Citation Nr: 0813665 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-13 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for status post tear, medial meniscus of the right knee. 2. Entitlement to an initial evaluation in excess of 10 percent for limitation of flexion of the right knee. 3. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease, L4-L5, to include a separate compensable rating for sciatic neuropathy of the right lower extremity. 4. Entitlement to an initial evaluation in excess of 20 percent for sciatic neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from May 1970 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Status post tear, medial meniscus of the right knee is not manifested by severe lateral instability or subluxation. 2. Limitation of flexion of the right knee is not manifested by moderate limitation of function due to limitation of motion. 3. Degenerative disc disease, L4-L5, is not manifested by limitation of forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 4. Sciatic neuropathy of the left lower extremity is not manifested by severe incomplete paralysis. 5. There is sciatic neuropathy of the right lower extremity that is attributable to the service-connected degenerative disc disease, L4-L5, which is manifested by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for status post tear, medial meniscus of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5257 (2007). 2. The criteria for an initial evaluation in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.55, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2006). 3. The criteria for an evaluation in excess of 20 percent for degenerative disc disease, L4-L5, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5292 (2003), 5243 (2007). 4. The criteria for an initial evaluation in excess of 20 percent for sciatic neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, 4.124a, Diagnostic Code 8520 (2007). 5. The criteria for an evaluation of 10 percent, but no more, for sciatic neuropathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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). Such notice should 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; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a claim for increase, section 5103(a) requires that the Secretary (1) notify the claimant that to substantiate a claim the claimant must provide, or ask the Secretary 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 that worsening has 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) notify the claimant that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this case, the veteran was sent a notification letter in July 2006, which is after initial consideration of the claims (which timing will be addressed below) and which informed him he could submit evidence showing that his service-connected disabilities had increased in severity. He was told that such evidence may be from a doctor, but could also be from individuals who are able to describe from their knowledge and personal observations in what manner the veteran's disability had become worse. VA noted that the veteran could submit a statement describing his symptoms, their frequency and severity, and another additional disablement caused by his disability. The veteran was also told to submit evidence about the effect that worsening had on his employment and daily life and that disability ratings from 0 to 100 percent are assigned depending on the level of severity of the disability, which criteria are published in Part 4 of Chapter 38 of the Code of Federal Regulations. Here, the only error that appears to have occurred is in the timing of the letter, as it was not sent until years after the veteran filed his claims for increase. Regardless, the Board finds that the veteran has not been prejudiced by such. See Bernard v. Brown, 4 Vet. App. 384 (1993). He has been successful in obtaining increased ratings since filing his claim in April 2001. Specifically, he has been granted a separate 10 percent evaluation for the service-connected right knee and a separate 20 percent evaluation for sciatic neuropathy in the left lower extremity as a result of degenerative disc disease in his lumbar spine. He went from a combined evaluation of 40 percent to a combined evaluation of 60 percent. Additionally, after notice was sent to the veteran, the RO readjudicated the claims in December 2007 and again in January 2008. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. Id. VA provided examinations in connection with the claims for increase. VA obtained VA clinical records dated from 2001 to 2005. The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings Under the applicable criteria, 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; 38 C.F.R. Part 4 (2007). Separate diagnostic codes identify the various disabilities. 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. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran is contesting the disability evaluations that were assigned following the grant of separate evaluations for limitation of flexion of the right knee and sciatic neuropathy of the left lower extremity. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found, which is called "staged" ratings. Fenderson v. West, 12 Vet. App 119 (1999). In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue (such as the issues pertaining to status post tear, medial meniscus of the right knee and degenerative disc disease, L4-L5), it is the present level of disability that is of primary concern, but staged ratings may be applied for different periods of time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (applying staged ratings when assigning an increased rating in a manner similar to what is done at the initial rating stage pursuant to Fenderson). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The evaluation of musculoskeletal disabilities also includes consideration of functional loss due to pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination, and of impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2006); DeLuca v. Brown, 8 Vet. App. 202 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Right knee disability 1. Status post tear, medial meniscus of the right knee Service connection for status post tear, medial meniscus of the right knee was granted by means of an April 1970 rating decision and assigned a 20 percent evaluation, effective March 31, 1971. The veteran has remained at the 20 percent evaluation since that time. The service-connected status post tear, medial meniscus of the right knee is evaluated under Diagnostic Code 5257. Under that Diagnostic Code, it states that impairment of the knee other than ankylosis, as measured by the degree of recurrent subluxation or lateral instability, warrants a 20 percent evaluation when the disability is moderate and a 30 percent evaluation when the disability is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an evaluation in excess of 20 percent based upon lateral instability or subluxation. Specifically, the preponderance of the evidence is against a finding that the veteran has any more than moderate instability of the right knee. For example, a May 2001 VA outpatient treatment report shows that the examiner stated that when he examined the veteran's right knee, the anterior cruciate ligament was "very stable." A June 2001 outpatient treatment report shows that anterior drawer and Lachman's tests were negative. An August 2003 VA examination report shows the examiner found "moderate laxity" with positive McMurray's test. A January 2008 VA examination report shows the examiner found the veteran's right knee to be stable with "only minimal laxity anteriorly." None of the medical evidence establishes that the veteran's laxity is severe. The Board notes the application of DeLuca to the evaluation of the veteran's service-connected disability under Diagnostic Code 5257 is not appropriate, as that Diagnostic Code does not contemplate limitation of motion and thus could not serve as a basis to the grant of an increased evaluation. See Johnson v. Brown, 9 Vet. App 7, 11 (1996) (holding that Diagnostic Code 5257 is not predicated on loss of range of motion and thus 38 C.F.R. §§ 4.40 and 4.45 are not applicable to a disability rated under that Diagnostic Code). The Board finds that the evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). The overall disability picture with respect to the service-connected status post tear, medial meniscus of the right knee now under consideration does not show any significant impairment beyond that contemplated in the 20 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). 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). The veteran is competent to report his symptoms; however, to the extent that he has asserted he warrants more than a 20 percent evaluation for his right knee based upon lateral instability and/or subluxation, the objective clinical findings do not establish a basis for a higher evaluation. The preponderance of the evidence is against a finding that the service-connected status post tear, medial meniscus of the right knee has severe instability for the reasons stated above. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. 2. Limitation of flexion of the right knee In a December 2004 decision, a Decision Review Officer granted a separate 10 percent evaluation for limitation of flexion of the right knee, effective April 20, 2001. While the veteran was essentially granted an increased evaluation for his right knee, the 10 percent evaluation is not the maximum evaluation for the disability, and thus the appeal continues. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in controversy where less than the maximum available benefit is awarded). The veteran's service-connected limitation of flexion of the right knee is rated under Diagnostic Code 5010-5260. Under that Diagnostic Code, it states that traumatic arthritis be established by x-ray findings will be rated on the basis of limitation of motion. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5010 (2007). The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2007). Under Diagnostic Code 5260, flexion limited to 60 degrees warrants a 0 percent evaluation; flexion limited to 45 degrees warrants a 10 percent evaluation; and flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2007). Under Diagnostic Code 5261, extension limited to 5 degrees warrants a 0 percent evaluation; extension limited to 10 degrees warrants a 10 percent evaluation; and extension limited to 15 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2007). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of an evaluation in excess of 10 percent for painful motion of the right knee with traumatic arthritis. The veteran has not shown any limitation of extension in that his extension has been 0 degrees in the two examination reports in 2003 and 2008. He has limitation of flexion, but it has been, at worst, to 90 degrees, which would not warrant a 20 percent evaluation under Diagnostic Code 5260. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Thus, an evaluation in excess of 10 percent based upon actual limitation of motion would not be warranted. An increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. 202 (discussing 38 C.F.R. §§ 4.40, 4.45). The veteran has complained of pain, which has been substantiated by medical professionals when he has been examined, and which pain is contemplated by the 10 percent evaluation. Examiners have noted that the veteran does not have any atrophy, which fails to show disuse of the right leg. See August 2003 and January 2008 VA examination reports. In the August 2003 examination report, the examiner stated there was easy fatigability but no incoordination. This examiner noted the veteran's limitation of flexion would decrease to 60 degrees after repeated walking. That limitation of flexion would not warrant a 20 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Therefore, even the functional impairment does not establish a basis to grant a higher evaluation. There was no increased limitation of flexion after repeated use at the time of the January 2008 VA examination. The preponderance of the evidence is against a finding that the right knee causes any more than mild functional impairment with respect to limitation of motion. The Board notes that the veteran has complained of severe pain in connection with his right knee. He has two, separate evaluations for his right knee, which combine to a 30 percent evaluation, which contemplates a severe knee disability. The Board finds that the evidence does not present such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected limitation of flexion of the right knee does not show any significant impairment beyond that contemplated in the 10 percent rating assigned. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. For the reasons stated above, an evaluation in excess of 10 percent is not warranted for limitation of flexion of the right knee. The preponderance of the evidence is against the veteran's claim, and the benefit-of-the-doubt rule is not for application. Gilbert, 1 Vet. App. at 55. Accordingly, in view of the denial of entitlement to increased evaluations for the knee based upon instability and limitation of motion, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Fenderson and Hart, both supra. B. Low back disability Service connection for a low back disability as being secondary to the service-connected status post tear, medial meniscus of the right knee was granted in a May 1997 Board decision. The RO effectuated this award in a November 1997 rating decision and assigned a 10 percent evaluation, effective September 9, 1993. The veteran appealed the assignment of the 10 percent evaluation, and stated he would be satisfied with a 20 percent evaluation. A 20 percent evaluation was subsequently awarded in a December 1998 rating decision. During this appeal, in a December 2004 rating decision, a Decision Review Officer separated the veteran's orthopedic symptoms associated with the degenerative disc disease, L4- L5, from the neurological symptoms in the left lower extremity and provided separate evaluations for these symptoms. The Board agrees that evaluating the orthopedic and neurological symptoms separately provides the veteran with the higher evaluation. The Board is additionally granting a separate 10 percent evaluation for the neurological symptoms in the right lower extremity, which will be addressed below. Additionally, it must be noted that the evidence indicates the veteran has sustained two additional low back injuries during the appeal period. At the time of the August 2003 VA examination, the veteran reported he had been unemployed since June 2002, when he hurt his back. At the time of the January 2008 VA examination, the veteran stated he was a truck driver and was currently receiving workman's compensation because he had a back injury on the job in April 2007. This examiner noted specifically that he could not differentiate the symptoms attributable to the service- connected low back disability from the symptoms attributable to the work injury. Thus, the Board must attribute the veteran's current symptoms to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). 1. Orthopedic symptoms The criteria for evaluating diseases or injuries of the spine were amended in September 2002 and again in September 2003. When a law or regulation changes after a claim has been filed but before the administrative appeal process is concluded, VA must apply the regulatory version that is more favorable to the veteran. Therefore, the Board must evaluate the veteran's claims under both the former criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The Board will lay out the former criteria and the amended criteria for the benefit of comparing the criteria. Prior to September 2003, Diagnostic Code 5292, which addressed limitation of motion of the lumbar spine, provided for an evaluation of 20 percent when limitation of motion was moderate and 40 percent when limitation of motion was severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Prior to September 2002, Diagnostic Code 5293, which addressed intervertebral disc syndrome, provided for an evaluation of 20 percent for moderate intervertebral disc syndrome with recurring attacks and a 40 percent evaluation for severe intervertebral disc syndrome with recurring attacks and intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Evidence of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc and with little intermittent relief warranted a 60 percent rating. Id. As of September 2002, intervertebral disc syndrome was evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months - 40 percent disabling. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months - 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (September 2002). For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Id. When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Id. at Note (2). Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. As of September 2003, the criteria are as follows: Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (September 2003). As of September 2003, the criteria for evaluating intervertebral disc syndrome did not change but the cite changed to 38 C.F.R. § 4.71a, Diagnostic Code 5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for degenerative disc disease, L4-L5. In considering the former criteria for limitation of motion of the lumbar spine, the evidence does not show that he has severe limitation of motion. For example, at the time of the August 2003 VA examination, the veteran's flexion was to 80 degrees without pain and to 60 degrees with pain. Extension was to 10 degrees, left lateral flexion was to 15 degrees, right lateral flexion was to 25 degrees, and rotation was to 20 degrees, bilaterally. At the time of the January 2008 VA examination, he was able to forward flex to 60 degrees without pain and to 45 degrees with pain. Extension was to 5 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 15 degrees, and rotation was to 25 degrees, bilaterally. Such ranges of motion would not warrant a finding that the veteran had severe limitation of motion of the lumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5292. In reviewing the amended criteria, the Board notes that no more than a 20 percent evaluation would be warranted based upon limitation of motion. The veteran's limitation of flexion has been, at worst, to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. His combined range of motion has been, at worst, 135 degrees. Such values would not meet the criteria for an evaluation in excess of 20 percent. Id. Considering the veteran's service-connected lumbar spine disorder under Diagnostic Code 5293, the Board finds that this Diagnostic Code would not assist him in obtaining a higher evaluation. This Diagnostic Code contemplates neurological symptoms, for which the veteran has been awarded a separate evaluation beyond the 20 percent for limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). The 20 percent evaluation for the orthopedic symptoms and the 20 percent evaluation for the neurological symptoms in the left lower extremity and the 10 percent evaluation for the neurological symptoms in the right lower extremity combine to 40 percent. The evidence does not support a finding that the veteran has pronounced intervertebral disc syndrome to warrant a 60 percent evaluation under Diagnostic Code 5293. That evaluation contemplates symptoms compatible with sciatic neuropathy, characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc and with little intermittent relief, which the veteran does not have. An increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. 202 (discussing 38 C.F.R. §§ 4.40, 4.45). At the time of the August 2003 VA examination, the examiner stated that after repeated motion, the veteran could flex to 60 degrees and extend to 5 degrees. At the time of the January 2008 examination, the examiner stated the veteran could not do repetitive motion because of the work-related injury. Under this circumstance, the Board finds that it will not attribute this inability to the service-connected disability. The evidence of record does not establish that the veteran would warrant an increased rating due to functional limitation. His lessened flexion in August 2003 would still not warrant a higher evaluation. The Board finds that the evidence does not present such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected degenerative disc disease, L4-L5, does not show any significant impairment beyond that contemplated in the 10 percent rating assigned. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. Accordingly, in view of the denial of entitlement to increased evaluations for degenerative disc disease, L4-L5, based upon limitation of motion, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Hart, supra. 2. Neurological symptoms As noted above, the RO has evaluated the veteran's neurological symptoms associated with the service-connected degenerative disc disease, L4-L5 separately from the orthopedic symptoms. The neurological symptoms in the left lower extremity are evaluated under Diagnostic Code 8520. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, and moderately severe incomplete paralysis warrants a 40 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2007). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. 38 C.F.R. § 4.124a (the first paragraph under the Diseases of the Peripheral Nerves, Schedule of Ratings). 1. Left lower extremity After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 20 percent for the left lower extremity, as the evidence does not show severe incomplete paralysis. For example, at the time of the August 2003 VA examination, the examiner noted the veteran had pain in his lower extremity when he would get up from a seated position. Straight leg raising was positive at 60 degrees. At the time of the January 2008 VA examination, the examiner noted that sensation was intact. Position, vibratory, light touch, and pin prick sensation were intact. Strength was 5/5 in the left lower extremity. Deep tendon reflexes were reactive and 2/4. Such is evidence against a finding that the veteran's incomplete paralysis is any more than moderate in degree and thus no more than 20 percent disabling. Accordingly, in view of the denial of entitlement to an increased evaluation, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Fenderson, supra. 2. Right lower extremity The Board finds that a separate 10 percent evaluation is warranted for neurological symptoms in the right lower extremity. At the time of the January 2008 VA examination, the examiner noted that there was a loss of sensation in the right lower extremity in the calf in the L4-L5 distribution. Strength in the right lower extremity was 4/5. The Board finds that such evidence establishes that the veteran has mild incomplete paralysis of the right lower extremity. However, the preponderance of the evidence is against a finding that the incomplete paralysis of the right lower extremity is moderate in degree. The examiner described the loss of sensation as "mild loss of vibratory and pin prick sensation on the right lateral calf." This does not indicate moderate incomplete paralysis. The Board finds this separate 10 percent evaluation is warranted as of January 4, 2008, which the date of the VA examination. See Fenderson, supra. Prior to this examination, there was a lack of evidence of neurological symptoms in the right lower extremity. For example, at the August 2003 VA examination, the examiner stated that deep tendon reflexes were equal bilaterally, and noted there was no sensory loss. The Board finds that the evidence does not present such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the neurological symptoms associated with both lower extremities does not show any significant impairment beyond that contemplated in the 10 percent rating assigned. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. In sum as to the lower extremities, the preponderance of the evidence is against an initial evaluation in excess of 20 percent for the left lower extremity and in excess of 10 percent for the right lower extremity for the reasons stated above. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. (CONTINUED ON NEXT PAGE) ORDER An increased rating for status post tear, medial meniscus of the right knee is denied. An increased rating for limitation of flexion of the right knee is denied. An increased rating for degenerative disc disease, L4-L5 is denied. An increased rating for sciatic neuropathy of the left lower extremity is denied. A separate 10 percent evaluation, but no more, for sciatic neuropathy of the right lower extremity is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs