Citation Nr: 1301197	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  10-23 357	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine.

2. Entitlement to an initial evaluation in excess of 10 percent for status-post left knee surgery with scar.

3. Entitlement to an initial evaluation in excess of 10 percent for right knee retropatellar pain syndrome with bursitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from December 1982 to June 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The Board notes that although the Veteran has submitted evidence of medical disabilities, and made claims for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to his disabilities. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

The the issues of entitlement to an increased disability rating for service-connected right foot fracture and service connection for bilateral ankle pain and swelling have been raised by the record (in the Veteran's Supplemental Claim for Compensation, received in March 2012) but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 

The issues of entitlement to a higher initial evaluation for status-post left knee surgery with scar and for right knee retropatellar pain syndrome with bursitis are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

Degenerative disc disease of the lumbar spine is not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code 5242 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. The Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b) (1). 

The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required for this claim.

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records and providing the Veteran with VA examinations in June 2008 and July 2010.

Additionally, the Board notes that neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained.  The Board thus concludes that there are no additional records outstanding with respect to that claim.  Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II. Merits of the Claim

The Veteran claims that his low back disability warrants disability ratings higher than what has already been assigned.  Historically, the RO assigned an initial 20 percent disability rating for the low back disability in the October 2008 rating decision, effective from July 1, 2008, the date after the Veteran separated from service.  The Veteran disagrees with this decision.  

Governing Law and Regulations

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

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.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 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).  However, in the present case, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating 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. 

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). 

It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  See also 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered.  However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  Furthermore, the Court has recently held, however, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  

Throughout the period of appeal, the Veteran's DDD of the lumbar spine has been evaluated as degenerative arthritis of the spine (designated at Diagnostic Code 5242) and is rated as 20 percent pursuant to the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012).  (Diagnostic Code 5003 requires that arthritis be evaluated on the basis of limitation of motion, if compensably disabling based on the effect of arthritis on the affected joints.  38 C.F.R. § 4.71a.)

Under Diagnostic Code 5003, the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected.  38 C.F.R. §§ 4.71a, Diagnostic Code 5003 (2012). 

When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is warranted if there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations.  However, Note (2) to Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings with no limitation of motion of the joint or joints will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). 

The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 

A 20 percent rating is warranted when there is forward of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. 

Note: (2) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  (See also Plate V.) 

Note: (3) In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note: (4) Round each range of motion measurement to the nearest five degrees. 

Note: (5) For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note: (6) Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). 

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating.  Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 

Note: (1) For purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 

Note: (2) If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 

Factual Background and Analysis

The Veteran was afforded a VA examination in June 2008 where he stated he stretches every twenty to thirty minutes and avoids sudden stresses on his low back.  He stated he is able to drive but needs to stretch and relax his back after a hour and a half.  He stated that being in one particular position, such as standing for five to ten minutes or sitting for thirty minutes or more, can aggravate his lower back pain.  The Veteran reported mild pain in his low back can occur daily and moderate or greater pain can occur once to fifteen times a month.  See VA examination, dated June 2008.

A physical examination revealed a range of motion of 80 degrees forward flexion with pain between 60 and 80 degrees; 25 degrees extension with pain between 15 to 25 degrees; 25 degrees of left lateral bending with pain between 15 and 25 degrees; right lateral bending at 30 degrees with pain between 20 to 30 degrees; and bilateral rotation at 45 degrees.  The VA examiner noted that initially a complete range of motion was unobtainable due to the pain and impaired endurance.  The pain increased to a maximum of 2/10 scale diffusely in the paraspinals L4-L5-S1 level.  There was no radiation or signs of radiculitis.  The forward flexion decreased to 75 degrees, extension to 18 degrees, and bilateral lateral bending to 22 degrees.  There were no spasms and sacroiliac joints were normal.  X-rays of the lumbar spine taken in January 2008 showed early L4-L5-S1 DDD.  Id.

In May 2010, the Veteran submitted a letter stating that the VA examiner "did not clarify the fact that there is pain with movement... I continually have shooting pain in my right leg when I attempt any type of bending movement.  The pain in the back area is constant and I have been seen for that particular situation time and time again with no relief.  The pain, stiffness, aching, and loss of flexion should be rated at the 40 percent rating or higher."  See Veteran's letter, dated May 2010.

The Veteran underwent another VA examination in July 2010, where he reported daily, moderate pain lasting 24 hours.  He also described moderate stiffness in his low back that occurs daily lasting 24 hours.  He stated he is able to walk a few blocks for about thirty minutes.  The Veteran does not use an ambulatory walker and his walk was not unsteady.  See VA examination dated July 2010.

A physical examination revealed the Veteran's gait was normal.  The Veteran had painful range of motion with no ankylosis.  The range of motion was 50 degrees forward flexion, 55 after fifth repetition; 10 degrees extension, 12 degrees after fifth repetition; 20 degrees left lateral flexion, same after fifth repetition; 25 degrees right lateral rotation, same after fifth repetition; 25 degrees left lateral rotation, 30 degrees after fifth repetition; and 20 degrees right lateral rotation, same after fifth repetition.  There was objective evidence of pain and lack of endurance but no fatigue, weakness, incoordination, muscle spasm, effusion, instability, tenderness, redness, heat, or abnormal movement (including after repetitive use).  There was no evidence of vertebral fractures and the bilateral straight leg raise test was negative.  Furthermore, the lower extremity motor and sensory functions were all normal.  Id.

Considering the evidence of record in light of the pertinent legal authority, the Board finds that the criteria for a rating in excess of 20 percent for DDD of the lumbar spine have not been met.  Evidence of record does not show that the Veteran suffers from forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  The Board has also determined that the assignment of a higher rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, as the June 20008 and July 2010 VA examination reports did not indicate there were signs of lumbar intervertebral disc syndrome or periods of incapacitating episodes. 


The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7.  As stated above, pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion.  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40.  Indeed, as noted, even with his complaints of pain, the Veteran has not demonstrated loss of flexion to 30 degrees. The evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from symptoms like painful motion, stiffness, and lack of endurance. 

The Board is fully cognizant that the Veteran has consistently reported pain associated with his service-connected lumbar spine disability.  The Board has considered the factors regarding pain and functional loss noted above.  Here, however, the weight of the evidence is against a finding that pain or limitation of motion on repetitive use results in functional loss warranting the assignment of any increased evaluation.

The Veteran also submitted written statements and hearing testimony discussing the severity of his service-connected lumbar spine symptomatology.  In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report his increased lumbar spine symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  However, the clinical evidence of record does not indicate that the assignment of any increased evaluation is warranted.  As the Veteran's statements are inconsistent with the evidence of record, the Board finds his assertions of increased lumbar spine symptoms to lack credibility as well as probative weight.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance").  Thus, evidence of increased lumbar spine symptomatology has not been established, either through medical or lay evidence, during the appeal period.

Extraschedular Consideration

The Board will consider whether referral for an extraschedular evaluation is warranted.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  Id.  Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the Board finds that the rating criteria reasonably describe his disability level and symptomatology.  There is no evidence of marked interference with employment, frequent periods of hospitalization, or any other factor that would render inappropriate the application of regular rating standards.  Thus, his disability picture is contemplated by the rating schedule, and the assigned scheduler evaluation is, therefore, adequate.  Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. 

For all the foregoing reasons, the Veteran's claim for entitlement to an evaluation in excess of 20 percent for DDD of the lumbar spine must be denied.  In applying the regulatory criteria, the Board is unable to find that the disability picture more nearly approximates the criteria for a rating in excess of 20 percent at this time.  The Board has also considered additional staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted.  The Veteran may always file a new claim for an increased rating should the disability increase in severity in the future.  However, since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied.






REMAND

Currently, the Veteran is service connected for status-post left knee surgery with scar and right knee retropatellar pain syndrome with bursitis, both assigned a 10 percent disability rating, effective July 1, 2008.

The Veteran and his representative contend that while the current compensation for the bilateral knees have been premised on the loss of motion, a MRI taken in 2009 "demonstrates he also suffers from soft tissue damage.  The [V]eteran argues that a separate compensable rating is warranted for the soft tissue problems, since they are not address in the criteria for arthritis with loss of motion."  See Appellant's Brief, dated January 2012.

The Veteran's right knee disability is evaluated under Diagnostic Code 5260-5019, limitation of flexion of the leg and bursitis.  38 C.F.R. § 4.71a.  The Veteran's left knee disability is evaluated under Diagnostic Code 5260-5024, limitation of flexion of the leg and tenosynovitis.  Id.  Diagnostic Codes 5019 and 5024 instructs the rater to evaluate the disability based upon limitation of motion of the affected part as degenerative arthritis.  Id.  Under Diagnostic Code 5260, a noncompensable evaluation is assigned when flexion is limited to 60 degrees.  A 10 percent evaluation is warranted when flexion of the leg is limited to 45 degrees.  A 20 percent evaluation is warranted when flexion is limited to 30 degrees.  A 30 percent evaluation is warranted where flexion is limited to 15 percent.  38 C.F.R. § 4.71a, DC 5260.  Normal flexion is 140 degrees.  38 C.F.R. § 4.71a, Plate II.

Separate ratings for soft tissue damage of the knee are also compensable under Diagnostic Code 5257 for recurrent subluxation or lateral instability; Diagnostic Code 5258 for dislocated semilunar cartilage with locking, pain and effusion; Diagnostic Code 5259 for removal of semilunar cartilage, symptomatic; Diagnostic Code 5262 for impairment of the tibia and fibula; and Diagnostic Code 5263 for genu recurvatum.  A separate rating under Diagnostic Code 5256 for ankylosis is also applicable.

According to the evidence of record, a MRI taken in September 2009 of the left knee, the radiologist stated, "I believe there is a small longitudinal tear of the anterior horn of the lateral meniscus[.]  At a minimum, there is degeneration of the anterior horn of the lateral meniscus without a tear[.]  No definite tear of the meniscus."  See VA treatment record, MRI, dated September 2009.

The Veteran underwent a VA examination in July 2010, where the September 2009 MRI was not addressed regarding the presence of a tear on the lateral meniscus.  At this examination, the Veteran also reported experiencing pain, instability swelling, locking, fatigability, and lack of endurance.

It is unclear to the Board whether the evidence demonstrates soft tissue damage and if so, how it affects the Veteran's functional loss.  As such, a new VA examination is necessary to ensure that there is a complete record upon which to decide the Veteran's appeal and to afford him every possible consideration.

Accordingly, the case is REMANDED for the following action:


1. Schedule the Veteran for a VA examination to identify the nature and extent of all current functional impairment associated with the service-connected right and left knee disabilities. 

Describe range of motion, including range of motion without pain and range of motion with pain.  Describe whether and at what point during the range of motion of the knees the Veteran experiences any limitation of motion specifically attributable to pain, and whether there is any additional range of motion loss due to weakened movement, excess fatigability, incoordination, or flare-ups.  

The examiner should specifically state whether there is instability or subluxation on objective examination, and describe the Veteran's report of such symptoms, if any, including the frequency and severity.  State whether the Veteran has experienced a flare-up which has resulted in additional functional loss, and describe the functional loss during each period of flare-up.

Importantly, if a tear in the left lateral meniscus is present, the examiner should address whether there is objective evidence of frequent episodes of "locking," pain, and effusion into the joint.  See 38 C.F.R. § 4.71a, DC 5258.  The examiner is asked to address the findings of the September 2009 MRI of record. 

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 

The examiner should explain the rationale for all opinions given. If any requested opinion cannot be provided without resort to pure speculation, the examiner should explain why the opinion cannot be provided and identify information that might assist to provide a basis for a non-speculative opinion. 

2. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the instruction above, the claim should be readjudicated.   If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review.

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. 2012).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs