scans of the cervical spine, dorsal spine, and of the brain showed findings suggestive of a demyelinating process such as multiple sclerosis. A private April 2005 MRI scan of the brain showed no enhancing lesions and no abnormal changes in the cerebellum since the previous brain scan in 2004. Private January 2006 nerve conduction studies of motor and sensory functions of the veteran's lower extremities showed normal values for velocity, latency, and amplitude for all motor and sensory nerves. An EMG showed no abnormality in muscles of the lower extremities. The examiner noted there was no evidence of lumbosacral radiculopathy nor neuropathy in the lower extremities. On VA examination in January 2006, the examiner noted studies compatible with the diagnosis of multiple sclerosis and cervical and thoracic involvement by multiple sclerosis. He also noted that the veteran began treatment with Copaxone in 2004. The veteran now complained of intermittent numbness in the lower extremities and in the right upper extremity. There were no urinary, bowel, or motor problems noted. The report of examination noted that the veteran complained of impaired memory, had undergone neuropsychological testing, and was found with apparent memory deficit, but this documentation was not in the claims folder. The veteran was employed and independent in the activities of daily living. The report described the veteran as stable with no seizures. On physical examination, the veteran had a normal gait appearance and speech pattern without cranial nerve involvement and normal motor examination. The tone in all four extremities was described as normal. On sensory examination, there was decreased pinprick in the right upper extremity and the right lower extremity, and the deep tendinous reflexes were normoactive, +2 in the upper extremities, hyperactive, +3 at the patellar level and absent at the Achillean bilaterally. There was no functional impairment of the peripheral and autonomic systems. No individual joint was affected by multiple sclerosis. The examiner also observed that the veteran's memory did not appear obviously impaired as the veteran was able to recall his history chronologically and with specific events. The examiner noted normal judgment and reasoning abilities. The examiner diagnosed evidence compatible with multiple sclerosis involving two functional systems, mild in the sensory function and mild pyramidal tract dysfunction without disability. During his February 2008 Board hearing, the veteran testified that he suffered loss of his extremities, loss of memory, and a tingling sensation as a result of his multiple sclerosis. He said that on his bad days, he had cold sweats and lost coordination. The veteran testified that this happened about 20 times within the previous year, and that he missed 25 to 30 days of work as a result of his multiple sclerosis. See Transcript, pp. 4-7. The Board need not address the veteran's entitlement to a higher increase under those diagnostic codes for rating neurological defects to the lower and upper extremities, because the veteran does not suffer from incomplete paralysis of the lower extremities or of the upper right extremity. Indeed, he is able to move his upper and lower extremities and perform the activities of daily living and maintain employment. The Board finds moreover, that a higher r rating is not warranted under DC 8018. The veteran is already in receipt of the maximum 30 percent rating available under that provision, and limitation of function resulting from numbness in the lower extremities and in the right upper extremity has not been shown. The veteran has full use of his extremities with little trouble. There is also no documented evidence of the veteran's complaint of memory loss due to multiple sclerosis. Thus, a higher rating under DC 8018 is not warranted. See 38 C.F.R. § 4.124a,. B. DDD and Herniated Discs of the Thoracolumbar Spine Historically, by rating action of March 2006, the RO granted service connection for DDD and herniated discs of the thoracolumbar spine and assigned a 20 percent rating under the provisions of 38 C.F.R. § 4.71a, DC 5299-5243, indicating a spinal disability Irated, by analogy, to intervertebral disc syndrome (IVDS)), effective May 13, 2005. See 38 C.F.R. §§ 4.20, 4.27.The criteria for rating all spine disabilities, to include IVDS under DC 5243, are set forth in a General Rating Formula for Diseases and Injuries of the Spine. The criteria provide that IVDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (to include consideration of separate rating for orthopedic and neurological manifestations) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, a rating of 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria 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. 38 C.F.R. § 4.71a. Considering the pertinent evidence in light of the above- noted criteria, the Board finds that a rating in excess of 20 percent for DDD and herniated discs of the thoracolumbar spine is not warranted on any basis. Under the General Rating Formula, higher ratings than 20 percent are available for forward flexion of the thoracolumbar spine 30 degrees or less; ankylosis of the thoracolumbar spine; or unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. On VA examination in January 2006, forward flexion of the thoracolumbar spine was measured at from 0 degrees to 50 degrees, with pain beginning at 40 degrees. Under the General Rating Formula, that range of motion warrants a 20 percent rating for the orthopedic manifestation of his lumbar spine disability. Army hospital medical records from December 1997 to March 1999, and private medical records from May 2004 to November 2005, simply do not establish any evidence of, or disability comparable to, forward flexion of the thoracolumbar spine of 30 degrees or less, ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the entire spine, which would entitle the veteran to a rating in excess of 20 percent. Considering the pertinent findings with respect to the veteran's primary orthopedic manifestation-limited motion- in light of the criteria of the General Rating Formula would result in no more than a maximum 20 percent rating, based on consideration of the findings shown on the January 2006 VA examination-the only medical evidence that provides sufficient findings to rate the veteran's disability at 20 percent, at which time flexion was from 0 to 50 degrees with pain. There also is no evidence that the veteran manifests favorable ankylosis of the entire thoracolumbar spine, which is the alternative criterion for the next higher, or 40 percent, rating under the General Rating Formula. There also is no evidence of greater limitation of motion since the January 2006 VA examination; hence, a higher rating would not be warranted for the orthopedic component of this lumbar spine disability. The medical evidence clearly does not reflect a basis for more than a 20 percent rating under the General Rating Formula. While, under Note (1) of the General Rating Formula for DCs 5235-5243, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the veteran's service-connected lumbar spine disability, such would not be the case here. The medical evidence does not support that the veteran has any separately ratable neurological manifestation that, combined with the orthopedic manifestations, would warrant a higher rating. The Board notes that the January 2006 VA neurological examination showed a normal motor examination of the lower extremities, a normal sensory examination of the lower extremities, no bilateral ankle jerk but hyperactive (without clonus) bilateral knee jerk, and normal EMG tests and findings with no evidence of peripheral neuropthy or lumbar radiculopathy. These findings are not indicative of a separately ratable disability. Further, there is no medical evidence that the veteran's service-connected low back disability would warrant a higher rating if rated on the basis of incapacitating episodes. Rather, the veteran himself described no incapacitating episodes in the prior 12 months on VA orthopedic examination in January 2006 and during his February 2008 Board hearing. In addition, the record does not show that bed rest has been prescribed by a physician, nor does the record include objective evidence otherwise establishing incapacitating episodes. As such, there is no evidence that the veteran has incapacitating episodes having a total duration of at least four weeks during the past 12 months as required for a higher rating of 40 percent on the basis of incapacitating episodes. See 38 C.F.R. § 4.71a. The Board also points out that when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare- ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion (see Johnson v. Brown, 9 Vet. App. 7 (1996)), to include IVDS (see VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998)). In this case, however, the Board finds that the 20 percent rating properly compensates the veteran for the extent of his functional loss due to pain and other factors set forth in §§ 4.40 and 4.45. The Board notes the veteran's testimony that his daily back pain can reach a 7 (on a 10 scale). Transcript, pp. 9-10. The Board also notes the January 2006 VA examiner's comments that ranges of motion during passive, active, and repetitive motions were the same, and that, besides a limitation on walking more than one mile, there was no limitation secondary to weakness, fatigability, incoordination, or flare-ups. This is indicative of forward flexion to 60 degrees, but this too continues to rate the veteran at 20 percent under the regulatory criteria. The Board also notes the General Rating Formula provision that provides that the criteria are applied with or without symptoms such as pain (whether or not it radiates). C. Right Knee Disability Historically, by rating action of March 2006, the RO granted service connection for right knee degeneration of posterior horn of the medical meniscus and popliteal tendinitis and assigned a noncompensable (0 percent) rating under the provisions of 38 C.F.R. § 4.71a, DC 5299-5260, indicating a knee disability rated on the basis of limitation of leg flexion, effective May 13, 2005. See 38 C.F.R. §§ 4.20, 4.27 . Pursuant to Diagnostic Code 5260, the following ratings are assignable for limited flexion: for flexion limited to 60 degrees, 0 percent; for flexion limited to 45 degrees, 10 percent; for flexion limited to 30 degrees, 20 percent; and for flexion limited to 15 degrees, 30 percent. VA's General Counsel also has held that separate ratings are also available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Pursuant to Diagnostic Code 5261, the following ratings are assignable for limited extension: for extension limited to 10 degrees, 10 percent; for extension limited to 15 degrees, 20 percent; for extension limited to 20 degrees, 30 percent; for extension limited to 30 degrees, 40 percent; for extension limited to 45 degrees, 50 percent. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2000); DeLuca, 8 Vet. App. at 204-07. As noted a bove, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. A private medical record dated January 2006 showed a MRI scan of the veteran's right knee. The MRI scan revealed mucinous degeneration of the posterior horn of the medial meniscus as well as minimal joint effusion and fluid next to the popliteal tendon which could be related to tendonitis. On VA examination in January 2006, the veteran complained of burning pain radiating from the posterior aspect to the anterior aspect of the right knee. Occasionally he suffered loss of strength in the knee and could not move it in the morning when arising from bed. Sometimes while working the right knee gave way. Right knee pain was intermittent with remissions since a fall in service. His current treatment consisted of over-the-counter drugs. There were no constitutional symptoms, or incapacitating episodes, of arthritis noted in his medical history. There were no episodes of dislocation or subluxation noted. Crepitation was noted, but there was no instability or patellar or meniscus abnormality. X-rays of the right knee joint showed no bone or joint pathology. Active range of motion of the right knee was measured as: flexion to 130 degrees, and extension to 0 degrees. Passive range of motion was measured as from 0 to 140 degrees. The VA examiner noted the veteran's ability to stand and walk was limited functionally: he was able to stand three to eight hours, with only short rest periods, and was able to walk more than one-quarter mile but less than one mile. The examiner diagnosed mucinous degeneration of the posterior horn of the medical meniscus and popliteal tendonitis by private fee-based MRI scan. A March 2006 addendum to the January 2006 VA examination revealed that the examiner found no objective evidence of painful motion on all movements of the right knee. During his February 2008 Board hearing, the veteran testified that he took Advil and Tylenol for his knee pain. He said the right knee became painful when he walked a lot. A burning sensation would develop on the backside and frontside of the knee. He further testified that he could only walk a block before these problems began. As a passenger service agent for an airline at a Puerto Rico airport, he stood in his job and did not sit in front of a computer. He rated his knee pain as a 6 on a scale of 10 (Transcript, pp. 11-13). The January 2006 VA examination demonstrated right knee flexion limited to no more than 130 degrees active, and to a normal 140 degrees with passive range of motion. Even with consideration of functional loss due to pain and other factors, such limitation of motion does not meet the criteria for even the minimum, compensable rating under Diagnostic Code 5260. Diagnostic Code 5261 likewise provides no basis for assignment of any higher rating, as the medical evidence reflects findings of full extension. Given these findings, there also is no basis for assignment of separate ratings for limited flexion and extension, pursuant to VAOPGCPREC 9-04. In terms of functional impairment, the January 2006 VA examiner found symptoms of giving way, instability, pain, stiffness, weakness, locking episodes several times a week, and inflammation. However, there were no flare-ups of knee joint disease and the veteran had a normal gait. The VA examiner indicated that there was no additional limitation of motion on repetitive use, and no objective evidence of painful motion on all movements of the right knee. The medical evidence is thus consistent with the noncompensable rating assigned. Consideration of pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, provide no basis for assignment of any higher rating. In addition to the diagnostic codes addressed above, the Board has considered whether any higher rating for the right knee is assignable under any other diagnostic code under 38 C.F.R. § 4.71a. However, there is no medical evidence of ankylosis of the knee, subluxation or lateral instability, semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum; as such, Diagnostic Codes 5256, 5257, 5258, 5259, 5262 and 5263 (for rating the knee and leg) are not applicable. D. All Higher Rating Claims Additionally, the Board finds that there is no showing that the veteran's service-connected multiple sclerosis, low back and right knee disabilities have reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis (as cited in June 2006 SOCs). See 38 C.F.R. § 3.321(b). In this regard, the Board notes that neither the veteran's multiple sclerosis, lumbar disability, or right knee disability has objectively been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings). During his Board hearing, the veteran testified to continual employment as an airline passenger agent in spite of any pain caused by his disabilities. The Board notes that there is no objective evidence establishing that any of these three disabilities has negatively impacted or compromised that employment. Also, since the grant of service connection, none of these disabilities has required frequent hospitalizations. There also is no objective evidence that these disabilities have otherwise rendered impractical the application of the regular schedular standards. In the absence of objective evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b) have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that the preponderance of the evidence is against the claims for higher initial ratings for multiple sclerosis, for DDD and herniated discs of the thoracolumbar spine, and for right knee degeneration of posterior horn of the medial meniscus and popliteal tendinitis at any time since the effective date of the grant of service connection. As such, there is no basis for staged rating, pursuant to Fenderson, the benefit- of-the-doubt doctrine does not apply, and each claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for migraine headaches, to include as secondary to multiple sclerosis, is denied. An initial rating in excess of 30 percent for multiple sclerosis is denied. An initial rating in excess of 20 percent for DDD and herniated discs of the thoracolumbar spine is denied. An initial compensable rating for right knee degeneration of posterior horn of the medial meniscus and popliteal tendinitis is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs