Citation Nr: 0814713 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 00-22 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased disability rating for traumatic arthritis of the right knee, evaluated as 30 percent disabling from February 3, 2000, to February 11, 2002. 2. Entitlement to an increased disability rating for traumatic arthritis of the right knee, evaluated as 40 percent disabling since February 12, 2002. 3. Entitlement to an increased disability rating for traumatic arthritis of the left knee, currently evaluated as 10 percent disabling. 4. Entitlement to an increased disability rating for degenerative joint disease of the lumbar spine, currently evaluated as 20 percent disabling. ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from March 1943 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2000 rating action of the Department of Veterans Affairs Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO, in pertinent part, granted an increased rating from 10 percent to 20 percent for the service-connected traumatic arthritis of the right knee, effective from February 3, 2000; denied a disability evaluation greater than 10 percent for the service-connected traumatic arthritis of the left knee; and denied a disability rating greater than 10 percent for the service-connected degenerative joint disease of the lumbar spine. In June 2001, the Board granted increased ratings of 30 percent for the service-connected traumatic arthritis of the veteran's right knee and 20 percent for the service-connected degenerative joint disease of his lumbar spine but denied a disability evaluation greater than 10 percent for the service-connected traumatic arthritis of the left knee. In an April 2002 rating action, the RO effectuated the Board's decision. In so doing, the RO awarded a 30 percent evaluation for the service-connected right knee disability from February 3, 2000, a 40 percent rating for this disorder from February 12, 2002 (the date of a current VA examination), and a 20 percent evaluation for the service-connected degenerative joint disease of the lumbar spine, from February 3, 2000. The veteran appealed. In March 2002, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion For Remand (Joint Motion) and, in so doing, vacated the Board's June 2001 decision. The Board remanded these increased rating issues in July 2003 and denied them in May 2004. Thereafter, in February 2005, the Court granted a Joint Motion and, in so doing, vacated the Board's May 2004 decision. Pursuant to this second and most recent Joint Motion, the Board remanded to the RO the increased rating issues on appeal for further evidentiary and due process development. Following completion of the requested actions as well as a continued denial of these increased rating claims, the RO, in February 2008, returned the case to the Board for further appellate review. Further review of the claims folder indicates that, by a September 2007 rating action, the RO granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective from February 12, 2002. The RO included the issue of entitlement to an effective date earlier than February 12, 2002, for the grant of the TDIU in the supplemental statement of the case (SSOC) issued in December 2007, even though the veteran has not at any time after receiving notice of the award of the TDIU presented any evidence or argument in support of this earlier effective date claim. As the veteran has at no time expressed disagreement with the effective date assigned to the grant of a TDIU, the Board must conclude that the issue of entitlement to an effective date earlier than February 12, 2002, for the grant of a TDIU is not in appellate status before the Board. FINDINGS OF FACT 1. Between February 3, 2000, and February 11, 2002, the veteran's right knee disability was manifested by flexion to 115 degrees with pain at the beginning of motion but extension to -15 degrees and no ankylosis, instability, edema, effusion, tenderness, redness over the joint, dislocation, recurrent subluxation, or any additional limitation of motion due to pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. 2. Since February 12, 2002, the right knee disability has been manifested by flexion to no worse than 100 degrees (with pain at 100 degrees) but normal extension (no worse than -10 degrees without pain) and no dislocation, recurrent subluxation, ankylosis, painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal (or guarding) movement, or objective evidence of additional limitation of motion due to pain, weakness, fatigue, or lack of endurance after repetitive use. 3. The veteran's left knee disability is manifested by flexion to no worse than 100 degrees (with pain at 100 degrees) but normal extension (no worse than -10 degrees without pain) and no dislocation, recurrent subluxation, ankylosis, painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal (or guarding) movement, or objective evidence of additional limitation of motion due to pain, weakness, fatigue, or lack of endurance after repetitive use. 4. The veteran's lumbar spine disability is manifested by forward flexion no worse than 70 degrees (with mild tenderness at 75 degrees) and backward extension no worse than 20 degrees but bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees (with mild tenderness at 30 degrees) and no evidence of muscle spasm, muscle atrophy, deformity, or objective sensory or motor abnormalities. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent from February 3, 2000, to February 11, 2002, for the traumatic arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5013A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5260, 5261 (2007). 2. The criteria for a disability rating greater than 40 percent since February 12, 2002, for the traumatic arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5003, 5010, 5260, 5261 (2007). 3. The criteria for a disability rating greater than 10 percent for the traumatic arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5003, 5010, 5260, 5261 (2007). 3. The criteria for a disability rating greater than 20 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5292 (effective prior to Sept. 26, 2003); 38 C.F.R. § 4.71a, DCs 5003, 5242 (effective since Sept. 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties To Notify And To Assist The Veterans Claims Assistance Act of 2000 (VCAA), which was enacted on November 9, 2000, eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Since the enactment of the law, the VCAA has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA and to those claims which were filed before the date of enactment but which were not yet final as of that date. During the pendency of the current appeal, and specifically on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that, upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, 19 Vet. App. at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. With regard to increased rating claims in particular, § 5103(a) requires, at a minimum, that the Secretary 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. Further, 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. Additionally, the claimant must be notified 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. 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). These notification requirements were partially satisfied by a January 2006 letter issued to the veteran. In particular, that letter informed him that, to substantiate his compensable rating claim, he must submit evidence that his service-connected right knee, left knee, and lumbar spine disorders had increased in severity. The letter specifically stated that such evidence may include pertinent treatment records (such as doctors' statements, physical and clinical evaluation findings, laboratory and radiographic test results, and dates of examinations, testing, and treatment) and statements from other individuals "who are able to describe from their knowledge and personal observations in what manner . . . [his] disability has become worse." Also, the October 2000 statement of the case (SOC), as well as numerous supplemental SOCs (SSOCs) subsequently issued provided the veteran with specific notice of the relevant rating (Diagnostic Code) criteria for these service-connected disorders. Further, the January 2006 correspondence notified the veteran that VA would make reasonable efforts to help him obtain necessary evidence with regard to his increased rating issues but that he must provide enough information so that the agency could request the relevant records. The letter also informed him of his opportunity to submit "any other evidence or information that . . . [he] think[s] . . . [would] support . . . [his] claim" as well as "any evidence in . . . [his] possession that pertains to . . . [his] claim." See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II) and VAOPGCPREC 1-2004 (February 24, 2004). See also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Clearly, none of these documents were issued before the agency of original jurisdiction's (AOJ's) initial denial of the veteran's increased rating claims in October 2000. The Board finds, however, that any timing error was not prejudicial. This is so because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way (most recently) of the SSOC issued in December 2007. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Pelegrini II, 18 Vet. App. at 122; see also VAOPGCPREC 7-2004 (July 16, 2004); Mayfield v. Nicholson, 444 F.3d at 1333. The Board further acknowledges that the veteran has not been informed of the type of evidence necessary to establish an effective date (element #5). See Dingess/Hartman, 19 Vet. App. at 488. However, as will be discussed in the following decision, the Board finds that the evidence of record does not support a grant of the veteran's increased rating claims. Consequently, no effective dates will be assigned. Thus, the Board finds that there can be no possibility of any prejudice to the veteran in proceeding with the issuance of a final decision of the increased rating claims adjudicated in this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Any VCAA notification errors have not affected the essential fairness of the current adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). This is so because evidence of record demonstrates that the veteran has actual knowledge of the criteria necessary for an increased rating for his service-connected bilateral knee and lumbar spine disabilities. See Vazquez-Flores, 22 Vet. App. 37 (2008) (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (which holds that "[a]ctual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim")). In the January 2006 letter, the RO informed the veteran of his opportunity to submit his own statement that "completely describe[s] . . . [his] symptoms, their frequency and severity, and other involvement, extension and additional disablement caused by . . . [his] disability." Moreover, the prior June 2001 and May 2004 Board decisions, which were vacated by the Court, provided the specific rating criteria (e.g., diagnostic codes) pertinent to the veteran's service-connected bilateral knee and lumbar spine disabilities. In fact, at the several pertinent VA examinations conducted during the current appeal, the veteran described the specific symptoms that he experiences in his knees and low back. Such statements exhibit an understanding of the criteria necessary for increased ratings for his service-connected bilateral knee and lumbar spine disabilities. Moreover, the Board finds that the duty to assist provisions of the VCAA have been met with respect to the increased rating claims adjudicated in this decision. All relevant treatment records adequately identified by the veteran have been obtained and associated with his claims folder. In addition, he has been accorded pertinent VA examinations. Accordingly, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran in the development of the issues on appeal. Under the circumstances of this case, additional efforts to assist the veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case and that such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Importantly, the veteran has pointed to no other pertinent evidence which has not been obtained. Consequently, the Board will proceed to adjudicate the following increased rating issues on appeal, based upon the evidence currently of record. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b) (2007); Pelegrini II; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2007). Initially, by a January 1998 rating action, the RO, in pertinent part, granted service connection for post-traumatic arthritis of the right knee (10 percent, effective from July 1997), post-traumatic arthritis of the left knee (10 percent, effective from July 1997), and degenerative joint disease (osteoarthritis) of the lumbar spine (10 percent, effective from July 1997). In the appealed decision dated in October 2000, the RO, in relevant part, granted an increased rating from 10 percent to 20 percent for the service-connected traumatic arthritis of the right knee (effective from February 3, 2000). In June 2001, the Board, in pertinent part, granted increased ratings of 30 percent for the service-connected traumatic arthritis of the veteran's right knee and 20 percent for the service-connected degenerative joint disease of his lumbar spine. In the April 2002 rating action, the RO effectuated the Board's decision. In so doing, the RO awarded a 30 percent evaluation for the service-connected right knee disability from February 3, 2000, a 40 percent rating for this disorder from February 12, 2002 (the date of a current VA examination), and a 20 percent evaluation for the service-connected degenerative joint disease of the lumbar spine, from February 3, 2000. These service-connected disabilities remain evaluated as follows: 30 percent from February 3, 2000, to February 11, 2002, and 40 percent since February 12, 2002, for the traumatic arthritis of the right knee; 10 percent for the traumatic arthritis of the left knee, and 20 percent for the degenerative joint disease of the lumbar spine. Where entitlement to compensation has already been established and an increase in disability rating is at issue, however, the present level of disability is of primary concern. Although a review of the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2007). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2007). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. §§ 4.2, 4.3 (2007). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). A. Rating for Right Knee Disabilities According to the relevant diagnostic code, traumatic arthritis is rated based on limitation of motion of the affected part(s), as with degenerative arthritis. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2007). Normal flexion and extension of the knee joint range from 140 degrees to zero degrees. 38 C.F.R. § 4.71, Plate II (2007). A compensable rating of 10 percent will be assigned with evidence of limitation of flexion of the leg to 45 degrees. 38 C.F.R. § 4.71a, DC 5260 (2007). The next higher evaluation of 20 percent requires evidence of limitation of flexion of the leg to 30 degrees. Id. The highest rating allowable pursuant to this diagnostic code, 30 percent, necessitates evidence of limitation of flexion of the leg to 15 degrees. Id. Limitation of extension of the leg to 10 degrees will result in the assignment of a 10 percent evaluation. 38 C.F.R. § 4.71a, DC 5261 (2007). The next higher rating of 20 percent requires evidence of limitation of extension of the leg to 15 degrees. Id. A 30 percent evaluation necessitates evidence of limitation of extension of the leg to 20 degrees. Id. A 40 percent rating requires evidence of limitation of extension of the leg to 30 degrees. Id. The highest evaluation allowable pursuant to this diagnostic code, 50 percent, necessitates evidence of limitation of extension to 45 degrees. Id. In the absence of limitation of motion, a 10 percent rating will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Id. Also, a 20 percent evaluation will be awarded with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id. These 10 percent and 20 percent evaluations based on X-ray findings may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Note 1 following DC 5003 (2007). Although regulations recognize that a part which becomes painful on use must be regarded as seriously disabled, see 38 C.F.R. §§ 4.40 and 4.45, these provisions are qualified by specific rating criteria applicable to the case at hand. As the Board has discussed, evaluation of the service-connected traumatic arthritis of both knees requires consideration of any associated limitation of motion of these joints. See 38 C.F.R. § 4.71, Plate II & § 4.71a, DC 5003, 5010, 5260, 5261 (2007). Problems such as pain on use must be considered when evaluating the veteran's disability. Specifically, when a diagnostic code provides for compensation based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and the examinations upon which rating decisions are based must adequately portray the extent of the functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). See also 38 C.F.R. § 4.59 (2007). Throughout the current appeal, the veteran has contended that the service-connected traumatic arthritis of both of his knees is more severe than the current evaluations indicate. In particular, he maintains that his service-connected bilateral knee disabilities are manifested by pain, stiffness, intermittent swelling, frequent crepitus, intermittent buckling, and rare locking. These lay descriptions are deemed to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, the lay descriptions of these service-connected disabilities must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. From February 3, 2000, to February 11, 2002 Evidence of record does not reflect any inpatient or outpatient treatment for the service-connected traumatic arthritis of the veteran's right knee between February 3, 2000, and February 11, 2002. In March 2000, however, he did undergo a VA examination of his right knee. At that time, he complained of constant pain, recurrent swelling, and occasional locking and "giving out" but denied any dislocation or recurrent subluxation. Physical examination of his right knee demonstrated extension to -15 degrees and flexion to 115 degrees with pain at the beginning of motion but no ankylosis, instability, edema, effusion, tenderness, or redness over the joint. As these examination results illustrate, the veteran exhibited limitation of flexion of his right knee to 115 degrees and more-than-normal extension of this joint (to -15 degrees). 38 C.F.R. § 4.71, Plate II (2007). Clearly, a disability rating greater than the currently-assigned evaluation of 30 percent for his service-connected right knee disability between February 3, 2000, and February 11, 2002, is not warranted based on impairment resulting from limitation of extension of this joint under DC 5261 (which require evidence of limitation of extension of the leg to 30 degrees, for the assignment of a 40 percent rating), or DC 5260 (which indicates that the highest rating allowable for impairment resulting from limitation of flexion of the leg is 30 percent, which requires evidence of limitation of extension of the leg to 15 degrees). The Board has also considered the appropriateness of separate compensable ratings based upon limitation of flexion and limitation of extension of the veteran's right knee. See VAOPGCPREC 9-2004 (Sept. 2004) (in which the VA General Counsel determined that separate ratings may be awarded for disability of the same joint based upon findings of limitation of flexion and limitation of extension of the leg). Importantly, however, as the Board has noted, the March 2000 VA examination of the veteran's right knee showed more-than-normal extension and no worse than 115 degrees limitation of flexion of this joint. Further, the 30 percent evaluation that the veteran received for his right knee disability between February 3, 2000, and February 11, 2002, is the highest rating allowable based upon limitation of flexion of the leg. As such, separate compensable evaluations, based upon objective findings of limitation of flexion and limitation of extension of the veteran's right knee are not warranted for the period from February 3, 2000, to February 11, 2002. 38 C.F.R. § 4.71a, DCs 5260, 5261 (2007). Between February 3, 2000, and February 11, 2002, the veteran described constant pain and an inability to walk more than 100 feet without pain. He also reported sometimes using a walking cane, crutches, or a knee brace. In fact, the March 2000 VA examiner observed that the veteran walked with his right knee slightly flexed. Importantly, however, the March 2000 VA examination of the veteran's right knee demonstrated no edema, effusion, tenderness, or redness over the joint. Further, the examiner observed that the veteran had no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. Based on these evaluation findings, the Board concludes that the currently assigned 30 percent rating for the service-connected traumatic arthritis of the right knee between February 3, 2000, and February 11, 2002, adequately portrayed the functional impairment, pain, and weakness that the veteran experienced as a consequence of use of this joint during that time period. See DeLuca, 8 Vet. App. at 204-207. See also 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260 & 5261 (2007). Of particular significance in the present case is the fact that, despite the veteran's complaints of constant pain, recurrent swelling, and occasional locking and "giving out" between February 3, 2000, and February 11, 2002, the VA examination of this joint provided no more than mild findings. Under these circumstances, therefore, there is no basis to assign at any time during that time period a disability rating greater than the currently assigned 30 percent for the traumatic arthritis of the right knee. The veteran's appeal for a disability rating greater than 30 percent for the service-connected traumatic arthritis of his right knee between February 3, 2000, and February 11, 2002, must, therefore, be denied. Since February 12, 2002 Evidence of record does not reflect any inpatient or outpatient treatment for the service-connected traumatic arthritis of the veteran's right knee since February 12, 2002. He has, however, recently undergone three VA examinations of his right knee. At those examinations, he complained of pain, stiffness, intermittent swelling, frequent crepitus, intermittent buckling, and rare locking of his right knee. Examinations of his right knee demonstrated moderately severe degenerative changes and flexion to no worse than 100 degrees (with pain at 100 degrees) but normal extension (no worse than -10 degrees without pain) and no dislocation, recurrent subluxation, ankylosis, painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal (or guarding) movement. As these examination results illustrate, the veteran exhibits limitation of flexion of his right knee to no worse than 100 degrees and more-than-normal extension of this joint (to no worse than -10 degrees). 38 C.F.R. § 4.71, Plate II (2007). Clearly, a disability rating greater than the currently-assigned evaluation of 40 percent for his right knee disability since February 12, 2002, is not warranted based on impairment resulting from limitation of extension of this joint under DC 5261 (which require evidence of limitation of extension of the leg to 45 degrees, for the assignment of a 50 percent rating), or DC 5260 (which indicates that the highest rating allowable for impairment resulting from limitation of flexion of the leg is 30 percent, which requires evidence of limitation of extension of the leg to 15 degrees). As above, the Board has also considered the appropriateness of separate compensable ratings based upon limitation of flexion and limitation of extension of the veteran's right knee. See VAOPGCPREC 9-2004 (Sept. 2004) (in which the VA General Counsel determined that separate ratings may be awarded for disability of the same joint based upon findings of limitation of flexion and limitation of extension of the leg). Importantly, however, as the Board has noted, the recent VA examinations of the veteran's right knee show more-than-normal extension and no worse than 100 degrees limitation of flexion of this joint. Further, the 40 percent evaluation that the veteran has received for his service-connected right knee disability since February 12, 2002, is the more than the highest rating allowable based upon limitation of flexion of the leg. As such, separate compensable evaluations, based upon objective findings of limitation of flexion and limitation of extension of the veteran's right knee are not warranted for the period beginning February 12, 2002. 38 C.F.R. § 4.71a, DCs 5260, 5261 (2007). Since February 12, 2002, the veteran has described diffuse pain over the anterior aspect of the right knee which increases with bending, kneeling, stooping, squatting, climbing, standing or ambulating more than five minutes, and repetitive use. He has also complained of frequent weakness, excess fatigability, a lack of endurance, and occasional incoordination and maintains that his right knee disability interferes with his usual daily activities (due to the discomfort that he experiences in this joint). Recent VA examiners have observed that the veteran walks with a mild limp and uses a cane. Importantly, however, the veteran has denied acute flare-ups or incapacitating episodes. Recent examinations of the veteran's right knee have demonstrated no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal (or guarding) movement. In fact, the February 2006 VA examiner observed that the veteran has fair posture and balance and no callosities, breakdowns, or unusual shoe-wear pattern and concluded that there was "[n]o objective evidence of additional limitation [of motion of the right knee] by pain, weakness, fatigue, lack of endurance, . . . following repetitive use." Based on these evaluation findings, the Board finds that the currently-assigned 40 percent rating for the service-connected traumatic arthritis of the right knee since February 12, 2002, adequately portrays the functional impairment, pain, and weakness that the veteran experiences as a consequence of use of this joint. See DeLuca, 8 Vet. App. at 204-207. See also 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260 & 5261 (2007). Of particular significance in the present case is the fact that, despite the veteran's complaints of pain, stiffness, intermittent swelling, frequent crepitus, intermittent buckling, and rare locking of his right knee since February 11, 2002, multiple VA examinations of this joint have provided no more than mild findings. Under these circumstances, therefore, there is no basis to assign at any time since February 12, 2002, a disability rating greater than the currently assigned 40 percent for the traumatic arthritis of the right knee. The veteran's appeal for a disability rating greater than 40 percent for the service-connected traumatic arthritis of his right knee since February 12, 2002, must, therefore, be denied. B. Rating for Left Knee Disability Evidence of record does not reflect any in-patient or outpatient treatment for the service-connected traumatic arthritis of the veteran's left knee during the current appeal. He has, however, recently undergone several recent VA examinations of his left knee. At those examinations, he complained of pain, stiffness, intermittent swelling, frequent crepitus, intermittent buckling, and rare locking of his left knee. Examinations of his left knee demonstrate moderate to marked degenerative changes and flexion to no worse than 100 degrees (with pain at 100 degrees) but normal extension (no worse than -10 degrees without pain) and no dislocation, recurrent subluxation, ankylosis, painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal (or guarding) movement. As these examination results illustrate, the veteran exhibits limitation of flexion of his left knee to no worse than 100 degrees and more-than-normal extension of this joint (to no worse than -10 degrees). 38 C.F.R. § 4.71, Plate II (2007). Clearly, a disability rating greater than the currently-assigned evaluation of 10 percent for his service-connected left knee disability cannot be awarded based on impairment resulting from limitation of extension or limitation of flexion of this joint under DC 5261 (which require evidence of limitation of extension of the leg to 15 degrees, for the assignment of a 20 percent rating), or DC 5260 (which requires evidence of limitation of flexion of the leg to 30 degrees for a 20 percent rating). The Board has also considered the appropriateness of separate compensable ratings based upon limitation of flexion and limitation of extension of the veteran's left knee. See VAOPGCPREC 9-2004 (Sept. 2004) (in which the VA General Counsel determined that separate ratings may be awarded for disability of the same joint based upon findings of limitation of flexion and limitation of extension of the leg). Importantly, however, as the Board has noted, the recent VA examinations of the veteran's left knee show more-than-normal extension and no worse than 100 degrees limitation of flexion of this joint. Without evidence of limitation of extension to 10 degrees and limitation of flexion to 45 degrees, minimum separate compensable evaluations, based upon objective findings of limitation of flexion and limitation of extension of the veteran's left knee, are not warranted at any time during the current appeal. 38 C.F.R. § 4.71a, DCs 5260 & 5261 (2007). Throughout the current appeal, the veteran has described diffuse pain over the anterior aspect of the left knee which increases with bending, kneeling, stooping, squatting, climbing, standing or ambulating more than five minutes, and repetitive use. He has also complained of frequent weakness, excess fatigability, a lack of endurance, and occasional incoordination and maintains that his left knee disability interferes with his usual daily activities (due to the discomfort that he experiences in this joint). Recent VA examiners have observed that the veteran walks with a mild limp and uses a cane. Importantly, however, the veteran has denied acute flare-ups or incapacitating episodes. Recent examinations of the veteran's left knee have demonstrated no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal (or guarding) movement. In fact, the February 2006 VA examiner observed that the veteran has fair posture and balance and no callosities, breakdowns, or unusual shoe-wear pattern and concluded that there was "[n]o objective evidence of additional limitation [of motion of the right knee] by pain, weakness, fatigue, lack of endurance, . . . following repetitive use." Based on these evaluation findings, the Board finds that the currently-assigned 10 percent rating for the service-connected traumatic arthritis of the left knee adequately portrays the functional impairment, pain, and weakness that he experiences as a consequence of use of this joint. See DeLuca, 8 Vet. App. at 204-207; see also 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261 (2007). Of particular significance in the present case is the fact that, despite the veteran's complaints of pain, stiffness, intermittent swelling, frequent crepitus, intermittent buckling, and rare locking of his left knee, multiple VA examinations of this joint have provided no more than mild findings. Under these circumstances, therefore, there is no basis to assign at any time during the present appeal a disability rating greater than the currently assigned 10 percent for the traumatic arthritis of the left knee. The veteran's appeal for a disability rating greater than 10 percent for the left knee disability must, therefore, be denied. C. Rating for Lumbar Spine Disorder Initially, the Board notes that the schedular criteria by which orthopedic disabilities of the spine are rated changed during the pendency of the appeal. Specifically, on September 23, 2002, a change to a particular diagnostic code (5293) was made effective. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, DC 5293). Further, on September 26, 2003, changes in all spinal rating criteria became effective. See 68 Fed. Reg. 51,454-51,458 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235-5243). The VA General Counsel has held that, where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. A new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. See VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Degenerative arthritis is rated based on limitation of motion of the affected part(s). 38 C.F.R. § 4.71a, DC 5003. According to the old applicable diagnostic code, evidence of moderate limitation of motion of the lumbar spine warrants the assignment of a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5292. The highest evaluation allowable pursuant to this diagnostic code, 40 percent, requires evidence of severe limitation of motion of the lumbar spine. According to the new rating criteria pertinent to evaluating degenerative arthritis of the spine, which became effective on September 26, 2003, a 20 percent disability rating requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 6 degrees; 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. 38 C.F.R. § 4.71a, DC 5242. A 40 percent disability rating necessitates evidence of forward flexion of thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating necessitates evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. The highest disability evaluation allowable under this Diagnostic Code, 100 percent, requires evidence of unfavorable ankylosis of the entire spine. Id. The new spinal rating criteria also provides that any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment should be evaluated separately, under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Note 1 following General Rating Formula for Diseases and Injuries of the Spine (2007). Although regulations recognize that a part which becomes painful on use must be regarded as seriously disabled, see 38 C.F.R. §§ 4.40, 4.45, these provisions are qualified by specific rating criteria applicable to the case at hand. As the Board has discussed, evaluation of the veteran's service-connected lumbar spine disability requires consideration of any associated limitation of motion. See 38 C.F.R. § 4.71a, DCs 5003, 5292 (effective prior to Sept. 26, 2003); 38 C.F.R. § 4.71a, DCs 5003, 5242 (effective since Sept. 26, 2003). Problems such as pain on use should be specifically considered when evaluating the veteran's disability. Specifically, when a Diagnostic Code provides for compensation based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and the examinations upon which rating decisions are based must adequately portray the extent of the functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995); see also, 38 C.F.R. § 4.59 (2007). Evidence of record in the present case does not reflect any inpatient or outpatient treatment for the service-connected degenerative joint disease of the veteran's lumbar spine during the current appeal. He has, however, recently undergone several recent VA examinations of his lumbar spine. At those examinations, he complained of pain, stiffness, and occasional muscle spasm in his low back. Examinations of his low back demonstrate radiographic evidence of mild degenerative changes of the lumbosacral spine and forward flexion no worse than 70 degrees (with mild tenderness at 75 degrees) and backward extension no worse than 20 degrees but bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees (with mild tenderness at 30 degrees) and no evidence of muscle spasm, muscle atrophy, deformity, or objective sensory or motor abnormalities. Such ranges of motion of the lumbar spine clearly do not support a finding of more than moderate limitation of motion of the veteran's lumbar spine. See 38 C.F.R. § 4.71a, Note 2 following General Rating Formula for Diseases and Injuries of the Spine (2007) (providing the normal ranges of motion of the thoracolumbar spine). As such, the next higher rating of 40 percent, based upon limitation of motion of the lumbar spine is not warranted pursuant to the old rating criteria. 38 C.F.R. § 4.71a, DC 5292. Further, the veteran clearly has not exhibited limitation of forward flexion of his thoracolumbar spine to 30 degrees or less, nor has favorable ankylosis of the entire thoracolumbar spine been shown. In fact, the recent physical examinations of the veteran's lumbar spine reflected limitation of forward flexion no worse than 70 degrees, normal posture, and no deformity. Thus, the next higher evaluation of 40 percent for the veteran's service-connected lumbar spine disorder, pursuant to the new rating criteria, is not warranted. 38 C.F.R. § 4.71a, DC 5242 (2007). Moreover, as the Board has discussed in this decision, no neurological abnormalities have been found on multiple examinations. Thus, a separate evaluation for objective neurological abnormalities associated with the service-connected degenerative joint disease of the veteran's lumbar spine is not warranted. 38 C.F.R. § 4.71a, Note 1 following General Rating Formula for Diseases and Injuries of the Spine (2007). Throughout the current appeal, the veteran has described chronic low back pain which increases with bending, lifting, stooping, squatting, kneeling, climbing, prolonged sitting, standing or ambulating more than five minutes, and repetitive use. He has also asserted that his low back pain limits his usual daily activities due to discomfort. Recent VA examiners have observed that the veteran walks with a mild limp and uses a cane. Importantly, however, the veteran has denied acute flare-ups or incapacitating episodes. In addition, recent examinations of the veteran's low back have demonstrated normal posture and no objective evidence of muscle spasm, muscle atrophy, deformity, or objective sensory or motor abnormalities. Based on these evaluation findings, the Board finds that the currently-assigned 20 percent rating for the service-connected degenerative joint disease of the veteran's lumbar spine adequately portrays the functional impairment, pain, and weakness that he experiences as a consequence of use of his low back. See DeLuca, 8 Vet. App. at 204-207. See also 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5292 & 5242. Of particular significance in the present case is the fact that, despite the veteran's complaints of pain, stiffness, and occasional muscle spasm in his low back and objective evidence of some limitation of motion of his low back with mild tenderness, multiple VA examinations of his spine have been otherwise negative. Under these circumstances, therefore, there is no basis to assign at any time during the present appeal a disability rating greater than the currently assigned 20 percent for the degenerative joint disease of the veteran's lumbar spine. The veteran's appeal for a disability rating greater than 20 percent for this service-connected disability must, therefore, be denied. D. Extraschedular Consideration Moreover, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted for any time during the current appeal. That provision provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria, as shown by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. Importantly, the service-connected traumatic arthritis of the right knee, the service-connected traumatic arthritis of the left knee, and the service-connected degenerative joint disease of the lumbar spine have not required frequent periods of hospitalization or even outpatient treatment during the appeal period. In September 2007, the RO awarded a total disability rating based on individual unemployability due to service-connected disability, effective from February 12, 2002. A February 2006 VA examiner concluded that the veteran is unemployable due mainly to his compensably-evaluated service-connected bilateral knee and lumbar spine disabilities. In this regard, the Board further notes that 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned therein. What the veteran has not shown in this case is that his service-connected bilateral knee and lumbar spine disabilities have resulted in unusual disability or impairment that rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate at any time during the current appeal. Accordingly, the Board concludes that consideration of the provisions set forth at 38 U.S.C.A. § 3.321(b)(1) is not warranted for the veteran's service-connected bilateral knee and lumbar spine disorders for any time during the current appeal. ORDER A disability rating greater than 30 percent from February 3, 2000, to February 11, 2002, for the service-connected traumatic arthritis of the right knee is denied. A disability ratings greater than 40 percent from February 12, 2002, for the service-connected traumatic arthritis of the right knee is denied. A disability rating greater than 10 percent for the service-connected traumatic arthritis of the left knee is denied. A disability rating greater than 20 percent for the service-connected degenerative joint disease of the lumbar spine is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs