Citation Nr: 0823887 Decision Date: 07/17/08 Archive Date: 07/30/08 DOCKET NO. 97-05 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to a compensable initial rating for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The veteran served on active duty from September 1983 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the veteran's claim seeking entitlement to service connection for disorders of the right wrist and left knee and granted service connection for a low back disability and for hearing loss of the left ear at noncompensable initial ratings. In June 2002, the veteran testified before a Veterans Law Judge who is no longer a member of the Board. In September 2005, the veteran was offered a new hearing before an active Veterans Law Judge but to date, no such hearing has been requested by the veteran. Therefore, a remand on this basis is not required at this time. The Board remanded the case in August 2003 for further development. In November 2005, the Board denied service connection for a right wrist disorder and a compensable disability rating for hearing loss of the left ear and remanded the issues of entitlement to service connection for a left knee disorder and a compensable disability rating for a back disability for additional development. These issues are again before the Board for further appellate review. FINDINGS OF FACT 1. There is no competent medical evidence showing the veteran has a left knee disorder that is related to service. 2. From November 13, 1995 to June 23, 2002, the veteran's service-connected spine disability was not characterized by slight limitation of motion of the lumbar spine or lumbosacral strain with characteristic pain on motion. 3. For the period June 24, 2002 to April 2, 2006, the veteran's service-connected spine disability was characterized by slight limitation of motion of the lumbar spine. 4. Beginning April 3, 2006, the veteran's service-connected spine disability was characterized by moderate limitation of motion of the lumbar spine. 5. The veteran's service-connected lumbosacral spine disorder does not presently cause neurological manifestations. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). 2. From November 13, 1995 to June 23, 2002, the criteria for a compensable disability rating for a low back disability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, Diagnostic Codes 5292, 5295 (2003). 3. The criteria for a disability rating of 10 percent, but no higher, for a low back disability have been met for the period June 24, 2002 to April 2, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5292 (2003). 4. As of April 3, 2006, the criteria for a disability rating of 20 percent, but no higher, for a low back disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5292 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that for claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was recently amended to eliminate the 4th element requirement that VA request that a claimant submit any evidence in his or her possession that might pertain to the claim. See 73 Fed. Reg. 23,353 (Apr. 30, 2008). Consequently, here, the presence of notice of this element is of no consequence since it is no longer required by law. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In this case, the duty to notify was satisfied by way of letters sent to the appellant in February 2006, April 2006, September 2006 and October 2007 that fully addressed all four notice elements. The letters informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant 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 of a February 2008 supplemental statement of the case issued after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA medical records and examination reports, non-VA medical records and lay statements have been associated with the file. The appellant was afforded VA medical examinations in January 1996, April 2003 and April 2006. The veteran was provided an opportunity to set forth his contentions during the hearing before a Veterans Law Judge. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to service connection - left knee disorder Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) (2007) when the evidence, regardless of its date, shows that an appellant had a chronic condition in service or during the applicable presumptive period. Service connection also may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has also held that "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992). Service treatment records reflect that the veteran twisted his left knee in April 1991 in a softball game. The pain was generally along the inner knee. The assessment was medial collateral ligament (MCL) strain. A June 1991 service treatment record shows that the veteran was still having pain in his knee but that there was no swelling or tenderness and the drawers and patella tests were negative. Deep tendon reflexes were 2+ and symmetrical and there were no neurological deficits. He had full range of motion. The assessment was resolving MCL strain. Service treatment records reflect ongoing complaints of left knee pain with the assessment of chronic retropatellar pain. June 1995 X-rays showed a left cortical lesion of the distal left femur. The veteran's September 1995 Report of Medical History shows that the veteran reported left knee pain beginning in 1991 or 1992. His separation Report of Medical Examination shows a normal left knee examination, and no disganosis of a knee disorder. A November 1994 Report of Medical Board of the Naval Hospital in Jacksonville, Florida shows that the veteran had complained of bilateral retropatellar pain for the previous several years since a twisting injury to his left knee while playing softball. He denied buckling of his knees. Upon examination, there was no effusion in his left knee. Range of motion of his left knee was 0 to 130 degrees. The Q angle was 8 degrees. The patellar apprehension, inhibition and compression tests were negative. There was no joint line tenderness elicited in either knee. The McMurray's, anterior drawer, Lachman, pivot shift, posterior drawer and sag, and varus and valgus stress tests were negative. An x-ray of the left knee showed a cortical lesion of the distal left femur, consistent with enchondroma or fibrous cortical defect. A January 1996 VA general medical examination report shows that the veteran had no intra-articular effusion of his knees and they were ligamentously stable. He had negative Lachman's and posterior sag and full range of motion. An August 2002 statement from a private examiner reflects his opinion that the veteran's current knee problems had the onset in service. He did not provide a diagnosis of a left knee disorder. The April 2003 VA joints examination report shows that the veteran had normal range of motion of his left knee from 0 to 130 degrees, with good stability in both planes and no effusion. X-rays showed well-maintained cartilage spaces and no signs of abnormality. The examiner noted that, while the veteran had subjective complaints with his left knee, there were no objective findings to be associated with it. An April 2003 bone scan of the left knee showed some uptake, which correlated with the bone island found in the veteran. The joint itself did not show any uptake; hence there was no evidence of active inflammation of the joint. A May 2005 letter from a private physician showed that the veteran was under his care for a neuromusculoskeletal condition that involved knee pain, and that this was related to his knee trauma and the fact that he carried a heavy instrument during his time in the service. The examiner did not provide a diagnosis of a left knee condition. The April 2006 VA examination report showed that the veteran had intermittent soreness and discomfort in his left knee with increased walking and extensive flexing. He reported increased discomfort 10 to 15 times per month, lasting five minutes to three to four hours. He rests it when this happens, which is basically the only relief measure that he used. He used to assistive devices, there were no outside injuries and he had no work loss as a result. Upon examination, he was negative for edema and tenderness to palpation. There was some laxity of the medial ligaments with valgus testing, extension was at 0 degrees and flexion was at o to 120 degrees without pain. He did have pain to 140 degrees without discomfort. He was negative for crepitus, Lachman's and McMurray's. The left knee was stable. No repetitions of movement were done secondary to the veteran complaining that it increased his back pain. A left knee x-ray showed calcified enchondroma or bone infarct of the distal left femur and ossific density posterior to the proximal left fibula which would be due to artifact or old trauma. The diagnosis was bilateral retropatellar pain syndrome as of 1994 and left cortical lesion of the distal left femur as of magnetic resonance imaging (MRI) in 1995 and x-ray in 1996. The examiner opined that the veteran had no current disability of the left knee. Based on the evidence of record, there is no competent medical evidence to show that the veteran has a current left knee disorder. While the veteran was treated for left knee pain in service, he was never diagnosed with a left knee disorder. His separation examination did not reflect a knee disorder. The August 2002 and May 2005 private examiners appeared to link the veteran's left knee pain to his time in service; however, they did not provide a diagnosis of a left knee disorder. Finally, the April 2006 VA examiner noted that the veteran had no current disorder of the left knee. Pain alone, without a diagnosed or identifiable underlying condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Without medical evidence that proves the existence of a current disability, the nexus requirement has not been met. Grottveit, supra. In the absence of proof of a present disability there can be no valid claim. Brammer, supra. The veteran has claimed that his left knee disorder is related to service. In terms of the veteran's own statements, he, as a layperson, with no apparent medical expertise or training, is not competent to comment on the presence or etiology of a medical disorder. Rather, medical evidence is needed to that effect. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased rating - low back disability Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran's symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). Because this appeal involves an initial rating for the veteran's low back disability, for which service connection was granted and an initial disability rating was assigned, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Furthermore, consideration should also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Board observes that the criteria relating to spinal disorders were amended several times over the appeals period and the most favorable one must be applied. See 67 Fed. Reg. 48,785 (July 26, 2002), 67 Fed. Reg. 54,345-49 (Aug. 22, 2002); 68 Fed. Reg. 51,454-58 (Aug. 27, 2003; 69 Fed. Reg. 32,449 (June 10, 2004) (codified at 38 C.F.R. § 4.71a (2007)); see also VAOPGCPREC 3-2000. The veteran's low back disability is currently service- connected under Diagnostic Code 5295, for lumbosacral strain, at a noncompensable disability rating. Under Diagnostic Code 5295, lumbosacral strain with slight subjective symptoms only is rated at a noncompensable disability rating, lumbosacral strain with characteristic pain on motion is rated at a 10 percent disability rating and lumbosacral strain with muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in the standing position is rated at a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). A November 1994 Report of Medical Board of the Naval Hospital in Jacksonville, Florida shows that the veteran had complained of chronic low back pain, of insidious onset over the previous several years. Treatment had consisted of extensive physical therapy, nonsteroidal anti-inflammatory medication and activity modification without relief of symptoms. Upon examination, the veteran could flex and touch his fingers to his toes. Extension was to 50 degrees and on lateral bending he could touch his fingers to bilateral lateral knee joint lines. Muscle strength was 5/5 in all lower extremity muscle groups. Deep tendon reflexes were 2+ and bilaterally symmetric. There were no Babinski's signs or clonus elicited. The straight leg raise, tripod test, femoral nerve stretch test, and FABERE tests were negative bilaterally. The distal neurovascular examination was normal and sensation was intact to light touch throughout. X-rays of the spine were normal. Private medical records from January 1996 reflect that the veteran reported low back pain. Upon examination, his posture was straight and tip-toe/heel standing was good. Forward bending was good to 70 degrees with minor discomfort. Bilateral bending was within normal limits, and deep tendon reflexes of both knees and ankles were 2+ symmetrical. There was no evidence of toe extensor weakness. Straight leg raising was negative to 90 degrees. Lumbosacral x-rays showed no bony abnormalities. Later in January 1996, he reported that his back pain was still present and that he had numbness in the right lower leg and both arms. He did not clearly have any median nerve distribution numbness symptomatically. Back examination was essentially the same, with straight leg raising within normal limits and no reflex changes. February 1996 private medical records show that EMG/NCV tests were negative. A contemporaneous MRI showed no herniated disc but minor disc degeneration. A January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions. He had no scoliosis and was nontender. He did have 4/5 Waddell signs. His reflexes were normal as was his motor and sensor examination. The assessment was mechanical back pain with no evidence of intra-articular pathology or any other neurologic problems. The examiner concluded that, given the veteran's multiple somatic complaints, this probably just represents somatization given his overall affect and the diffuse nature of his complaints. The examiner could not find any hard clinical evidence that he had any gross organic pathology. A June 2002 private medical record shows that the veteran complained of intermittent back pain which had continued since service. Upon examination, he had palpable paravertebral muscle tenderness. He also had restricted range of motion, flexion and extension, secondary to pain. He had positive straight leg raise for back pain. Motor strength was 5+/5, right equal to the left. Deep tendon reflexes were 2+ and symmetric, sensation was intact to pin prick and light touch. Toes were downgoing and there was no clonus. A July 2002 private MRI reflects the conclusion that the central bony canal appeared to be at the lower limits of normal from L2 to L5 on a congential basis. There were minimal disc protrusions at L2/3 and L4/5. The impression was longstanding degenerative disc disease of nontraumatic origin. An April 2003 VA joints examination report showed that the veteran had no scoliosis and normal lumbar lordosis, with no paravertebral spasm in the sense that marking time resulted in tightening and relaxation of the paravertebral muscles, indicating that they were able to relax. Forward bending was 70 degrees, backward extension was 30 degrees, right and left bending was 20 degrees and right and left rotation was 25 degrees. The examiner noted that the veteran had more sagittal movements, but in the coronal plane there was some restriction as is in the rotational plane, and that this is more than one would expect for a person of his age. X-rays of the lumbar spine showed minimal degenerative changes. In fact, there were just small osteophytes in the region of the posterior joints. There were well-maintained disc spaces and no osteophytes on the bodies of the vertebrae. The veteran had small osteophytes in the upper lumbar spine. The examiner reviewed the veteran's July 2002 MRI report and concluded that for all intents and purposes the MRI was normal. The examiner concluded that the veteran had considerable subjective complaints, but no significant objective disease could be identified. An April 2003 bone scan of the low back showed uptake in the lumbar spine typical of degenerative joint disease; however, there was no localization and such findings would be expected in a person of his age. Hence, the bone scan did not confirm any active inflammation. In a May 2005 statement, the veteran's private physician noted that his primary symptoms were intermittent lower back pain with frequent right leg radiculopathy, and that this condition was permanent and that the probability of future resolution was poor. An April 2006 VA examination report shows that the veteran reported having one to two episodes of spasms in his back per month, which are relieved by rest of five minutes to one or two hours. The aggravating factors are full extension. The examiner noted that, in 2001, the veteran was in an automobile accident, with resulting chest and right elbow problems. In 2002, the veteran saw a chiropractor for pinched nerves in the neck post the motor vehicle accident. He was seen for a year with significant improvement in all of his back. In 2003, the veteran was rear-ended at a stoplight. The examiner noted that he had an MRI prior to the accident which showed one bulging disc, and that after the accident the veteran had four bulging discs. The veteran had numbness in the low midback to the left leg, and right foot numbness that had become constant. The veteran had no incapacitating episodes resulting in loss of work time. Upon examination, the veteran's back was without skin abnormalities, without scoliosis. The direct palpation of the cervical, thoracic and lumbar spines showed no tenderness on the direct spine, but there was tenderness on palpation of the lateral musculature of the low thoracic and lumbosacral spine. No spasms are noted. He did have some mild edema in the lumbosacral area. Forward flexion was 0 to 50 degrees, stopped secondary to sharp pain, extension was 0 to 10 degrees with cervical spine pain, left lateral flexion was 0 to 20 degrees, right lateral flexion was 0 to 15 degrees, and left and right lateral rotation was 0 to 15 degrees with increased pain in the upper thoracic spine. The reflexes were intact. Repetitive exercises were not attempted secondary to the veteran's continued complaints of back discomfort. The vibration sensation was slightly decreased in the left knee but was otherwise intact. The monofilament test for sensation was negative throughout both lower extremities. Thoracic spine films showed mild degenerative changes with spurring in the mid to lower thoracic spine. Lumbar spine films showed degenerative changes of the lumbar spine with spurring, and a minimal old compression fracture of L3. The diagnosis was lumbar 4/5 and 2/3 minimal disc bulging as of 2002, multiple levels of bulging disc in the low thoracic, throughout the lumbar and sacral spine with varying degrees of central stenosis as of 2006 and degenerative arthritis with spurring in the thoracic and lumbar spine as of 2006. The examiner concluded that there had been some progression of the veteran's lumbosacral strain and degenerative arthritis, but without any neurological disability. Based on the evidence of record, the veteran's low back disability would not warrant a higher disability rating under Diagnostic Code 5295 at any time over the appeals period. At no point does the evidence show that the veteran's low back disability was characterized by characteristic pain on motion caused by his lumbosacral strain. 38 C.F.R. § 4.71a, Diagnostic Code 5295. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Board has considered rating the veteran's low back disability under other pertinent diagnostic codes in order to afford him the most favorable rating available to him. As such, the Board finds that the veteran's low back disability warrants a compensable disability rating under Diagnostic Code 5292, for limitation of motion of the lumbar spine. Under Diagnostic Code 5292, slight limitation of motion of the lumbar spine warrants a 10 percent disability rating, moderate limitation of motion of the lumbar spine warrants a 20 percent disability rating and severe limitation of motion of the lumbar spine warrants a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5292. The Board finds that, based upon the evidence of record, the veteran's low back disability warrants a 10 percent disability rating as of June 24, 2002 and a 20 percent disability rating as of April 3, 2006. The medical evidence prior to June 24, 2002 reflects that the veteran had essentially full range of motion of his spine. The November 1994 Medical Board Report shows that the veteran could flex and touch his fingers to his toes, that extension was to 50 degrees and on lateral bending he could touch his fingers to bilateral lateral knee joint lines. While a January 1996 private medical record reflected that the veteran's forward bending was good to 70 degrees with minor discomfort and his bilateral bending was within normal limits, a January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions. However, the June 24, 2002 private medical record shows that the veteran had palpable paravertebral muscle tenderness and restricted range of motion, flexion and extension, secondary to pain. The April 2003 VA examination report shows that the veteran had forward bending of 70 degrees, backward extension of 30 degrees, right and left bending of 20 degrees and right and left rotation of 25 degrees. The Board therefore finds that, as of June 24, 2002, the symptomatology of the veteran's low back disability warrants a 10 percent disability rating for slight limitation of motion of the lumbar spine under Diagnostic Code 5292. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). In addition, the April 3, 2006 VA medical examination report shows that the veteran's forward flexion was 0 to 50 degrees, stopped secondary to sharp pain, extension was 0 to 10 degrees with cervical spine pain, left lateral flexion was 0 to 20 degrees, right lateral flexion was 0 to 15 degrees, and left and right lateral rotation was 0 to 15 degrees with increased pain in the upper thoracic spine. Repetitive exercises were not attempted secondary to the veteran's continued complaints of back discomfort. As such, the Board finds that the symptomatology of the veteran's back disability as of April 3, 2006 warrants a 20 percent disability rating under Diagnostic Code 5292 for moderate limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). As the veteran's low back disability is not manifested by a fracture of the vertebra or ankylosis, higher disability ratings are not warranted under Diagnostic Codes 5285 or 5289. 38 C.F.R. § 7.71a, Diagnostic Codes 5285, 5289 (2003). In the amendment that became effective September 26, 2003, the Diagnostic Codes which pertain to disabilities of the spine became the current Diagnostic Codes 5235 - 5243, which are to be rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine (General Formula), unless Diagnostic Code 5243, pertaining to intervertebral disc syndrome (IVDS), is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Incapacitating Episodes). Under the General Formula, for spine disabilities 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, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). As noted above, the Board has determined that the veteran's back disability warrants a 10 percent disability rating as of June 24, 2002 and a 20 percent disability rating as of April 3, 2006. The current regulations can be considered to rate the veteran's back condition beginning the date they were effective, September 26, 2003, but not before. Therefore, under the current regulations, the Board will now consider a disability rating in excess of 10 percent for the veteran's low back disability from September 26, 2003 through April 2, 2006 and a disability rating in excess of 20 percent for the veteran's low back disability from April 3, 2006. The veteran's low back disability would not warrant a disability rating in excess of 10 percent for the period from September 26, 2003 through April 2, 2006. To warrant a 20 percent rating, the veteran's back disability would need to be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or 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. However, for the relevant time period, there is no evidence in the record showing the veteran's back condition met the criteria for a disability rating higher than 10 percent. As such, a higher rating for the veteran's low back disability under the current criteria is not warranted for this time period. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). In addition, the veteran's low back disability does not warrant a disability rating higher than 20 percent as of April 3, 2006. To warrant the next highest rating, 40 percent, for a disability involving the lumbar spine under the current regulations, the veteran's spine condition would need to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less or, favorable ankylosis of the entire thoracolumbar spine. However, at the April 2006 VA examination, the veteran's forward flexion was to 50 degrees and the examiner did not note ankylosis. As such, the veteran's a higher rating for the veteran's low back disability under the current criteria is not warranted as of April 3, 2006. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). Since the veteran has been diagnosed with degenerative disc disease, the Board will consider rating the veteran's low back disability under the Diagnostic Codes pertaining to IVDS. Prior to September 23, 2002, Diagnostic Code 5293 provided that post operative IVDS that was cured was to be rated at a noncompensable disability rating, mild IVDS was to be rated at a 10 percent disability rating, moderate IVDS with recurring attacks was to be rated at a 20 percent disability rating, and severe IVDS with recurring attacks with intermittent relief was to be rated at a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). There is no evidence that the veteran's back disability was manifested by mild IVDS at any time before June 24, 2002 in order to warrant a compensable disability rating during that time. The November 1994 Medical Board Report shows that the veteran's muscle strength was 5/5 in all lower extremity muscle groups, his deep tendon reflexes were 2+ and bilaterally symmetric, there were no Babinski's signs or clonus elicited and the straight leg raise, tripod test, femoral nerve stretch test, and FABERE tests were negative bilaterally. X-rays of the spine were normal. January 1996 private medical records reflect that lumbosacral x-rays showed no bony abnormalities, nerve conduction velocity and electromyography (NCV/EMG) tests were negative and a contemporaneous MRI showed no herniated disc but minor disc degeneration. The January 1996 VA general medical examination report showed the assessment was mechanical back pain with no evidence of intra-articular pathology or any other neurologic problems. The examiner concluded that, given the veteran's multiple somatic complaints, this probably just represents somatization given his overall affect and the diffuse nature of his complaints. The examiner could not find any hard clinical evidence that he had any gross organic pathology. As such, a compensable disability rating under Diagnostic Code 5293 in effect prior to September 23, 2002 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). From September 23, 2002 through September 25, 2003, Diagnostic Code 5293 provided that IVDS (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. Under the regulation, for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent disability rating is warranted, for IVDS incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent disability rating is warranted, for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent disability rating is warranted and for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent disability rating is warranted. For purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). There is no evidence in the record that, at any time over the appeals period, the veteran has had incapacitating episodes that approximate the definition in the regulations. As such, a higher rating under Diagnostic Code 5293 on the basis of incapacitating episodes is not warranted 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). In the amendments that went into effect on September 26, 2003, Diagnostic Code 5293 became Diagnostic Code 5243, which provides that IVDS is to be rated either under the General Formula or under the Formula for Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Higher ratings for the veteran's back disability are not available under the General Formula, as discussed above. In addition, as mentioned above, there is no evidence that the veteran's back disability has been characterized by incapacitating episodes at any time over the appeals period. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). In reaching this decision the Board considered whether the veteran's service-connected low back disability presents an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Significantly, no evidence has been presented showing factors not already contemplated by the rating criteria, such as frequent periods of hospitalization, due to the veteran's low back disability, as to render impractical the application of the regular schedular standards. In light of the foregoing, the Board finds that the criteria for submission for assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) are not met. The Board is therefore not required to remand this matter for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2007). ORDER Service connection for a left knee disorder is denied. A compensable disability rating for a low back disability is denied for the period from November 13, 1995 to June 23, 2002. A disability rating of 10 percent for a low back disability is granted for the period from June 24, 2002 to April 2, 2006, subject to the law and regulations governing the payment of VA monetary benefits. A disability rating of 20 percent for a low back disability is granted as of April 3, 2006, subject to the law and regulations governing the payment of VA monetary benefits. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs