Citation Nr: 1146184 Decision Date: 12/19/11 Archive Date: 12/29/11 DOCKET NO. 08-14 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease. 2. Entitlement to an initial rating in excess of 10 percent for left knee instability, effective May 2, 2011. 3. Entitlement to a rating in excess of 40 percent for lumbosacral strain with traumatic degenerative joint disease of L5-S1. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from December 1972 to December 1975 and May 1976 to October 1976. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2002 the RO granted service connection for left knee degenerative joint disease assigning a 0 percent rating, effective August 18, 1997. The RO denied an increased rating in excess of 20 percent for lumbosacral strain with traumatic degenerative joint disease of L5-S1 in a May 2002 rating decision. The Veteran filed timely notices of disagreement with these rating actions. In a June 2003 rating decision and statement of the case the RO assigned an increased rating of 40 percent for the lumbosacral spine disability, effective December 28, 2000; and an increased rating of 10 percent for the left knee disability, effective August 18, 1997. The Veteran filed another notice of disagreement with these assigned ratings in June 2003. He did not file a formal substantive appeal at that time, but by stating that he was not satisfied with the increased ratings for the spine and knee that were assigned in the June 2003 rating decision and statement of the case, he essentially communicated that he wanted to continue his appeal. Thus, the requirement that he file a substantive appeal at that time is deemed waived. See Percy v. Shinseki, 23 Vet. App. 37, 44-45 (2009). The RO subsequently readjudicated the claims in January 2007 and the Veteran filed another notice of disagreement, and after a statement of the case was provided, a substantive appeal. However, the Board will consider the March and May 2002 rating decisions as the decisions on appeal, since the Veteran filed notices of disagreement with these RO decisions and after the statement of the case was provided, has continued to assert that he was not satisfied with his knee and back disability ratings. In June 2011, the RO assigned a separate 10 percent rating for left knee instability, effective May 2, 2011. As the Veteran has not indicated that he is satisfied with this rating or the other ratings for the left knee and lumbar spine disability, these claims are still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for a cervical spine disability and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left knee range of motion is most severely limited from 0 degrees of extension to 130 degrees of flexion due to pain; and he has mild degenerative arthritis of the left knee. 2. The objective medical evidence shows mild left knee instability, from May 2, 2011. 3. The Veteran's thoracolumbar spine disability is manifested by painful motion, forward flexion most severely limited to 60 degrees due to pain, MRI findings of thecal sac and neural foraminal stenosis with disc bulge, and x-ray findings of disk disease and degenerative osteoarthritis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5010, 5260, 5261 (2011). 2. The criteria for a separate rating higher than 10 percent, effective May 2, 2011, for left knee instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5257 (2011). 3. The criteria for a rating higher than 40 percent for lumbosacral strain with traumatic degenerative joint disease of L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, DCs 5292 (2002), 5295 (2002), 5293 (2002), 5237 (2011), 5243 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 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. 38 C.F.R. § 3.159(b). 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). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). RO letters dated in March 2006, April 2006, and May 2007 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that worsening of his disability has on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The March 2006 and May 2007 letters also provided the Veteran with information on how VA determines and assigns effective dates. Regardless, with respect to the left knee disability, the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. at 490 (2006). As the Veteran was granted service connection and assigned an evaluation and effective date for the left knee disability, the Secretary had no obligation to provide further notice under the statute. Id. As such, the March 2006, April 2006, and May 2007 letters satisfied VA's duty to notify. Regarding the duty to assist, the RO has obtained the Veteran's service and VA treatment records. The RO also has provided him with two VA examinations. The examination reports obtained contain sufficient information to decide the issues on appeal and further examination is not necessary. See Massey v. Brown, 7 Vet. App. 204 (1994). Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Ratings Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App 505 (2007). In this case, there has not been a material change in the left knee disability level and a uniform rating is warranted. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. However, as discussed below, in this case, the record reflects that the Veteran's lumbar spine and left knee disabilities have remained constant with respect to the applicable schedular criteria. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires 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. A. Left Knee Disability The RO granted service connection for left knee degenerative joint disease, secondary to a service-connected right knee disability in March 2002. A 0 percent rating was assigned, effective August 18, 1997. The Veteran submitted a notice of disagreement in September 2002 contending that he should receive a higher rating for his left knee disability. In June 2003, the RO assigned an increased rating of 10 percent for the left knee disability, effective August 18, 1997. The Veteran continued to assert entitlement to an increased rating for his left knee disability on statements dated from June 2003 to May 2008. In June 2011, the RO assigned a separate 10 percent rating for instability of the left knee, effective May 2, 2011. The Veteran is currently rated at 10 percent disabled for the left knee under 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5010-5260. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved. 38 C.F.R. § 4.71a, DC 5003 and 5010. When there is arthritis and at least some limitation of motion, but the limitation of motion would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each affected major joint or group of minor joints. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Where the veteran has limited motion, 38 C.F.R. § 4.71a DC 5260 and 5261 provide ratings for limitation of flexion and extension of the knee, respectively. Under DC 5260, a noncompensable rating is assigned when flexion is limited to 60 degrees, a 10 percent rating is assigned when flexion is limited to 45 degrees, and a 20 percent rating is assigned when flexion is limited to 30 degrees. Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating is assigned when extension is limited to 10 degrees, and a 20 percent rating is assigned when extension is limited to 15 degrees. The Veteran underwent a VA examination in February 2001, at which time he reported that since he had been favoring the right knee more and putting more weight on the left side, he had been noticing more left knee problems with a history of noticing some sharp pain periodically. Examination of the left knee showed no swelling or effusion or tenderness in the knee joint. Patellar compression produced no pain and there was full range of flexion of 140 degrees and extension of 0 degrees without any pain or crepitus. X-rays of the knee joint revealed no bone or joint abnormality. A magnetic resonance imaging (MRI) report in March 2001 showed that the meniscus was intact without tear or degenerative change. The cruciate and collateral ligament was intact. It was noted that previous bone scan findings were read as consistent with mild degenerative joint disease of the left knee, however. A June 2003 VA treatment record notes complaints of increased knee pain. He underwent another VA examination in May 2006. He reported that he had weakness, stiffness, fatigability, lack of endurance, giving way, and instability associated with his left knee disability. He also reported additional limitation of motion and functional impairment during flare-ups, when he was unable to raise his leg very high and stated that his left would feel really tight. He denied use of assistive devices like crutches, cane, or corrective shoes, but did state that he used a brace. He denied episodes of dislocation or subluxation of the left knee. He reported that his knee condition affected his activities of daily living because he was unable to stand, walk, or sit for long periods of time. He also mentioned that his knee condition affected his employment because he was a physical education teacher, but had to go back to school to become a counselor because of his difficulty with standing and walking for long periods of time. On physical examination, the Veteran's gait was normal with no use of assistive device. He was able to do a complete squat with no complaints of pain. Inspection of the knee showed no edema, erythema, or deformities. Palpation of the knees revealed a slight amount of tenderness on the right knee greater than the left. Range of motion in the left knee was 0 to 130 degrees with limitation due to moderate pain. Knee extension was 0 degrees with no pain. There was no additional loss of motion on repetitive motion of the knees due to pain, fatigue, or lack of endurance following repetitive use. Stability of the knee of the medial and lateral collateral ligaments and anterior and posterior cruciate ligaments was within normal limits. X-ray examination showed early degenerative osteoarthritis of the left knee. A May 2011 VA examination report shows the Veteran stated that he now had constant burning pain that increased to a sharp shooting pain in the left knee when walking. He also reported occasional giving way of the left knee. He used a knee brace which he stated helped with the knee buckling. At the time of examination, he walked with a mildly antalgic gait. However, he was able to walk on his heels and toes and do a squat with minimal difficulty. Inspection of the knee showed no swelling or warmth. He had moderate crepitus and popping of the left knee during range of motion. He had mild patellar inhibition but full range of motion of the knee with no additional loss as a result of repetitions. He also had no appreciated knee instability. On neurologic examination of the knee, however, it was found that he had some mild medial and lateral instability in the left knee and increased guarding during range of motion. X-ray examination showed early minimal degenerative changes in the left knee without narrowing of joint spaces. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the veteran. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Id. Taking pain on motion into consideration, as required by DeLuca, at most, the Veteran has motion of his left knee from 0 to 130 degrees, with no additional loss of motion after repetition. This range of motion finding warrants does not approach even the criteria for a noncompensable rating under DC 5260 or DC 5261. The current 10 percent rating under DC 5260 appears to be based upon painful motion and functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Therefore, a rating higher than 10 percent for the Veteran's arthritis of the left knee is not appropriate. To assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04. In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee. See VAOPGCPREC 23-97. Under Diagnostic Code 5257, a 10 percent rating is assigned slight recurrent subluxation or lateral instability; a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability; and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. The schedule of ratings, does not define the terms "slight," "moderate," and "severe;" rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran was assigned a separate 10 percent rating for instability of the left knee, effective May 2, 2011. The May 2011 VA examination report shows that the Veteran had mild medial and lateral instability in the left knee. The Veteran also ambulated with an antalgic gait and used a brace. As the objective medical evidence shows lateral instability of the left knee and the use of a left knee brace, a separate compensable rating for the left knee is warranted under DC 5257, as was implemented by the RO. The left knee lateral instability is no more than mild, however. Thus, a rating higher than 10 percent does not apply under DC 5257. Moreover, a separate rating for lateral instability is not warranted prior to May 2, 2011, as the medical evidence prior to this date showed that there was no lateral instability or recurrent subluxation in the left knee. While the Veteran reported that he used a knee brace and had left knee instability in May 2006, on physical evaluation, stability of the medial and lateral collateral ligaments and anterior and posterior cruciate ligaments was within normal limits. He also could squat without a brace and no pain. In weighing the Veteran's statements with the medical findings in this instance, the medical evidence has greater probative value, as while the Veteran's assertions of instability prior to May 2011 are competent, they are not consistent with the medical findings and not credible. For all the foregoing reasons, the Board finds that there are no objective medical findings that would support the assignment of a rating in excess of 10 percent for limitation of motion in the left knee; or a rating in excess of 10 percent for lateral instability of the left knee, effective May 2, 2011. Therefore, entitlement to an increased rating for the left knee disability is denied. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. The issue of entitlement to a total disability rating based on individual unemployability also has not been raised by the record as part of the Veteran's increased rating claim for his left knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, there is no evidence in the record that the Veteran has been rendered unemployable due to his left knee disability. It was last noted that the Veteran was working as a counselor. B. Lumbar spine disability The RO originally granted service connection for a low back disability in January 1978. The Veteran subsequently filed an increased rating claim that was denied by the RO in July 1996. In July 1997, the RO granted an increased rating of 20 percent for the low back disability. He filed his present increased rating claim in December 2000. In June 2003, the RO granted an increased rating of 40 percent for the low back disability, effective December 28, 2000, the date of the Veteran's increased rating claim. The Veteran has indicated that he is not satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Through statements submitted since December 2000, the Veteran has asserted that he has pain radiating to his lower extremities, spasms, limitation of motion, and problems standing or sitting for long periods of time due to his back disability. The Board notes that the schedular criteria for rating the spine have been amended twice during the pendency of the Veteran's appeal. First, the rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a , Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345 -54,349 (August 22, 2002). Second, effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended. See 68 Fed. Reg. 51,454 -51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). More specifically, effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome only, but continued to evaluate that disease under Diagnostic Code 5293. See 67 Fed. Reg. 54, 345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a , Diagnostic Code 5293 (2003)). Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine. This update included a renumbering of the diagnostic codes pertinent to back ratings. According to that renumbering, Diagnostic Code 5237 now governs ratings of lumbosacral strain, Diagnostic Code 5239 governs ratings of spondylolisthesis or segmental instability, and Diagnostic Code 5243 governs ratings of intervertebral disc syndrome. See 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243 (2006)). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3- 2000 (Apr. 10, 2000). Accordingly, the Board will herein review the Veteran's back claim under both the former and revised rating criteria. The RO evaluated the Veteran's low back disability under the former regulations in the May 2002 and June 2003 rating decisions and June 2003 statement of the case; and under the revised regulations in a January 2007 rating decision and April 2008 statement of the case, as well as a June 2011 supplemental statement of the case. As such, because the RO has considered the Veteran's back disability under the regulations in effect prior to September 2003, as well as under the current regulations, no prejudice results to the Veteran by the Board herein considering such regulation changes in adjudicating his claim. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Specifically, the Veteran is not prejudiced by the Board's reference to, and consideration of, all sets of rating criteria in the adjudication of his claim. Id. If the old criteria are used, the Veteran would be rated under DC 5292, which applied to limitation of motion of the lumbar region of the spine, or DC 5295, which applied to lumbosacral strain. However, under DC 5292, the maximum rating for limitation of motion is 40 percent for severe limitation of motion. The maximum rating under DC 5295 also is 40 percent for severe lumbosacral strain with listing of whole spine to the opposite side, positive Goldwaithe's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. Thus, higher ratings under DCs 5292 and 5295, are not available. Effective prior to September 23, 2002, under DC 5293, a 40 percent rating was provided for severe intervertebral disc syndrome with recurring attacks with intermittent relief; and a 60 percent rating was provided for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to site of diseased disc and little intermittent relief. A February 2001 private MRI report shows an impression of L4-L5 and L5-S1 annular bulges; and bilateral neural foraminal stenosis at L5-S1, severe on the left. It also was noted on a February 2001 VA examination report addressing the knee that the Veteran had a diagnosis of degenerative disk disease at L5-S1 and mild lumbar scoliosis noted on previous x-rays. An August 2002 private medical record notes that the Veteran complained of radicular pain into the lateral aspect of the right thigh and right lower leg. He denied any bowel or bladder dysfunction. On physical examination, there was moderate lower lumbar paraspinous tenderness, but no spasms. He had a negative straight leg raise sign in supine and sitting positions. The motor function, sensory function, and deep tendon reflexes were all symmetric and within normal limits. A February 2003 private MRI report shows severe desiccation at T12-L1 without complication; prominent Schmorl's nodules affecting the inferior endplates of L2 and L3; severe desiccation at L4-5 with annular bulge causing more foraminal encroachment on the left than right; and severe desiccation at L5-S1 with annular bulge causing more foraminal encroachment on the left than right. In February 2006, a VA examination report shows the Veteran related flare-ups of the lumbar spine in the form of muscle spasms, shooting pain down the left leg, and shooting pain up the spine to the upper thoracic region. He stated that associated symptoms in the lower back were weakness, numbness, visual disturbances, dizziness, and malaise. He also reported bladder complaints in that he had to get up to use the bathroom about every hour, although it had been improving. He denied bowel complaints or erectile dysfunction. On physical examination, the thoracic spine was symmetrical without abnormal curvature. There was mild paraspinal tenderness noted on the lower lumbosacral area. The Veteran had a normal gait, erect with no instability, incoordination, tremors, or muscle atrophy noted. On neurological evaluation, pinprick sensation was intact and he had normal position sense. Deep tendon reflexes were symmetrical and graded 2+ bilaterally. Babinski's sign was negative. MRI studies in May 2005 noted thecal sac and neural foraminal stenosis with disc bulge. X-ray examination also showed osteoarthritis of the lumbar spine without compression fractures. A May 2011 VA examination report primarily addressed the knees, but also addressed the lumbar spine. Neurologic examination showed that deep tendon reflexes were within normal limits and the Veteran had normal sensation to pain, touch, temperature, vibration, and position sense. His motor and sensory status of his peripheral nerves was normal. There were no neurological abnormalities appreciated at that time. These findings do not warrant a 60 percent rating under DC 5293. Although the Veteran stated that he had spasms during flare-ups, the objective findings did not demonstrate any muscle spasms in the lumbar spine. His reports of frequent use of the bathroom also do not specifically indicate any neurological problems with the lumbar spine. Sensory examination in the peripheral nerves was normal as reported in May 2011, with no findings of absent ankle jerk or other neurological findings. The Veteran complained of radiating pain to the lower extremities and MRI findings showed a bulging disk and neuroforaminal stenosis. However, this impairment is considered under the criteria for a 40 percent rating, for severe intervertebral disc syndrome with recurring attacks with intermittent relief. The revised criteria pertaining to ratings for intervertebral disc syndrome, under DC 5293 were amended effective from September 23, 2002. The revisions were designed to accommodate acute exacerbations or flare-ups of disc disease. As such, the revised regulations provided that intervertebral disc syndrome (preoperatively or postoperatively) should be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under DC 5293, a 40 percent evaluation is assigned with incapacitating episodes of having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent evaluation is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months. 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. See 38 C.F.R. § 4.17a , DC 5293, Note (1). None of the medical evidence reflects that the Veteran was prescribed any bedrest by a physician. Thus, a rating higher than 40 percent is not warranted under the revised criteria for intervertebral disc syndrome, DC 5293. The Board has also considered whether the Veteran is entitled to a higher rating under 38 C.F.R. § 4.71a, DC 5289, which rated ankylosis of the lumbar spine. In this regard, the Board notes that, prior to September 26, 2003, a 40 percent disability rating was assigned for favorable ankylosis of the lumbar spine, and a 50 percent disability rating was assigned for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a , DC 5289 (2003). The Board highlights that the United States Court of Appeals for Veterans Claims (Court), citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has repeatedly recognized that, at least for VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). The evidence of record demonstrates that the Veteran has severely limited range of motion of the lumbar spine. Specifically, at his May 2006 VA examination, forward flexion of the thoracic spine was to 60 degrees with limitation due to mild pain. He was unable to perform extension. Left lateral flexion was to 25 degrees due to mild pain; and right lateral flexion was to 15 degrees due to mild pain. With repetitive range of motion of the lumbar spine, left and right flexion revealed fatigue and weakness, with no additional loss of degrees as a result of repetitive motion. In May 2011, on VA examination, forward flexion of the thoracolumbar spine again was to 60 degrees of flexion with moderate limitation due to pain. Extension was to 20 degrees with moderate limitation due to pain. Lateral flexion to the right and left was to 20 degrees also with moderate limitation due to pain. He had increased guarding of his lumbar spine as a result of repetitions but no additional loss in range of motion. As such, the evidence of record clearly demonstrates that the Veteran has significantly decreased range of motion of the lumbar spine, and experiences pain throughout his range of motion. Significantly, however, although the evidence of record reveals that the Veteran has severely limited range of motion of his lumbar spine, given the above range of motion findings, the record fails to show that, even when considering the Veteran's functional loss due to pain, weakness, fatigability, and incoordination, his limitation of motion more nearly approximates ankylosis of the spine (i.e., that the Veteran's spine is immobile). In this regard, the Board acknowledges that in May 2006 the Veteran reported that he could not bend over during a flare-up. Significantly, however, the range of motion findings of record demonstrate that, throughout the duration of his appeal, the Veteran has been able to achieve forward flexion of 60, extension between 0 and 20 degrees, and lateral flexion of 0 to 15 to 25 degrees bilaterally. Moreover, the Board highlights that, at his May 2006 and May 2011 VA examination, the examiner specifically noted that repetitive motion testing did not change his range of motion. Additionally, the May 2011 examiner specifically found that there were no postural abnormalities or fixed deformities of the lumbar spine. As such, because the evidence of record shows that the Veteran has motion of the spine, albeit extremely limited motion, there is no showing of ankylosis of the lumbar spine. On this record, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent for his lumbar spine under 38 C.F.R. § 4.71a , DC 5289, for ankylosis of the lumbar spine. Finally, the Board has considered whether a higher rating is available to the Veteran under 38 C.F.R. § 4.71a , DC 5285, which rated residuals of a fracture of the vertebra. In this regard, the Board notes that, prior to September 26, 2003, a 60 percent disability rating was assigned for residuals of a fracture of the vertebra without cord involvement, and with abnormal mobility requiring a neck brace (jury mast); and a 100 percent disability rating was assigned for residuals of fracture of vertebra with cord involvement where the Veteran was bedridden or required long leg braces. 38 C.F.R. § 4.71a , DC 5285 (2003). In this case, however, there is simply no evidence of record that the Veteran has residuals of a fracture of the vertebra of the thoracic or lumbar spine. Rather, the May 2006 VA examiner specifically noted that x-rays of the lumbar spine revealed no compression fractures. Additionally, none of the MRI reports of record demonstrate any fractures to the lumbar spine. As such, because there is no evidence of record that the Veteran has residuals of a fracture of the vertebra of the lumbar spine, 38 C.F.R. § 4.71a , DC 5285 (2003) does not apply to this case. If the revised criteria are applied from the September 26, 2003 effective date, the Veteran would be rated under DC 5237, which applies to lumbosacral strain, or under DC 5243, the renumbered Diagnostic Code that applies to intervertebral disc syndrome. Under DC 5237, a 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less. A rating in excess of 40 percent requires the presence of unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine. Under Note (1), evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. A rating in excess of 40 percent does not apply under the General Rating Formula for Diseases and Injuries of the Spine, because, as discussed above, there are no findings of ankylosis of the thoracolumbar spine. The Veteran reported an inability to bend over during flare-ups on the May 2006 VA examination report but objective evaluation in May 2011 showed specifically that there were no postural abnormalities or fixed deformities. As to the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds no basis on the evidence of record that would substantiate a higher ratings. There was pain on motion, but no additional limitation with repetitive motion. Thus, a higher rating is not warranted under DC 5237. Also a rating higher than 40 percent is not warranted under DC 5243, the renumbered Diagnostic Code that applies to intervertebral disc syndrome, because there are no findings in the record of physician-prescribed bedrest. Turning to neurological impairment, as rated separately from orthopedic impairment, in rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a . When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, DC 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. In this case, the Veteran reported that pain radiated to his lower extremities and that he had numbness. MRI findings showed thecal sac and neural foraminal stenosis with disc bulge. He also indicated that he had problems with frequent urination but this was not found as being related to his impairment in the lumbar spine. Neurological examination in May 2006 showed that his pinprick sensation was intact and deep tendon reflexes were symmetrical and graded 2+ bilaterally. His Babinski's sign also was negative. The May 2011 neurological evaluation also showed that motor and sensory status in the peripheral nerves was normal. Based on these findings, notwithstanding the Veteran's subjective complaints, a separate rating based on neurological impairment is not warranted. As the Veteran's subjective complaints are inconsistent with the objective neurological evaluation, his assertions do not warrant entitlement to a separate neurological evaluation. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against entitlement to a rating in excess of 40 percent for the Veteran's low back disorder. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. The issue of entitlement to a total disability rating based on individual unemployability also has not been raised by the record as part of the Veteran's increased rating claim for his lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, there is no evidence in the record that the Veteran has been rendered unemployable due to his lumbar spine disability. III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2011). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran'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 those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran'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 C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's left knee disability (i.e., painful motion and lateral instability) and the back disability (painful motion) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 10 percent rating assigned under DC 5010-5260 contemplates symptoms such limitation of motion due to arthritis; and the separate 10 percent rating under DC 5257 contemplates slight and moderate lateral instability, respectively. Moreover, the 40 percent rating under DC 5237 contemplates limitation of motion of the spine due to pain. Thus, the Board finds that these rating criteria reasonably describe the Veteran's disabilities. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease is denied. Entitlement to an initial rating in excess of 10 percent for left knee instability, effective May 2, 2011 is denied. Entitlement to a rating in excess of 40 percent for lumbosacral strain with traumatic degenerative joint disease of L5-S1 is denied. REMAND In May 2008, the RO denied service connection for a cervical spine disability and headaches. In July 2008, the Veteran submitted a written notice of disagreement with this decision. The RO has not issued a statement of the case or supplemental statement of the case which addresses the service connection claims for the cervical spine and headaches. Thus, the Board finds that a remand for this action is necessary. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26, 19.29, 19.30; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the Veteran and his representative addressing its denial of service connection for a cervical spine disability and headaches. The statement of the case should include all relevant law and regulations pertaining to the claims. The Veteran must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b). Thereafter, if an appeal has been perfected, this issue should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs