Citation Nr: 0814994 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 96-42 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent from September 26, 2005, for lumbar strain with lumbar spondylosis. 2. Entitlement to a disability evaluation in excess of 10 percent from February 8, 1996 to September 26, 2005, for lumbar strain with lumbar spondylosis (formerly rated as lumbosacral strain). 3. Entitlement to a disability evaluation in excess of 10 percent for degenerative arthritis of the right knee. 4. Entitlement to a disability evaluation in excess of 10 percent for degenerative arthritis of the left knee. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran had active military service from September 1952 to August 1956, and from September 1960 to March 1971. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Department of Veterans Affairs (VA), Los Angeles, California, Regional Office (RO). In an October 1999 decision, the Board denied the claims then before it. The veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2001 Order, the Court granted a Joint Motion for Remand and vacated and remanded the matter to the Board. The Board remanded the claims in August 2003 and February 2005. When this matter was last before the Board in February 2005, it was remanded to the RO for further development and readjudication. The issues that were then before the Board were entitlement to service connection for arthritis of the neck, entitlement to service connection for degenerative spondylolisthesis, entitlement to a disability evaluation in excess of 10 percent for lumbosacral strain, and entitlement to an increased evaluation for degenerative arthritis of the left and right knees, currently evaluated as 10 percent disabling. Following the completion of the requested development, a January 2006 rating decision granted service connection for neck strain with degenerative disc disease and pain, rated as 10 percent disabling, effective from June 1996. The veteran submitted a notice of disagreement with the evaluation assigned, but did not submit a substantive appeal in response to an October 2007 statement of the case. Thus, the issue is no longer in appellate status. In a January 2006 supplemental statement of the case, the RO continued the denial of an evaluation in excess of 10 percent for the right knee disability, and the denial of an evaluation in excess of 10 percent for the left knee disability. In an August 2006 supplemental statement of the case, the RO granted service connection for lumbar spondylosis (formerly claimed as spondylolisthesis), incorporated it with the service-connected lumbosacral strain under appeal, and granted an increased disability evaluation for the resulting lumbar spondylosis, from 10 percent to 20 percent disabling, effective from September 26, 2005. A supplemental statement of the case was issued in October 2007 and the case was returned to the Board for appellate review. FINDINGS OF FACT 1. Since the date of the current claim for an increased rating, February 8, 1996, service-connected lumbar strain with lumbar spondylosis has been manifested by reduced activities, x-ray evidence of degenerative changes, subjective complaints of low back pain on motion including radiating pain to the groin area, but with no more than slight limitation of motion including any loss of range of motion due to pain, without evidence of neurological findings or the need for significant periods of bedrest due to the low back disability. 2. Since the date of the current claim for an increased rating, degenerative arthritis of the right knee is shown to be manifested by subjective complaints of pain causing a reduction in physical activity, mild degenerative changes on x-ray study; objective evidence of limitation of flexion to 120 degrees secondary to pain; without objective evidence of limitation of extension, including functional impairment secondary to subjective pain; and without objective evidence of instability or lateral subluxation. 3. Since the date of the current claim for an increased rating, degenerative arthritis of the left knee is shown to be manifested by subjective complaints of pain causing a reduction in physical activity, mild degenerative changes on x-ray study; objective evidence of limitation of flexion to 120 degrees secondary to pain; without objective evidence of limitation of extension, including functional impairment secondary to subjective pain; and without objective evidence of instability or lateral subluxation. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating in excess of 20 percent for the service-connected lumbar strain with lumbar spondylosis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.71a, including Diagnostic Codes 5003, 5292, 5293, 5295 (effective prior to September 26, 2003) and Diagnostic Codes 5237, 5243 (effective on September 26, 2003). 2. The criteria for the assignment of a disability rating of 20 percent, but no more, for the service-connected lumbar strain with lumbar spondylosis was met or approximated from February 8, 1996 to September 25, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.71a, including Diagnostic Codes 5003, 5292, 5293, 5295 (effective prior to September 26, 2003) and Diagnostic Codes 5237, 5243 (effective on September 26, 2003). 3. The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected degenerative arthritis of the right knee have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5261, 5262 (2007). 4. The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5261, 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). This appeal has had a lengthy history that dates back prior the advent of the current laws and regulations governing notice and assistance, the Veteran's Claims Assistance Act of 2000 (VCAA). The RO provided the appellant post-initial- adjudication notice by letters dated in March 2006, February 2007, and March 2007. The notification substantially complied with all the requirements of Dingess v. Nicholson, as well as with the requirements set out in Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claims. Given that the foregoing notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. As noted above, however, the initial adjudication of the veteran's claims pre-dated the enactment of the VCAA which required pre-initial adjudication notice. Regardless, even if there was a procedural defect with respect to any element of the required pre-adjudication notice, it has been cured in the subsequent notice without prejudice to the veteran because the veteran's claim was subsequently readjudicated by the RO (see the August 2006, and October 2007 supplemental statements of the case), and because he had a meaningful opportunity to participate effectively in the processing of the claims. That is, he had the opportunity to submit additional argument and evidence. See for example the additional evidence and substantial arguments submitted by the veteran and his attorney throughout this lengthy appeal. None of the notice letters, however, discussed the criteria for increased ratings for each of the disabilities at issue, thus, the duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the claim. Although the appellant received inadequate notice, and that error is presumed prejudicial, the record reflects that the purpose of the notice was not frustrated. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this case, the Board finds that any content-related notice errors did not affect the essential fairness of the adjudication. Specifically, the Board notes that the veteran has been well-represented by legal counsel throughout this appeal. Overton v. Nicholson, 20 Vet. App. 427 (2006). In the pleadings offered by the veteran and his attorney, particularly in pleadings before the Court of Appeals for Veteran's Claims in 2001, they demonstrated actual knowledge as to what would be needed for the successful outcome of each of his claims for increased disability ratings at issue. In the Joint Motion, the veteran, through his attorney, painstakingly set forth in great detail evidence and arguments evincing the specific understanding of the law of the case, including the schedular criteria for the disabilities at issue. In a more recent comprehensive statement submitted by the veteran's attorney in May 2006, the ratings assigned were painstakingly challenged with respect to the veteran's specific disabilities. As noted above, the veteran's claims were subsequently adjudicated in the August 2006 and October 2007 supplemental statements of the case. This actual knowledge renders any pre-adjudicatory section 5103(a) notice error non-prejudicial. Vazquez- Flores, supra. The veteran had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected. See Sanders, 487 F.3d at 489 VA has obtained the service medical records, VA and private post-service medical records, assisted the veteran in obtaining evidence, afforded the veteran the opportunity to give testimony before the RO and Board, and provided the veteran with pertinent medical examinations for the purpose of evaluating the severity of his service-connected disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file. VA does not have the resources, and is under no duty to perform a fishing expedition for putative evidence based upon unsupported allegations. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claims at this time. The Veteran's Contentions The veteran alleges that his service-connected lumbar spine disability, and right and left knee disabilities are more disabling than provided for in the ratings assigned. In general, the veteran and his attorney have argued that he has constant chronic pain in those areas which significantly limits his ability to perform everyday tasks. General Rating Considerations Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "[c]ompensation for service-connected injury is limited to those claims which show present disability" and held: "Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." This holding has been modified in that separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007) . Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." 38 C.F.R. § 4.40. Lumbar strain with Lumbar Spondylosis The veteran's service-connected low back disability is currently characterized as lumbar strain with lumbar spondylosis, and is currently evaluated as 20 percent disabling under diagnostic code 5242, effective from September 26, 2005. It was previously characterized as lumbosacral strain and evaluated as 10 percent disabling from March 1971. The veteran filed the current claim for an increased rating in February 1996. The schedular criteria for the evaluation of back disabilities were changed during the pendency of the adjudication of the veteran's claim. Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. Prior to September 26, 2003, under 38 C.F.R. § 4.71a, Diagnostic Code 5292, pertaining to limitation of motion of the lumbar spine, a 40 percent evaluation is warranted for severe limitation of motion. A 20 percent rating is assigned for moderate limitation of motion. A slight limitation of motion warrants a 10 percent evaluation. Prior to September 26, 2003, under 38 C.F.R. § 4.71a, Diagnostic Code 5295, a 10 percent evaluation is warranted for lumbosacral strain with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating may be assigned when there is severe lumbosacral strain with a listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing with irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002) (effective prior to September 26, 2003). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where the limitation of motion of the specific joint or joints involved is noncompensable, under the applicable diagnostic codes, a maximum rating of 10 percent is warranted where arthritis is shown by x-ray and where limitation of motion is objectively confirmed by evidence of swelling, muscle spasm, or painful motion. In the absence of limitation of motion, but with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. A 10 percent rating is warranted when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The regulations regarding diseases and injuries to the spine, to include intervertebral disc syndrome, were revised effective September 26, 2003. Under these revised regulations, the back disability is evaluated under the formula for rating intervertebral disc syndrome based on incapacitating episodes, diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243. A 100 percent evaluation is warranted for intervertebral disc syndrome with or 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 or for unfavorable ankylosis of the entire spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Note (1) provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) states that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. 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. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. 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. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) directs to separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. As noted above, service connection for the veteran's lumbar strain with lumbar spondylosis, is currently evaluated as 20 percent disabling effective from September 26, 2005, and was previously evaluated as 10 percent disabling prior to September 26, 2005. Separate ratings can be assigned for separate periods of time based on facts found. Hart , 21 Vet. App. at 505. On review of the evidence of record, the Board finds that the veteran's low back disability is appropriately evaluated as 20 percent disabling, but no more than 20 percent disabling from the date of claim, February 8, 1996. Although the Board has reviewed all of the medical evidence of record pertaining to the veteran's claim, the several VA examinations provided to the veteran in the assessment of his back disability provide the most detailed, objective, and profound levels of pathology associated with the veteran's service-connected low back disability. The veteran filed his claim for entitlement to an increased evaluation on February 8, 1996. In a chiropractic record from Dr. R.M.S. dated in February 1996, the veteran reported back pain. A September 1997 report from the chiropractor shows that examination of the spine was within normal limits as of February 1996. Reflexes were all normal. All nerve roots were reportedly normal. Muscular testing was normal. Ranges of motion were 100 percent within normal limits. All identified tests were negative or within normal limits. Strength testing was good. He recommended that the veteran not lift more than 75 pounds. The veteran was provided with a VA examination in March 1996. He reported intermittent cramping in the low back with muscle spasms on a fairly chronic basis. He reported that intermittently his back would go out requiring him to take it easy for several days until he would get back to baseline. The veteran had worked as a truck driver but reported that he had quit driving due to back pain. The veteran also reported limitation in activities such as gardening. On examination there were no postural abnormalities or gross deformity. The musculature of the back was well developed. Forward flexion was to 80 degrees, extension was to 30 degrees. Left lateral flexion was to 40 degrees, right lateral flexion was to 35 degrees. Right rotation was to 45 degrees. Left rotation was to 45 degrees. Under evaluation of objective evidence of pain, the examiner noted that there was a negative straight leg raise and no significant tenderness to palpation or percussion of the spine. There was mild to moderate evidence of pain with range of motion. Sensation and motor function were intact. Radiographs showed Grade I degenerative spondylolisthesis at L4-5 and early degenerative spondylolisthesis at L5-S1. There was a significant amount of hypertrophic areas primarily at the pars articularis and the facet joints. There was sclerosis and an attempt to auto fuse at those levels. The diagnosis was degenerative spondylolisthesis at L4-5, and L5-S1. In April 1996 and July 1996, the veteran was seen by VA for back and other symptoms. The assessment was degenerative joint disease. No examination findings were made with regard to the back. In a July 1996 orthopedic consultation report from Hilltop Medical Group provided by the Social Security Administration, the veteran reported multiple joint pain. He stated that he had current low back pain without lower extremity pain. He stated that this was worse with bending, lifting, and standing. He denied use of crutches, a cane, or a brace. He did not report bladder dysfunction. On examination the veteran was in no distress. His gait was normal. He could heel and toe walk. He used no assistive devices to ambulate. Thigh circumferences were equal. The right calf was larger in circumference than the left calf by one centimeter. All back motions were termed normal. Forward flexion was to 90 degrees. Extension was to 15 degrees. Left and right lateral flexion were to 20 degrees. There was no paravertebral spasm or erythema. There was no tenderness. The contour of the spine was normal. There was a negative straight leg raise test. Sensation and motor function were intact. The diagnosis was low back pain without evidence of radiculopathy, and a reported history of degenerative joint disease of the lumbar spine. The veteran was felt to be able to lift and carry 25 pounds occasionally, and 10 pounds frequently. Pushing and pulling restrictions were the same. Standing, walking, and sitting were not significantly limited. Bending and stooping could be done occasionally. A private x-ray of the lumbar spine from Dr. N.J.R. dated in August 1996 showed degenerative arthritic changes with disc space narrowing. There was a mild degree of degenerative listhesis at multiple levels. In October 1996 the veteran was seen by VA for complaints including back pain. There are no clear findings with regard to the back. VA treatment records from March 1997 note a history of progressive neck and shoulder pain for two years. Etiology was otherwise not discussed. The assessment was cervical spinal stenosis. During a follow-up in April 1997, the veteran reported neck and shoulder pain. He provided a history of a motorcycle accident 25 years before with neck pain at that time. The assessment was spinal stenosis. The veteran had essentially the same complaints on a follow-up in June 1997 and a diagnosis of spinal stenosis was made. The veteran underwent a VA examination in June 1998. He reported constant low back pain with occasional flare-ups during which pain would become severe. He stated that these would occur every month or two and would last for five to seven days. He reported occasional pain into the hip. He denied bladder or bowel problems. There was no numbness in the lower extremities. He claimed that his symptoms were worse with standing, walking, or stretching. He also reported pain with rotation of his back. Forward flexion was to 75 degrees, extension was to 25 degrees. Left lateral flexion was to 30 degrees, right lateral flexion was to 30 degrees. Right rotation was to 30 degrees. Left rotation was to 30 degrees. He had slight pain on range of motion, especially during flexion and extension. Sensations were intact. Reflexes were equal and symmetric. The diagnosis was moderate degenerative joint disease of the lumbar spine and type one spondylolisthesis of L4 on L5. An amended VA examination report was provided the next month. The examiner added pain was at 60 degrees of flexion and at 15 degrees of extension. According to the examiner, normal range of flexion was 0 to 90 degrees. Normal extension was 0 to 35 degrees, lateral flexion, 0 to 35 degrees, and rotation, 0 to 40 degrees. that he felt that spondylolisthesis was due to an early injury to the spine when the veteran was a child (five to ten years old). He added that with that this injury may have had accelerated degenerative joint disease. A June 2004 VA examination report revealed complaints of a dull low back pain without radiation. There was no lower extremity numbness or tingling, and there was no incontinence. Range of motion was within normal limits but there was indication of impact at the extremes of motion by pain and stiffness. There was no associated weakness, fatigability or lack of endurance. VA outpatient treatment records reveal complaints of chronic lumbar pain. There were no complaints or radiating lumbar pain. Examination through 2005 showed range of motion was intact and without point tenderness. The September 26, 2005 VA spine examination report indicated that range of motion was not decreased secondary to pain, weakness, fatigability, lack of endurance, or lack of coordination. With flare-ups, however, range of motion was found to be decreased due to pain. X-rays revealed some osteophyte formation and loss of disc space height with degeneration. The pertinent diagnosis was chronic lumbar strain. A January 2006 VA spine examination included a complete review of the veteran's claims folder. In the report of that examination, it was noted, by history, that the veteran's low back flare-ups involved pain, but not weakness, fatigability, lack of endurance, or lack of coordination. The veteran reported that he could walk about a block and a half before he had to stop because of pain. It was noted that the veteran had not had back surgery, nor did he use a back brace. There was no record of periods of incapacitation. Upon examination, the lumbar spine was normal in appearance. Palpation revealed mild tenderness, especially in the right paraspinal muscles. Forward flexion was to 80 degrees, extension to 20 degrees, right and left side bending to 30 degrees, and right and left rotation to 30 degrees. Range of motion was decreased related to pain but not to weakness, fatigability, lack of endurance, or lack of coordination. Strength in the lower extremity hip flexors, quadriceps, gastrocnemius, tibialis anterior and extensor hallucis longus was normal at 5/5 bilaterally. Sensation in L3 to S1 dermatomes was normal bilaterally. X-rays of record were noted to show some osteophyte formation and decreased disc height in the lumbar spine. In the opinion of the examiner, the veteran's degenerative changes were related to a 1966 motor vehicle accident in service as opposed to a congenital origin. Radiating pain to the right groin was associated with the spondylosis. The resulting diagnosis was lumbar strain with lumbar spondylosis. In application of the law to the foregoing evidence of record, since the veteran filed the current claim for an increased rating on February 8, 1996, his service-connected lumbar strain with lumbar spondylosis has been manifested by reduced activities, x-ray evidence of degenerative changes, subjective complaints of low back pain on motion including radiating pain to the groin area, but with no more than slight limitation of motion including any loss of range of motion due to pain, without evidence of neurological findings or the need for significant periods of bedrest due to the low back disability. By virtue of the foregoing findings and resolving all reasonable doubt in favor of the veteran, the Board finds that a 20 percent disability evaluation is warranted under the former rating criteria for his low back disorder since the date of claim for a increased rating in February 1996. Essentially, the evidence shows that the pathology associated with the veteran's service-connected low back disorder has remained relatively stable during the course of the lengthy appeal period; this clearly supports assignment of an increased rating from the date of claim. The Board further finds, however, that the criteria for the assignment of a rating in excess of the currently assigned 20 percent for the service-connected lumbosacral strain with degenerative disc disease of the lumbar spine have not been met or approximated since the dated of claim. Essentially, the preponderance of the evidence of record shows that the requisite symptomatology for a disability evaluation in excess of 20 percent has not been met at any time since the initiation of the veteran's claim. Forward flexion of the thoracolumbar spine has always been shown to be greater than 60 degrees, and the combined range of motion of the thoracolumbar spine was shown to be greater than 120 degrees, even when taking into consideration loss of motion due to pain. There was no evidence of muscle spasm, but even if there had been, such symptomatology is contemplated in the 20 percent rating. There has been no showing of focal tenderness, unilateral loss of lateral spine motion in the standing position, severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, abnormal mobility on forced motion, guarding, localized tenderness, or loss of strength. There was also no evidence of muscle atrophy. Without such pathology, a disability evaluation greater than 20 percent is not warranted under the old or new criteria. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, including Diagnostic Codes 5003, 5292, 5293, 5295 (effective prior to September 26, 2003) and Diagnostic Codes 5237, 5243 (effective on September 26, 2003). Consideration, however, has been given as to whether a higher disability evaluation could be assigned under Diagnostic Codes 5293 or 5243, for intervertebral disc syndrome. Under the old provisions of Diagnostic Code 5293 (intervertebral disc syndrome), (in effect prior to September 22, 2002,) a 60 percent evaluation is warranted when the disorder is pronounced with little intermittent relief, there is sciatic neuropathy with characteristic pain and demonstrable muscle spasm, and there are neurologic findings, such as absent ankle jerk, appropriate to the site of the diseased disc; a 40 percent evaluation is warranted when the disorder is severe and there is only intermittent relief from recurring attacks; a 20 percent evaluation is warranted when the disorder is moderate with recurring attacks. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Since neurological pathology associated with the veteran's service-connected disorder has never been shown (note that pain radiating to the groin area has not been equated to neurological pathology), these older criteria provide no basis for a rating higher than the 20 percent rating assigned herein. Under provisions for rating intervertebral disc syndrome, effective September 23, 2002 (under Diagnostic Code 5293), and effective September 26, 2003, (under Diagnostic Code 5243), ratings are based on incapacitating episodes or orthopedic and neurologic impairment. According to the January 2006 review of the medical record by the examining physician, however, the low back disability is not productive of incapacitation, and neurological pathology has never been shown on objective examination. In conclusion, the Board has considered all of the applicable evidence relating to the veteran's lumbosacral spine disability, and has considered all applicable Diagnostic Codes, the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v Brown, 6 Vet. App. 321 (1993). The Board recognizes that the veteran has reported numerous subjective complaints that may appear to have much greater impact on his level of function than recognized by the schedular ratings assigned herein. The Board, however, is restricted to an assessment of the objective manifestations of a disability that can be measured against the rating schedule. It is concluded that the service-connected lumbar strain with lumbar spondylosis, is appropriately evaluated as no more than 20 percent disabling, effective from the date of claim in February 1996. The preponderance of the evidence is against the assignment of a higher rating than outlined above for any period of time since the veteran filed the current claim. Hart, 21 Vet. App. at 505. Degenerative Arthritis of the Right Knee and Degenerative Arthritis of the Left Knee The veteran's service-connected right disability and service- connected left knee disability are characterized as degenerative arthritis, and are each currently evaluated as 10 percent disabling under Diagnostic Codes 5260-5010, effective from February 8, 1996, the date that the veteran filed the current claims for increased ratings. Prior to that date, the knees were evaluated together as arthritis of the bilateral knees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma, and substantiated by X-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis which is established by x-ray studies: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by x-ray studies, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted for x-ray evidence of arthritic involvement of two or more major joints, and a 20 percent rating is warranted when there is x- ray evidence of arthritic involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The knee is considered a major joint. 38 C.F.R. § 4.45(f). Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or group of minor joints caused by degenerative arthritis that is established by x-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 417 (1995). Therefore, with x-ray evidence of degenerative changes and objective demonstration of painful, but not compensably limited motion, the limitation of motion due to pain must be taken into consideration in the determination of whether, and to what degree, the limitation is compensable. Diagnostic Codes 5260 and 5261 govern the rating criteria with regard to limitation of motion of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee warrants a zero percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a 30 percent rating when limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg warrants a zero percent rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. The regulations define normal range of motion for the leg as zero degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate I. Separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). As noted above, the veteran filed the current claim on February 8, 1996. He underwent a VA examination of his knees in March 1996. His complaints were of intermittent pain and swelling in his knees. He also reportedly had some crepitus in his patellofemoral joint. On examination there was no effusion or swelling of either knee. There was no gross deformity of either knee. There was a burn scar on the left knee, which was unrelated to service. Lachman's test was negative bilaterally. Pivot shift and Drawer tests were negative. The knees were stable. Range of motion was from 0 to 125 degrees bilaterally. No objective evidence of pain was recorded. Radiographs showed mild degenerative disease. This was not felt to cause any significant disability at present. In April 1996 the veteran was seen in the VA clinic for knee pain. No test results with respect to the knees were reported. The assessment was degenerative joint disease. In July 1996 the veteran underwent an orthopedic disability evaluation through Hilltop Medical Group. On examination his knees were normal in appearance. Range of motion was 0 to 135 degrees bilaterally. This was described as normal. Motor strength was 5/5 bilaterally. Sensation in the lower extremities was normal. The veteran's gait was normal. He used no assistive devices to ambulate. No diagnosis was made with regard to the knees. In the veteran's substantive appeal received in September 1996 he reported that at the time of the examination his knees were not swollen or showing the extent of his "incapacitating pain" because he had not been working. He stated that during the course of a normal week including standing, walking and driving for extended periods his knees would swell. He felt that his condition had worsened. He reported that his knees would feel weak and give way under strain. He stated that this happened more frequently than in the past. In October 1996 the veteran was seen in the VA clinic for, among other things, right knee pain. The extremities showed no edema and gait was normal. Neurological examination and range of motion were described as normal. The assessment was knee pain, history of degenerative joint disease. In June 1998 the veteran underwent a VA examination. He reported that his legs would periodically swell. He reported some occasional lateral or anterior pain. He also told the examiner that his knees would pop and grind but would not give out or lock. He did state that his knees would occasionally feel tired and weak, usually worse with activity, such as prolonged walking, bending, or stooping. He reported that symptoms were improved with rest or with anti-inflammatory medication. He stated that he used a brace in the past occasionally. He denied specific injury to the knees. Range of knee motion was 0 to 125 degrees bilaterally. The knees were stable bilaterally. Drawer, Lachman, and McMurray tests were negative. There was minimal effusion bilaterally. X-rays showed moderate degenerative joint disease. The impression was moderate degenerative joint disease of the knees bilaterally. An amended report was received the next month. The examiner clarified that normal range of motion of the knees was 0 to 140 degrees. VA examination of the knees in June 2004 revealed bilateral knee pain with arthritis. There was reported some limitation of motion but no knee instability. Upon VA examination of the knees in September 2005, the veteran reported worsening knee pain. Examination revealed medial and joint line tenderness of the left knee. Range of motion was from 0 degrees to 120 degrees, bilaterally. Range of motion was not limited by pain, weakness, fatigability, lack of endurance, or lack of coordination. According to the examiner, with repetitive use or flare-ups, range of motion would be affected by pain. Lower extremity strength was normal at 5/5. McMurray's test was positive with pain. There was no varus or valgus instability. X-rays of the bilateral knees showed mild bilateral tricompartmental degenerative changes. The most recent VA examination of the knees was conducted in April 2007. In the report of examination, it was noted that the veteran walked with a normal gait, and that he took Vicodin for pain. Thee was mild joint line tenderness of both knees. Flexion was to 120 degrees. Extension was complete to 0 degrees. Range of motion was limited by pain but not by weakness, fatigability, incoordination or lack of endurance with repetitive motion or flares. There was a mild varus alignment of 10 degrees. Drawer, Lachman's and McMurray's tests were negative. Motor strength for the lower extremities was normal at 5/5. Pertinent diagnosis was moderate degenerative joint disease of both knees. The Board has conducted a review of all of the medical records in the claims file, both from VA and private sources . Based upon that review, the Board finds that the most profound disability picture of the veteran's service- connected bilateral knee disabilities were produced in the several VA orthopedic examinations described above. Indeed, these examinations also produced the most profound limitations of knee motion in the record. Furthermore, they were conducted for the specific purpose of the assessment of the severity of the veteran's service-connected bilateral knee disabilities. As such, the reports of those examinations also contain the most detailed description of the veteran's right and left knee disabilities in a manner consistent with the application of the rating schedule. In summary, since the filing of his claim, the veteran's degenerative arthritis of the right knee and his degenerative arthritis of the left knee have been shown to be manifested by subjective complaints of pain causing a reduction in physical activity, mild degenerative changes on x-ray study; objective evidence of limitation of flexion to 120 degrees secondary to pain; without objective evidence of limitation of extension, including functional impairment secondary to subjective pain; and without objective evidence of instability or lateral subluxation. Although the measured limitation of flexion to 120 degrees would represent limitation of motion that is less than compensable under Diagnostic Codes 5260, in consideration of the painful motion, a 10 percent evaluation can and has been assigned to the right and left knee disabilities under Diagnostic Codes 5003 and 5010. VAOPGCPREC 23-97; DeLuca, 6 Vet. App. at 32; 38 C.F.R. §§ 4.40, 4.45, 4.59. It does not, however, approximate the requisite criteria for an disability evaluation in excess of the currently assigned 10 percent rating. Given the fact that there is no limitation of motion of extension of the right knee or the left knee, including that attributed to pain, there is no basis to assign a separate rating to either knee disability based upon such limitation under Diagnostic Code 5261. Consideration has been given to other potentially applicable diagnostic codes. Under Diagnostic Code 5257, recurrent subluxation or lateral instability warrants a 10 percent disability evaluation when slight, a 20 percent disability rating requires moderate impairment of the knee due to recurrent subluxation or lateral instability, while a 30 percent disability rating requires severe impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Given that neither subluxation nor lateral instability has been objectively demonstrated on any examination for either knee, a separate evaluation under Diagnostic Code 5257 is not warranted for either knee. Finally, as the veteran does not have ankylosis of either knee, a rating under Diagnostic Code 5256 would not be appropriate. Neither does he have impairment of the tibia and fibula such that a rating under Diagnostic Code 5262 would be appropriate. The service-connected degenerative arthritis of the right knee and service-connected degenerative arthritis of the left knee have each met or approximated the criteria for a disability evaluation of 10 percent, but no more, based upon limitation of flexion. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5261, 5262. The preponderance of the evidence is against the assignment of a higher rating than outlined above for the veteran's right knee disorder or his left knee disorder for any period of time since the veteran filed the current claim; there is no doubt to be resolved; and a rating higher than 10 percent is not warranted for either knee. Hart , 21 Vet. App. at 505. Extraschedular Ratings The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). There has been no showing by the veteran that any of his service-connected disabilities considered herein have resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated such factors so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met for any of the disabilities at issue. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability evaluation in excess of 20 percent from September 26, 2005, for lumbar strain with lumbar spondylosis, is denied. Entitlement to a disability evaluation of 20 percent for the period from February 8, 1996 to September 25, 2005, for lumbar strain with lumbar spondylosis (formerly rated as lumbosacral strain), is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a disability evaluation in excess of 10 percent for degenerative arthritis of the right knee is denied. Entitlement to a disability evaluation in excess of 10 percent for degenerative arthritis of the left knee is denied. _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs