Citation Nr: 1003232 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 06-29 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar strain with radiculopathy. 2. Entitlement to a rating in excess of 10 percent for right knee strain with internal derangement. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Jaeger, Counsel INTRODUCTION The Veteran had active military service from November 1975 to November 1979 with additional unverified service from November 1972 to November 1975 and service in the Naval Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO in October 2009; a transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. Lumbar strain with radiculopathy is manifested by limited range of motion with radiating pain, burning, tingling, and numbness, weakness, stiffness, fatigue, lack of endurance, heightened paravertebral muscle tension with spasm, moderate thoracolumbar scoliotic curvature of the spine, tenderness, and flare-ups, without objective evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar or entire spine; any associated neurological abnormalities; or incapacitating episodes. 2. Right knee strain with internal derangement is manifested by flexion limited to 125 degrees and extension limited to zero degrees with subjective complaints of giving way, locking, tenderness, discomfort, pain, crepitus, weakness, stiffness, swelling, fatigue, and lack of endurance, without objective evidence of arthritis, recurrent subluxation or lateral instability, ankylosis, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar strain with radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2009). 2. The criteria for a rating in excess of 10 percent for right knee strain with internal derangement have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA 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 the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. In this regard, an October 2005 letter, sent prior to the initial unfavorable AOJ decision issued in November 2005, and November 2007, February 2009, March 2009, and June 2009 letters advised the Veteran of the evidence and information necessary to substantiate his increased rating claims as well as his and VA's respective responsibilities in obtaining such evidence and information. The November 2007, March 2009, and June 2009 letters also informed him of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra. While the November 2007, February 2009, March 2009, and June 2009 letters were issued after the initial November 2005 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the November 2007, February 2009, March 2009, and June 2009 letters were issued, the Veteran's claims were readjudicated in the November 2007, March 2009, and June 2009 supplemental statements of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. Additionally, he was provided with VA examinations in October 2005 and July 2007 in order to adjudicate his pending claims. In this regard, the Board observes that, relevant to the Veteran's back disability, the July 2007 VA examiner noted that the Veteran was unable to provide a clear history with respect to his radiculopathy, which the Veteran's representative noted at the October 2009 hearing. However, the Board finds that the July 2007 VA examination is adequate for rating purposes as all necessary physical findings are recorded and the remainder of the evidence, to include the Veteran's testimony at the October 2009 hearing and VA treatment records, details his neurological complaints with respect to his radiculopathy. Specifically, he testified that he has pain radiating to his calf. Moreover, an April 2008 VA treatment record includes a full neurological examination with respect to the Veteran's back disability. Therefore, the Board finds that the record is adequate for rating purposes and, as such, a remand is not necessary in order to afford the Veteran any additional examinations. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Lumbar Strain with Radiculopathy The Veteran's back disability is currently evaluated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. At his October 2009 Board hearing and in documents of record, the Veteran contends that he is entitled to an increased rating because such disability is getting worse and he experiences constant, radiating pain. He also alleges that an increased rating is warranted as he has sought treatment from a chiropractor and must receive periodic lumbar epidural steroid injections in order to help control the pain. Therefore, the Veteran argues that a rating in excess of 20 percent is warranted for his back disability. The Veteran's back disability has been evaluated under Diagnostic Code 5243 relevant to intervertebral disc syndrome. The relevant criteria provides that intervertebral disc syndrome can be evaluated (preoperatively or postoperatively) either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, 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, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 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 (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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): 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. Intervertebral disc syndrome can also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Such provides that a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the last 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula For Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Board finds that the Veteran's back disability is manifested by limited range of motion with radiating pain, burning, tingling, and numbness, weakness, stiffness, fatigue, lack of endurance, heightened paravertebral muscle tension with spasm, moderate thoracolumbar scoliotic curvature of the spine, tenderness, and flare-ups, without objective evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar or entire spine; any associated neurological abnormalities; or incapacitating episodes. Under the General Rating Formula, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent. In this regard, the evidence of record fails to demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar or entire spine. Specifically, the evidence shows that the Veteran has range of motion in his spine, albeit limited and with pain, weakness, stiffness, fatigue, lack of endurance, heightened paravertebral muscle tension with spasm, moderate thoracolumbar scoliotic curvature of the spine, tenderness, and flare-ups. In this regard, a June 2004 VA examination revealed that the Veteran had forward flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. It was noted that the Veteran had heightened paravertebral muscle tension with spasm and mild tenderness in the L5-S1 paravertebral region. The examiner also observed that the Veteran had a moderate thoracolumbar scoliotic curvature of the spine when standing upright. At the October 2005 VA examination, the Veteran had mild paravertebral spasm bilaterally. He had forward flexion to 75 degrees, extension to 10 degrees with pain, right lateral flexion to 30 degrees with pain, left lateral flexion to 35 degrees, and bilateral lateral rotation to 25 degrees with some mild discomfort. The examiner estimated that, during periods of exacerbation and with repetition, he estimated that the Veteran would lose 10 degrees of motion. He also indicated that pain had a major functional impact. In July 2007, VA examination revealed forward flexion to 90 degrees, extension to 5 degrees, right rotation to 5 degrees, left rotation to 15 degrees, and bilateral lateral flexion to 15 degrees. It was noted that there was no tenderness to palpation over the lumbar spine and lumbar lordosis was preserved, but the Veteran reported flare-ups. The Veteran also complained of weakness, stiffness, fatigue, and lack of endurance. The examiner noted that following three repetitions, there was no additional loss of any motion. More recently, April 2008 and December 2008 VA treatment records revealed full range of motion without pain, with the exception of extension where the Veteran experienced minimal to moderate pain on motion. Based on the preceding evidence the Board finds that the Veteran experiences limitation of motion with pain, weakness, stiffness, fatigue, lack of endurance, heightened paravertebral muscle tension with spasm, moderate thoracolumbar scoliotic curvature of the spine, tenderness, and flare-ups as a result of his back disability. However, as he does not have forward flexion of the thoracolumbar spine limited to 30 degrees or less, even in contemplation of limitation of range of motion due to pain, weakness, stiffness, fatigue, and lack of endurance, or favorable or unfavorable ankylosis of the thoracolumbar or entire spine, he is not entitled to a rating in excess of 20 percent. See DeLuca, supra. Additionally, the Board notes that, under Note (1) of the General Rating Formula, any associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code. Therefore, the Board has considered whether such results in any associated objective neurological abnormalities that warrant separate ratings. In this regard, the Board notes that the Veteran complains of radiating pain, burning, tingling, and numbness and, on occasion, had positive straight leg raising tests and reduced deep tendon reflexes; however, such symptomatology is contemplated by the General Rating Formula and do not warrant separate ratings. Specifically, at the June 2004 VA examination, the Veteran complained of pain shooting down the anterolateral left and right thighs periodically. Upon examination, deep tendon reflexes were +2 knee jerks and +0 ankle jerks bilaterally. Straight leg raising provoked sensation of pain in the low back without radicular complaints per se in either leg. Sensation was intact to light touch. At the October 2005 VA examination, the Veteran reported shooting pain down both legs on some days. Upon physical examination, straight leg raising was negative bilaterally and sensation was intact to light touch. Deep tendon reflexes were +1 in the knee and jerks bilaterally. Dorsiflexion and plantar flexion were intact at the ankles. Also, the examiner noted that the extensor hallucis pollicis and extension hallucis longus were intact bilaterally with normal strength. At the July 2007 VA examination, physical examination revealed that the L4 through S1 sensorimotor examination was intact. Deep tendon reflexes were +1 in the knee and ankle jerks bilaterally. Seated straight leg raises were negative bilaterally. An April 2008 VA treatment record reflects that the Veteran complained of sharp and dull pain, burning, tingling, and numbness radiating from the back down the right buttock and left leg. He denied bowel and bladder incontinence. On physical examination, the Veteran had 5/5 motor strength in the lower extremities bilaterally and his sensory examination was grossly intact. The Veteran's deep tendon reflects were 2+ in the knee jerks and ankle jerks bilaterally. Straight leg raising test was positive at 70 degrees on the left. It was noted that, relevant to the right side, the Veteran's hamstring limited his motion to 80 degrees. Chronic lower back pain with left radiculopathy was diagnosed. In December 2008, it was noted that the Veteran had no new motor or sensory changes and no loss of control of his bowel or bladder. Upon physical examination, the Veteran had 5/5 motor strength in the lower extremities bilaterally. Patrick's test and straight leg raising were negative bilaterally. The assessment was chronic axial low back pain with intermittent left thigh radiation. Therefore, while the Veteran has complained of neurological symptoms in his bilateral lower extremities and, on occasion, had positive straight leg raising tests and reduced deep tendon reflexes, the Board finds that the objective medical evidence of record fails to demonstrate that the Veteran's back disability results in any associated objective neurological abnormalities that warrant separate ratings. Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his back disability under the General Rating Formula for Diseases and Injuries of the Spine. The Board has also considered whether the Veteran is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this regard, the Board observes that, at the October 2005 VA examination, the Veteran reported that when he experiences flare-ups six to eight times a month, he lies down, but had not been incapacitated for a 24-hour period and had not lost time from work per se. Additionally, at the July 2007 VA examination, the Veteran denied any incapacitating episodes. As such, when considering the Veteran's back disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, he is not entitled to a rating in excess of 20 percent. Right Knee Strain with Internal Derangement The Veteran's right knee strain with internal derangement is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. At his October 2009 Board hearing and in documents of record, the Veteran contends that he is entitled to an increased rating because such disability is getting worse and he experiences constant pain. He also alleges that such results in instability requiring the use of a brace. Therefore, the Veteran argues that a rating in excess of 10 percent is warranted for his right knee disability. The Veteran's right knee disability has been evaluated under Diagnostic Code 5260 relevant to limitation of flexion of the leg. The Board observes that normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if a Veteran does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). The Board finds that the Veteran's right knee strain with internal derangement is manifested by flexion limited to 125 degrees and extension limited to zero degrees with subjective complaints of giving way, locking, tenderness, discomfort, pain, crepitus, weakness, stiffness, swelling, fatigue, and lack of endurance, without objective evidence of arthritis, recurrent subluxation or lateral instability, ankylosis, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Initially, the Board notes that the Veteran does not have arthritis of the right knee. In this regard, X-rays taken in conjunction with the July 2007 VA examination were negative. Under Diagnostic Code 5260, a zero percent evaluation is assigned where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. However, upon VA examination in June 2004, the Veteran had flexion to 125 degrees with mild tenderness and crepitus. He had mild atrophy of the right leg. Additionally, at VA examinations conducted in October 2005 and July 2007, the Veteran had full flexion to 140 degrees with mild discomfort, pain, and crepitus. In October 2005, the Veteran reported weakness, stiffness, swelling, fatigue, and lack of endurance. Also, the October 2005 examiner estimated that, during periods of exacerbation and with repetition, he estimated that the Veteran would lose 10 degrees of motion. He also indicated that pain had a major functional impact. In July 2007, the examiner noted that following three repetitions, there was no additional loss of any motion. Therefore, even in consideration of tenderness, discomfort, pain, weakness, stiffness, swelling, fatigue, lack of endurance, crepitus, and repetition, the Veteran's right knee flexion is limited to no more than 125 degrees. See DeLuca, supra. As such, the Veteran does not meet the criteria for a higher evaluation under Diagnostic Code 5260. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees. The evidence of record reveals that, at his June 2004, October 2005, and July 2007 VA examinations, the Veteran had extension to zero degrees with mild tenderness, discomfort, pain, and crepitus. In October 2005, the Veteran reported weakness, stiffness, swelling, fatigue, and lack of endurance. Also, the October 2005 examiner estimated that, during periods of exacerbation and with repetition, he estimated that the Veteran would lose 10 degrees of motion. He also indicated that pain had a major functional impact. However, in July 2007, the examiner noted that following three repetitions, there was no additional loss of any motion. The Board finds that, while the October 2005 VA examiner estimated that the Veteran would lose an additional 10 degrees of motion upon exacerbation and repetition, such was an estimation only. Additionally, the examiner failed to indicate whether the loss of 10 degrees pertained to flexion or extension or in equal parts to both. In contrast, the July 2007 examiner actually tested the Veteran's range of motion following repetition. Moreover, the findings at the July 2007 examination are more consistent with the remainder of the evidence of record. As such, the Board places greater probative weight on the July 2007 examination findings as relevant to the Veteran's limitation of extension following repetition. Therefore, even in consideration of tenderness, discomfort, pain, weakness, stiffness, swelling, fatigue, lack of endurance, crepitus, and repetition, the Veteran has full right knee extension to zero degrees. See DeLuca, supra. As such, the Veteran does not meet the criteria for a higher evaluation under Diagnostic Code 5261. Additionally, he is not entitled to a separate compensable rating under Diagnostic Code 5261. See VAOPGCPREC 9-04. The Board has further considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5257. See VAOPGCPREC 23-97; VAOPGCPREC 9-98. However, while the evidence reflects subjective complaints of locking, giving way, and the use of a knee brace, the objective evidence shows that the Veteran's right knee is stable. Specifically, at the June 2004 VA examination, the Veteran reported a sensation of locking and giving way of the right knee. However, upon physical examination, there was no laxity to the knee. At the October 2005 VA examination, the Veteran again indicated that his right knee occasionally gives way and locks, but, upon physical examination, there was no laxity to the knee and the examiner assessed right knee strain with no clinical instability. In July 2007, the Veteran reported using a brace, but denied dislocations. Upon physical examination, there was no effusion and collaterals were within normal limits and equal bilaterally. McMurray's and Lachman's tests were negative. The posterior cruciate ligament was intact. No instability was noted. Therefore, while the Veteran has complained of giving way and locking, the objective evidence fails to show that his right knee disability results in instability or subluxation. As such, the Board finds that the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5257. Additionally, as the evidence of record fails to demonstrate ankylosis, dislocation of semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, the Veteran is not entitled to an increased or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. In this regard, the Board observes that the record reflects that a January 2003 MRI showed grade 1-2 intrasubstance, nonarticulating type tear involving the posterior horn of the medical meniscus; however, none of the records dated during the current appeal period reflect dislocation of the semilunar cartilage. In fact, at his July 2007 VA examination, the Veteran specifically denied any dislocations. The Board also notes that, at the October 2005 VA examination, the Veteran indicated that he had surgery scheduled for his right knee; however, none of the records show that such surgery actually occurred. Moreover, at the July 2007 VA examination, the Veteran specifically denied any surgery to the right knee. Therefore, no further consideration of the Veteran's right knee disability under Diagnostic Code 5258 or 5259 is warranted. Other Considerations The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected back and right knee disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, while the Veteran has testified that his back and right knee disabilities impact his work in that he limits himself in the amount of lifting he will do, the record fails to show that such service-connected disabilities render him unemployable. Specifically, the evidence reflects that the Veteran has a desk job and the June 2004 VA examiner reported that he was able to do his job without limitations. The October 2005 VA examiner also indicated that the Veteran is not limited in his work because it is a sedentary job. Therefore, the Board finds that the Veteran's back and right knee disabilities do not render him unemployable. Moreover, insofar as the Veteran's back and right knee disabilities interfere with his employability, the Board finds that such is contemplated by his assigned evaluations under the rating schedule. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In addition, the Board observes that the Veteran does not meet the threshold schedular criteria for TDIU. Therefore, as the Board has determined that a claim for TDIU has not been raised by the Veteran or the evidence of record, higher ratings for the Veteran's back and right knee disabilities may only be awarded on an extra-schedular basis. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra- schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected back and right knee disabilities with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's back and right knee symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms of his back and right knee disabilities that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's back and right knee disabilities may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for increased ratings for his back and right knee disabilities. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 20 percent for lumbar strain with radiculopathy is denied. A rating in excess of 10 percent for right knee strain with internal derangement is denied. ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs