Citation Nr: 1103535 Decision Date: 01/27/11 Archive Date: 02/08/11 DOCKET NO. 08-16 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable rating for a low back disability. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability. 3. Entitlement to an initial rating in excess of 10 percent for a left knee disability. 4. Entitlement to an initial compensable rating for a left ankle disability for the period prior to August 6, 2010, and in excess of 10 percent thereafter. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1996 to May 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in October 2005 and December 2006 by the Columbia, South Carolina, and Winston- Salem, North Carolina, Regional Offices (RO) of the Department of Veterans Affairs (VA). The case was subsequently transferred to the RO in Pittsburgh, Pennsylvania while the Veteran relocated to Germany. In May 2010, the case was transferred to the RO in Atlanta, Georgia, where the Veteran currently resides. In October 2009, the Board remanded these matters to the RO for additional development. By a September 2010 decision, the RO granted a higher initial 10 percent rating for the Veteran's left ankle disability, effective from August 6, 2010 (date of VA examination showing an increase). As the claims for higher initial ratings on appeal follow the grant of service connection, the Board has characterized these matters in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service- connected disabilities). Further, while the RO has assigned a higher rating for the Veteran's left ankle disability during the pendency of this appeal, as a higher rating is available before and after August 6, 2010, and the Veteran is presumed to seek the maximum available benefit, the claim for a higher rating remains viable on appeal. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All notification and development needed to fairly adjudicate each claim on appeal has been accomplished 2. Since the May 6, 2005 effective date of the grant of service connection, the Veteran's low back disability is shown by x-ray findings to consist of degenerative arthritis and manifested by satisfactory evidence of painful motion. 3. Since the May 6, 2005 effective date of the grant of service connection, the right knee disability has been manifested by complaints of pain, normal extension to 0 degrees, and flexion limited to 115 degrees, at most; there are no medical findings of fatigue, weakness, lack of endurance, subluxation or instability. 4. Since the May 6, 2005 effective date of the grant of service connection, the left disability has been manifested by complaints of pain, normal extension to 0 degrees, and flexion limited to 130 degrees, at most, with no medical findings of fatigue, weakness, lack of endurance, subluxation or instability. 5. Prior to August 6, 2010, the Veteran's left ankle disability was manifested by no more than mild symptoms. 6. Since August 6, 2010, the Veteran's left ankle disability was manifested by moderate limitation of motion without ankylosis or malunion. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 10 percent rating for a low back disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242 (2009). 2. The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5099-5024 (2009). 3. The criteria for an initial rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5099-5024 (2009). 4. The criteria for an initial compensable rating for a left ankle disability for the period prior to August 6, 2010, and in excess of 10 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a July 2005 pre-rating letter provided notice to the Veteran of the evidence and information needed to substantiate his claims for service connection. This letter informed the Veteran of what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter further requested that the Veteran submit any additional information or evidence in his possession that pertained to his claims. Following this notice letters, the RO granted service connection for each disability on appeal. In addition, a June 2010 letter provided the Veteran with information regarding disability ratings and effective dates consistent with Dingess/Hartman. After issuance of the above letters, and proving the Veteran and his representative additional opportunity to respond, the RO readjudicated each issue on appeal in a September 2010 SSOC. Hence, the Veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). Additionally, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence of record includes the Veteran's service treatment records, private medical records and the reports of VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran as well as by his representative, on his behalf. The Board notes that in a June 2010 letter, the Veteran was requested to provide sufficient information and if necessary, authorization to obtain any outstanding medical records from VA and non-VA health care providers who have treated him for the disabilities on appeal. However, no response was received from the Veteran. In this regard, the Board observes that VA's duty to assist is not a one-way street; the Veteran also has an obligation to assist in the adjudication of his claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that no additional RO action to further develop the record is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim(s). Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background An August 2005 VA general examination report reflects that the Veteran complained of bilateral knee and ankle pain. He described his knee pain as also associated with activity. He has stiffness in the knee and a feeling of stiffness in the ankles. There is no feeling of instability and no locking. Treatment is with Ibuprofen, with good relief of the symptoms most of the time. He has flare-ups associated with activity of his ankles and knees. He does not use a cane or crutch. His right knee was wrapped with an Ace bandage at that time. He does not have any other brace or knee support. He uses the Ace bandage just as a reminder that he has this problem so he will not overdo his activity or overdo flexing his knee. He has had no episodes of dislocation or recurrent subluxation. No inflammatory arthritis. Effect of the condition on his usual occupation is that he has increased pain with prolonged standing. He is required to do standing and walking around as a teacher. He frequently has to sit down because of discomfort. However, it does not seem to interfere with his daily activities. He plays a little basketball, but not real strenuous. He can do this sort of thing without any major incapacitation. Physical examination revealed that the knees appeared normal. There was no crepitation. There is tenderness over the insertion of the patella tendon bilateral and some tenderness on the adjacent patella on the lateral patella tendon fossa. However, there is no effusion or joint fluid. Both knees extend to 0 degrees and can be locked in place. The right knee flexes to 115 degrees and the left knee flexes to 130 to 135 degrees and he can bring it up to 140 degrees with assistance. He is unable to do a knee bend other than about half-way because of discomfort. Both knees are stable. Repetitive movements of the knees are done without any problem. However, he could not do repetitive movement such as doing repeat knee bends, but he could do simple repetitive movement involving the knee against gravity. There was no increased pain or loss of range of motion. Physical examination of the ankles revealed that they appeared normal. Dorsiflexion to 20 degrees bilateral and plantar flexion to 45 degrees bilateral. There was no tenderness or pain on motion of the ankle or pain with motion of the knees. There were no callosities or abnormal shoe wear involving knees or ankles. No ankylosis. Repetitive movement of the ankles was done without alteration in the range of motion and no increased pain. In fact, there was no pain at all. With regard to the spine, the Veteran complained of low back pain that was aggravated by standing and with activity. Treatment is with Ibuprofen with good response and no side effects. No flare- ups. He does not use a cane, crutch, or brace. The VA examiner noted that the Veteran got up and down from the examination table several times without any difficulty. He did not appear to have any limitation of movement of the back. He moves around easily. He has normal agility, just watching him in his actions during the examination. Range of motion noted forward flexion to 90 degrees, done easily, resuming the erect position easily. Extension to 20 degrees, done easily with no pain. Lateral bend to 30 degrees, bilateral, done easily without pain. Rotation to 45 degrees, done easily without pain. Repetitive movement of the back was done with no pain and no impairment of function. There was no evidence of any painful movement. There was no postural abnormalities and the musculature of the back was normal. Neurological was normal. X-ray of the lumbosacral spine revealed degenerative changes with osteophytes noted of L3-S1. Mild bony erosion noted anteriorly of L3-L4. The joint spaces are unremarkable. X-rays of the right and left knees were negative. X-ray of the left ankle revealed old trauma. The diagnoses were chronic mechanical back strain, bilateral patellofemoral syndrome and ankle sprains, remote with residual. In an October 2005 rating decision, the RO granted service connection for chronic mechanical back strain with degenerative changes and assigned a noncompensable rating effective May 6, 2005, the day following the Veteran's discharge from service. In the Veteran's November 2005 notice of disagreement, he stated that he wakes up with locked knees and back stiffness and that he is unable to bend his knees after walking even less than a half a mile. He furthered that he experienced knee-lock as well as instability (knee giving out). He furthered that to date, he wears an ankle brace prescribed by his orthopedic specialist. In a May 2006 medical record from Fayetteville Orthopaedics & Sports Medicine it was noted that the Veteran complained of bilateral knee pain and instability. The Veteran came in with MRIs which showed bilateral ACL deficient knees. The Veteran stated that his right knee gives out on a daily basis. He complains of more instability of the knees than pain. Physical examination revealed that the Veteran ambulated without a limp. Range of motion of the right knee was 0 to 140 degrees. The knee was stable to varus and valgus stresses. There was a mild knee effusion. Ligament testing revealed a positive anterior drawer sign, negative posterior drawer sign, a positive Lachman, and a positive pivot-shift. There is mild medial joint line tenderness and no lateral joint line tenderness. The Veteran has positive patellofemoral crepitus and a mildly positive patellofemoral grind test. The impression was bilateral ACL deficient knees. A May 2006 operative report from Fayetteville Ambulatory Surgery Center shows that the Veteran was diagnosed with right anterior cruciate ligament (ACL) tear and lateral meniscal tear. He underwent a diagnostic arthroscopy of the right knee, partial lateral meniscectomy, and arthroscopic ACL reconstruction with hamstring autograft. It was noted that the Veteran was having a considerable amount of instability of the right knee. An August 2006 medical record from Fayetteville Orthopaedics & Sports Medicine shows that the Veteran's right knee had range of motion of 0 to 135 degrees without pain. The knee was stable to varus and valgus. There was a negative knee effusion. The knee was stable to anterior and posterior stresses. There was no medial joint line tenderness and no lateral joint line tenderness. The Veteran had negative patellofemoral crepitus and a negative patellofemoral grind test. He has approximately one centimeter quad atrophy on the right compared with the left. The impression was status post right ACL reconstruction - doing well. A December 2006 medical record from Fayetteville Orthopaedics & Sports Medicine shows that the Veteran was doing well and has no signs of symptoms of instability of the right knee. He does have some mild pain in the right knee at times. He has no evidence of catching, locking or giving away of his right knee. His biggest complaint presently was instability, pain and swelling of the left knee. Examination of the right knee showed range of motion from 0 to 140 degrees without pain. The knee was stable to varus and valgus. Ligament testing revealed a negative anterior drawer sign, negative posterior drawer sign, a negative Lachman, and a negative pivot-shift. There was no medial joint line tenderness and no lateral joint line tenderness. The Veteran had mild patellofemoral crepitus and a mildly positive patellofemoral grind test. He continued to have some mild quad atrophy on the right side. Left knee showed range of motion from 0 to 140 degrees. The knee was stable to varus and valgus. Ligament testing revealed a positive anterior drawer sign, negative posterior drawer sign, a positive Lachman, and the Veteran's was unable to do a pivot-shift. There was mild medial joint line tenderness and no lateral joint line tenderness. The Veteran had positive patellofemoral crepitus and a mildly positive patellofemoral grind test. The impression was status post right ACL reconstruction with hamstring autograft and left knee ACL deficiency. In a December 2006 rating decision, the RO granted service connection for patellofemoral syndrome of the right and of the left knee, and assigned an initial 10 percent rating for each knee, effective May 6, 2005, the day following the Veteran's discharge from service. In addition, the RO granted service connection for residual left ankle sprain, status post fracture of tibial plafond, and assigned an initial noncompensable rating, effective May 6, 2005, the day following the Veteran's discharge from service. In a January 2007 notice of disagreement, the Veteran stated that he sought a minimum of 10 percent for his service-connected low back disability. He stated that his back locks up and he is unable to stand for prolonged periods of time. With regard to his knees, the Veteran stated that he sought an additional 10 percent for each knee due to instability and that there is ample evidence to support reductions in extension and flexion. With regard to his left ankle disability, he reiterated that he wore ankle braces. A January 2007 operative report from Fayetteville Ambulatory Surgery Center shows that the Veteran was diagnosed with left ACL tear and left lateral meniscal degenerative fraying. He underwent a diagnostic arthroscopy of the left knee, partial lateral meniscectomy, and arthroscopic ACL reconstruction with hamstring autograft. It was noted that because of the Veteran's chronic instability to the left knee, he wanted to proceed with an ACL reconstruction. A March 2007 medical record from Fayetteville Orthopaedics & Sports Medicine shows that the Veteran had very little pain in the left knee and ambulates without a limp. Range of motion of the left knee was 0 to 140 degrees. The knee was stable to varus and valgus. There was a negative knee effusion. Ligament testing revealed a negative anterior drawer sign, negative posterior drawer sign, a negative Lachman, and a negative pivot- shift. There was no medial joint line tenderness and no lateral joint line tenderness. The Veteran had mild patellofemoral crepitus and a negative patellofemoral grind test. The impression was status post left ACL reconstruction - doing well. The plan was to fit the Veteran with an ACL brace. An August 2010 VA joints examination report reflects that the Veteran has been unemployed for six months because he has moved from Germany to the U.S. and is seeking employment at this time. He has not had problems carrying out his work. Regarding activities of daily living, the Veteran can accomplish these tasks. He can walk half a mile and can lift 175 pounds. Current treatment for his low back, knees, and left ankle is over the counter medications that are basically self-administered. He is not doing physical therapy for his service-connected disabilities. He is not currently using any ankle brace, crutches, canes, walkers or wheelchairs. He stated that he has been prescribed knee braces that he uses only when the knees act up or when he has to do a lot of activity. Today, he did not have knee braces on, and hence, it would appear that the knees are not acting up. There is no evidence of flare-ups of the right knee, left knee, left ankle, or low back. There is no history of incapacitating episodes of the low back during the past 12 months. With regard to the Veteran's knees, the situation is similar on the two sides except that the left knee pain is worse than the right knee pain. The pain is present mainly on the medial side on the two knees, but also in front and at the back. The left hurts more than the right, when the Veteran's gets up in the morning, on the left side, the joint is quite stiff and it takes him two to three minutes for it to loosen up and then he can proceed. On the right side, he sometimes has feeling of an electric shock when he puts excessive weight on it. There is no evidence of locking or giving way on either side. The pain is aggravated by walking and running, and relieved by elevation, ice, and pain pills. Examination revealed the Veteran to be a healthy looking individual and did not appear to be in acute pain. He walked without a limp and quite briskly. He was able to walk on tip-top and on his heels. It is noted that he does have a varus gait, that is to say a bow-legged gait, the Veteran stated that he has always been bow-legged. Limb lengths were equal. Range of motion of both knees measured with a goniometer was equal on both sides. He had full extension of 0 degrees and flexion of 0 to 130 degrees of flexion on each side. The ranges of motion were done three times and there was no evidence of pain, fatigue, weakness, lack of endurance, instability or incoordination with repeated testings. There was no additional loss of joint function or motion with use due to repeated testing. There was no evidence of mediolateral or anteroposterior instability. The VA examiner could not detect any crepitations or clicks in the knees. There was no sign of inflammation, in that there was no effusion, redness, heat or tenderness. X-rays of the knees revealed bilateral mild degenerative changes. There was evidence of prior bilateral anterior cruciate repair. The diagnosis was bilateral knee degenerative joint disease. He has evidence of internal derangement based on arthroscopic surgery. Regarding the low back, the Veteran stated that he has pain in the middle of the low back. It is felt broadly over the low back and radiates into the region of the buttocks and goes up to the upper end of the low back. But, other than that, there is no radiation and the pain is localized. There is no evidence of radiation down the legs. The Veteran states that aggravating factors are sitting and getting up. Relieving facts are rest and pain pills. He also finds that cold weather aggravates the back. Examination of the low back revealed that the Veteran had his normal lumbar lordosis. There was no evidence of paravertebral spasm. There was no tenderness. Range of motion of the lumbar spine measured with a goniometer was forward flexion 0 to 100 degrees, extension 0 to 40 degrees, right and left lateral flexion 0 to 35 degrees, lateral rotation to the right and left 0 to 45 degrees. The ranges of motion were done three times and there was no evidence of pain, fatigue, weakness, lack of endurance, instability or incoordination with repeated testings. There was no additional loss of joint function or motion with use due to repeated testings. Straight leg raising was 90 degrees on each side. Knee and ankle reflexes were 2+ and equal; and he had no loss of sensation in the lower extremity. He had 5/5 power in both lower extremities, to include ankle dorsiflexion and plantar flexion. X-ray of the lumbosacral spine revealed minimal changes of the lumbar spine. The impression was that while the Veteran complained of low back pain in the middle of the back, localized, examination was normal. The diagnosis was lumbar spine strain. Regarding the left ankle, the Veteran states that he has pain all around the ankle on the inside, outside, and front; however the insides of the ankle seems to aggravate him the worst. He states that most of the time, he does not have pain and this pain comes and goes. The pain is aggravated and present when he walks a lot or when he twists his ankle as he does from time to time. Examination revealed that he had no signs of inflammation around the ankle. There was no swelling, redness, heat or tenderness. Range of motion of the left ankle measured with a goniometer was dorsiflexion 0 to 10 degrees, plantar flexion 0 to 40 degrees, inversion 0 to 30 degrees and eversion 0 to 20 degrees. These ranges were within normal limits. The range of motion was done three times and there was no evidence of pain, fatigue, weakness, lack of endurance, instability or incoordination with repeated testings. There was no additional loss of joint function or motion with use due to repeated testings. X-rays of the ankles revealed minimal degenerative changes at the tibiotalar joints bilaterally. The impression was that examination of the left ankle was normal except for the loss of about 10 degrees of terminal dorsiflexion of that ankle. The diagnosis was left ankle strain. In a September 2010 rating decision, the RO granted a higher 10 percent rating for residual left ankle sprain, effective August 6, 2010, the date of the VA examination showing an increase in disability, based on moderate limited motion of the ankle. III. Increased ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2009). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A. Low back disability The Veteran's low back disability has been rated as noncompensable under Diagnostic Code 5242 for degenerative arthritis of the spine, which utilizes the rating criteria for general degenerative arthritis found in Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. The maximum disability rating is 20 percent, which is warranted with X-ray evidence of involvement of two or more major joints or 2 or more major joint groups, with occasional incapacitating exacerbations. Spine disabilities are evaluated under a General Rating Formula for Diseases and Injuries of the Spine, which contemplates a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71, Code 5242. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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. A 40 percent rating is in order for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating contemplates unfavorable ankylosis of the entire spine. A note following the schedular criteria directs that associated objective neurologic abnormalities are to be evaluated separately. See 38 C.F.R. § 4.71, Diagnostic Code 5242. Also, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The Board notes that criteria of the General Rating Formula are applied with and 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. In this case, while the findings in the medical evidence reflect that limitation of motion of the lumbar spine is noncompensable under the appropriate diagnostic codes, i.e., the General Rating Formula, the Board finds that by resolving all reasonable doubt in favor of the Veteran that an initial 10 percent rating is warranted for the Veteran's low back disability pursuant to Diagnostic Code 5003. In this regard, the Board points out that the Veteran is competent to state that he has pain on motion, which he has consistently reported in various medical reports and statements associated with the claims file such to find satisfactory evidence of pain on motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In order to warrant a higher rating, there must be the functional limitation of flexion to 60 degrees or less; a combined range of motion to 170 degrees or less; or muscle spasm or guarding resulting in abnormal gait or spinal contour. See DeLuca v. Brown, 8 Vet. App. 202. Here, neither the objective nor subjective evidence suggests that the Veteran is so impaired, even when considering functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use. As the Veteran's impairment does not approximate the functional equivalent of limitation of flexion to 60 degrees or less, combined range of motion to 170 degrees or less, or muscle spasm or guarding resulting in abnormal gait or spinal contour, a rating higher than 10 percent is not warranted for the Veteran's low back disability. B. Right and left knee disabilities The initial 10 percent ratings for the Veteran's right and left knee patellofemoral pain syndrome have been assigned under Diagnostic Codes 5099-5024. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2009). A note under Diagnostic Code 5024, for tenosynovitis, specifies that the diseases evaluated under DCs 5013 through 5024 (except gout) will be rated on limitation of motion of the affected parts, as arthritis, degenerative. See 38 C.F.R. § 4.71a, DC 5024. DC 5003 provides that 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See C.F.R. § 4.71a. Normal range of extension of the knee is to 0 degrees and normal range of flexion of the knee is to 140 degrees. See 38 C.F.R. Part 4, Plate II . Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5257, pursuant to which recurrent subluxation or lateral instability is rated, a 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for moderate impairment, and a 30 percent rating is assigned for severe impairment. The VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Further, VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, 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. VAOGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). Considering the objective medical evidence of record in light of the above, the Board finds that an initial rating in excess of 10 percent for the Veteran's service-connected left and right knee disabilities is not warranted at any point since the effective date of the grant of service connection. First addressing limited motion, the Board notes that, collectively, the evidence noted above reveals that the Veteran has had normal extension, which would not warrant a compensable rating under Diagnostic Code 5261. Moreover, while there has been some limitation of flexion of each knee with complaints of pain- such has not been shown to be to an extent that would warrant a compensable rating under Diagnostic Code 5260. Thus (per 38 C.F.R. § 4.71a, Diagnostic Code 5003), no more than a 10 percent rating is warranted for each knee. This is so even considering functional loss due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca. While the Board is aware of the Veteran's complaints of pain, there has been no findings of additional loss of motion on repetitive testing of the left and right knee due to pain and no reported weekly flare- ups, thus, the Veteran's pain is not shown by competent, objective evidence to be so disabling as to warrant even the minimal compensable rating under Diagnostic Code 5260, much less the next higher, 20 percent rating under that diagnostic code. Also for the reasons noted above, there is no basis for assignment of separate ratings for limited flexion and extension. The Board has also considered the applicability of other potentially applicable diagnostic codes for rating the Veteran's left and right knee disabilities, but finds that no higher rating is assignable. The Veteran has never demonstrated or been diagnosed with ankylosis of either knee, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum (hyperextended knee). Therefore, 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262, and 5263 are not for application. The Board has also considered DC 5257, for recurrent subluxation or lateral instability of the knee; however, as the August 2005 and August 2010 VA examination reports and private medical records show stable ligaments, this diagnostic code is not applicable. The Board is aware that while the Veteran underwent surgical repairs of his right and left knees in May 2006 and January 2007 for complaints of instability of each knee, the objective medical evidence is negative for recurrent subluxation or lateral instability. For this reason, there also is no basis for assignment of separate ratings for limited motion and instability. In sum, the initial 10 percent rating assigned for each knee in this case, is consistent with the provisions of 38 C.F.R. §§ 4.40 and 4.45, DeLuca, as well as the intention of the rating schedule, to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. However, no higher rating is assignable for either knee. Under these circumstances, the Board must conclude that the criteria for an initial rating in excess of 10 percent for the Veteran's service-connected right and left knee disabilities have not been met at any point since the effective date of the grant of service connection for each disability. As such, there is no basis for staged rating of either disability, pursuant to Fenderson, and each claim for a higher initial rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for the Veteran's service-right and left knee disabilities, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). C. Left ankle disability The Veteran is currently assigned a noncompensable disability rating for his service-connected left ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5271 for limitation of motion for the period prior to August 6, 2010, and a 10 percent disability rating thereafter. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of ankle motion. Marked limitation of ankle motion warrants a 20 percent evaluation. Normal range of motion for the ankle is 20 degrees for dorsiflexion and 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. In considering the applicability of other diagnostic codes, the Board finds that DCs Diagnostic Code 5262 (malunion of the tibia and fibula with slight knee or ankle disability), 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy), are not applicable as there was no evidence of ankylosis, malunion or astralgalectomy in the post-service medical records. Accordingly, those diagnostic codes may not serve as the basis for an increased rating. In this case, the evidence of record does not support the assignment of a compensable rating for the Veteran's left ankle disability for the period prior to August 6, 2010. This is so because there is no evidence to support a finding that the Veteran's left ankle disability results in moderate limitation of the ankle or painful or limited motion of the joint. During this period, the medical evidence of record shows that range of motion of the left ankle was full and painless with no change on repetitive motion, at most, consistent with mild symptoms. Thus, an initial compensable rating for the Veteran's left ankle disability for the period prior to August 6, 2010 is not warranted. In regards to a rating in excess of 10 percent for the service- connected left ankle disability for the period beginning August 6, 2010, the Board notes that the RO determined, essentially, that the evidence of record more closely approximated the criteria for moderate limited motion of the ankle based on findings in an August 6, 2010 VA examination. In this regard, the RO notes that dorsiflexion of 0 to 10 degrees (with normal of 0 to 20 degrees) and plantar flexion of 0 to 40 degrees (with normal of 0 to 45 degrees) was sufficient to describe the Veteran's left ankle disability as consisting of moderate limited motion of the ankle. A rating higher than 10 percent does not apply, as the medical evidence does not rise to the level of marked limitation of motion of the ankle, even when considering the effects of pain and repetitive motion on his left ankle. Thus, the Board finds that since the August 6, 2010 VA examination, the evidence does not reflect manifestations sufficient to characterize the Veteran's service-connected left ankle disability as severe. Under these circumstances, the Board must conclude that the criteria for an initial compensable rating for the period prior to August 6, 2010 and in excess of 10 percent thereafter for the Veteran's service-connected left ankle disability have not been met at any point during the respective appeal periods. As such, there is no basis for further staged rating of this disability, pursuant to Fenderson, and the claim for higher ratings must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for the Veteran's service-connected left ankle disability, before August 6, 2010 and thereafter, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). D. Each disability The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point during this appeal period have the Veteran's low back disability, bilateral knee disabilities or left ankle disability on appeal been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2009). In this regard, there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating for these issues. See Shipwash v. Brown, 8 Vet. App. 218 (1995). Here, the record does not reflect that the Veteran was hospitalized for his service-connected low back disability, bilateral knee disabilities, or left ankle disability. There is no objective evidence revealing that the low back disability, bilateral knee disabilities or left ankle disability alone caused marked interference with employment, e.g., employers' statements or sick leave records, beyond that already contemplated by the schedular rating criteria. In this case, the Board finds that schedular criteria are adequate to rate the service-connected disabilities under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial 10 percent rating, but no more, for the service- connected low back disability is granted from the May 6, 2005 effective date of the grant of service connection, subject to the law and regulations governing the payment of VA compensation benefits. An initial rating in excess of 10 percent for a right knee disability is denied. An initial rating in excess of 10 percent for a left knee disability is denied. An initial compensable rating for a left ankle disability prior to August 6, 2010, and in excess of 10 percent thereafter, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs