Citation Nr: 1314960	
Decision Date: 05/07/13    Archive Date: 05/15/13

DOCKET NO.  07-19 786	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for degenerative joint disease with intervertebral disc syndrome of the lumbar spine prior to January 14, 2009, and in excess of 40 percent thereafter.  

2.  Entitlement to a rating in excess of 10 percent for status post medial meniscectomy of the left knee with ostearthritis and scarring.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel


INTRODUCTION

The Veteran served on active duty from January 1957 to February 1965. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

The Board notes that the Veteran had requested hearings before a Decision Review Officer (DRO) at the RO and a Veterans Law Judge, which were most recently scheduled for July 2012 and February 2013, respectively.  However, the Veteran failed to appear for both scheduled hearings.  Therefore, the Board finds that the Veteran's requests for such hearings have been withdrawn.  38 C.F.R. § 20.704(d) (2012).

A review of the Virtual VA electronic storage system reveals the existence of VA clinic records dated through December 2011, which are not associated with the paper claims folder.  The agency of original jurisdiction (AOJ) has considered this evidence in the October 2012 supplemental statement of the case.


FINDINGS OF FACT

1.  For the period prior to January 14, 2009, degenerative joint disease with intervertebral disc syndrome of the lumbar spine was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees, and such did not result in the combined range of motion of the thoracolumbar spine being no greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; ankylosis; incapacitating episodes of intervertebral disc syndrome (IDS) requiring bedrest prescribed by a physician having a total duration  of at least two weeks during a 12 month period; or neurologic impairment.

2.  As of January 14, 2009, degenerative joint disease with intervertebral disc syndrome of the lumbar spine is not manifested by unfavorable ankylosis or incapacitating episodes of IDS requiring bedrest prescribed by a physician having a total duration of at least six weeks or more during a 12 month period, or neurologic impairment other than sciatic neuropathy of the left lower extremity.

3.  For the entire appeal period, status post medial meniscectomy of the left knee with osteoarthritis and scarring is manifested by full extension and, at worst, flexion limited to 90 degrees.

4.  Severe lateral instability of the left knee is a result of a fall caused by the Veteran's nonservice-connected double foot amputations. 

5.  The Veteran's scarring associated with his service-connected left knee disability is asymptomatic and not of a size so as to warrant a separate compensable rating.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for degenerative joint disease with intervertebral disc syndrome of the lumbar spine prior to January 14, 2009, and in excess of 40 percent thereafter are not met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010-5243 (2012). 

2.  The criteria for rating in excess of 10 percent for status post medial meniscectomy of the left knee with osteoarthritis and scarring are not met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.  

The issue of entitlement to an increased rating for the Veteran's service-connected lumbar spine disability is based on his disagreement with the initial rating assigned as a result of the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, 
§ 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for service connection for the lumbar spine disability on appeal was granted, and an initial rating assigned (the rating was increased by a subsequent rating decision), by the October 2005 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating for the service-connected lumbar disability at issue, no additional 38 U.S.C.A. § 5103(a) notice is required with respect to this issue because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Regarding the Veteran's claim for an increased rating for his service-connected left knee disability, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. (Fed. Cir. Sept. 4, 2009).  The Board finds that VA has satisfied its duty to notify under the VCAA with respect to the claim for an increased rating for the service-connected left knee disability.  Specifically, a May 2005 letter, sent prior to the initial unfavorable October 2005 rating decision issued, advised the Veteran of the evidence and information necessary to substantiate this increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, a November 2008 letter, which referenced Vazquez, provided more specific information concerning the evidence and information necessary to substantiate this increased rating claim, as well as that necessary to establish an effective date in accordance with Dingess/Hartman.  

While the November 2008 letter was issued after the initial October 2005 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter.  Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006).  The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  In the instant case, after the November 2008 letter was issued, the Veteran's claim for an increased rating for his service connected left knee disability was readjudicated in October 2009 and October 2012 supplemental statements of the case (SSOCs).  Therefore, any defect with respect to the timing of the VCAA notice has been cured. 

Next, VA has a duty to assist the Veteran in the development of the claims.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records and post-service private and VA treatment records.  Moreover, the Veteran's statements in support of the claims are of record.  The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.  

Additionally, the Veteran was afforded VA examinations in August 2005, October 2005, and January 2009 to evaluate the severity of the service-connected disabilities on appeal.  The Board finds that the VA examinations are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history and his lay assertions and current complaints, and because they provide sufficient detail to allow the Board to make fully informed determinations.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  The record reflects efforts to schedule the Veteran for further examinations that have not been successful, and a February 2011 VA Form 21-0820 (Report of General Information) indicated that the Veteran did not wish to attend an examination (while it was also indicated therein that the Veteran did not wish to "proceed" with his claim, the required written withdrawal of either claim has not been submitted).  See 38 C.F.R. § 20.204(b)).  The Board accordingly finds no reason to remand for further examination.  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Analysis

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

In this regard, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  The Virtual VA file reveals VA outpatient treatment reports dated through December 21, 2011, and the October 2012 SSOC documents review of such reports.  As such, a remand for consideration of any documents contained in the Virtual File that are not physically of record in another SSOC pursuant to 38 C.F.R. § 20.1304(c) is not necessary.  When describing a document contained in the Virtual VA file and not physically of record in the claims file, this fact will be so noted herein.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  All benefit of the doubt will be resolved in the appellant's favor.  38 C.F.R. 
§ 4.3. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities.  38 C.F.R. § 4.14. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

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 of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

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 enervation, 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 that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  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. 

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. 
§ 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. 

Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DC 5003.  DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, 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.  Traumatic arthritis is rated as for degenerative arthritis.  38 C.F.R. § 4.71a, DC 5010. 


A.  Lumbar Spine Disability  

The Veteran's service-connected degenerative joint disease with intervertebral disc syndrome of the lumbar spine is evaluated pursuant to DC 5010-5243, which refers to traumatic arthritis and intervetebral disc syndrome, respectively.  As indicated previously, arthritis is rated based on limitation of motion.  Therefore, such disability is rated under the General Rating Formula for Diseases and Injuries of the Spine.

The General Rating Formula for Diseases and Injuries of the Spine holds that for DCs 5235 to 5243, a rating of 100 percent 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 forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  A 20 percent rating is warranted for lumbar spine disabilities if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by 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 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spine contour; or, vertebral body fracture with loss of 50 percent or more of the height. 

The criteria also include the following provisions: 

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 cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

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

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

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

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

IDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating IDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IDS having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 10 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least one week but less than two weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician.  An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.

Treatment for back pain is shown in service, and after an October 2005 VA examination resulted in an opinion that degenerative changes in the spine were as likely as not related to in-service low back injuries, the October 2005 rating decision granted service connection for degenerative changes of the lumbar spine.  A 10 percent rating was assigned under DC 5010.  This rating was based on October 2005 VA examination lumbar motion finding of 90 degrees of forward flexion and complaints of pain, with the 10 percent rating assigned under DC 5010 due to painful or limited motion of a major joint.  This rating was made effective from March 1, 2005, the date of receipt of the claim for service connection.  

No lumbar extension or lateral motion was possible at the October 2005 VA examination due to instability of the Veteran while on his feet related to complications of his non-service connected diabetes.  Such complications were said at this examination, and demonstrated by other clinical evidence of record, to have rendered the Veteran bound to a wheelchair.  The examination, which included x-rays, revealed no evidence of lordosis or scoliosis. 

A December 2005 private record reflects that the Veteran's lumbar spine revealed mild loss of lumbar lordosis, subjective tenderness to palpation at the lumbosacral junction, voluntary forward flexion to 50 degrees with pain, extension to neutral, and an antalgic gait on the right side.  There was no radicular leg pain.  Sensation was noted to be consistent with diabetic peripheral neuropathy.  Diagnoses included lumbar strain, lumbar spine degenerative disk disease, lumbar stenosis, diabetes, and diabetic peripheral neuropathy.  In February 2006, it was stated that the Veteran had a left lumbar rotator scoliosis and, in March 2006, it was noted that he had mild loss of lumbar lordosis.  March 2006 records also noted diagnoses of lumbar stenosis, lumbar radiculopathy, and lumbar spine degenerative disk disease.  A March 2006 MRI revealed degenerative disc disease without significant herniation or stenosis at L4-5 and L5-S1 levels.  

Reports from a private disability examination conducted in September 2007 showed the Veteran rating his back pain at a level between 8 and 9 nine out of 10 for the prior month and generally being about 6 or 7 out of 10.  He reported trouble with sitting for more than 10 minutes or standing for more than 5 minutes.  The Veteran reported that he could walk comfortably for 50 yards.  The examination of the back was said to reveal pain with a loss of roughly 10 to 15 degrees of motion on all axes.  Pain was said to influence motion and point specific pain was noted near the facets of L4 and L5.  There was pain to palpation in a radiation pattern down to the sciatic notch.  Some muscle guarding and spasm from L4 to L3 of the paraspinals were noted.  Slight spasm was also noted involving the quadratus lumborum bilaterally.  The physician diagnosed degenerative disk disease of the lumbar spine and probable chronic lumbar radiculitis/L5 radiculopathy. 

Thereafter on January 14, 2009, the Veteran was afforded a VA examination of the spine that showed 20 degrees of lumbar flexion and 10 degrees of lumbar extension, right and left lateral flexion, and right and left lateral rotation, which were also the same point at which pain occurred.  The examination revealed no evidence of radiating pain on movement and no muscle spasm or ankylosis.  There was mild tenderness in the midline and a negative straight leg raising test bilaterally.  Functioning of the spine was said to be additionally limited by the following after repetitive use:  fatigue, weakness, lack of endurance, incoordination, and pain.  Pain had the major functional impact.  There was no additional limitation in degree.  The examiner further noted that the Veteran had signs of lumbar intervetebral disc syndrome with findings of no lumbosacral weakness, L4: sensory deficit of the left lateral thigh, and L5: sensory deficit of the left lateral leg.  It was further noted that such did not cause any bowel, bladder, or erectile dysfunction.  The examiner diagnosed lumbar degenerative joint disease with intervertebral disc syndrome of the left sciatic nerve.  It was observed that the subjective factors included back pain while the objective factors included back tenderness, limited range of motion, and decreased left leg sensation. 

Following the January 2009 VA examination, a September 2009 rating decision recharacterized the service connected lumbar disability as "Degenerative Joint Disease with Intervertebral Disc Syndrome, Lumbar Spine," and increased the disability rating to 40 percent effective from January 14, 2009, the date of the examination discussed immediately above.  This rating was based on the fact that less than 30 degrees of lumbar flexion was shown at this examination, thereby warranting a 40 percent rating under the for General Rating Formula for Diseases and Injuries of the Spine as set forth above.  This rating decision also granted service connection for sciatic neuropathy of the left lower extremity, also effective from January 14, 2009, as secondary to the service connected back disability, at a 10 percent rating under 38 C.F.R. § 4.124a, DC 8620.  

Given the action by the RO in the September 2009 rating decision, there is for consideration whether the Veteran is entitled to ratings for his service connected back disability in excess of 10 percent prior to January 14, 2009, and in excess of 40 percent thereafter.  See Fenderson, supra; AB v. Brown, 6 Vet. App. 35, 39 (1993). 

Turning first to whether a higher rating may be assigned for the service-connected back disability for the period prior to January 14, 2009, such a rating would require there to be evidence during this period that this disability resulted in flexion of the thoracolumbar spine being to greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine was no greater than 120 degrees; or that the disability was manifested by 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 higher rating would also be warranted if the Veteran had incapacitating episodes of IDS having a total duration of at least two weeks but less than four weeks during a 12 month period. 

As set forth above, motion in the lumbar spine at the October 2005 VA examination was to 90 degrees, well beyond that required for a 20 percent rating.  As discussed, while extension and lateral motion was not possible at this examination, such was not due to service-connected disability but instead instability while the Veteran was on his feet caused by the non-service connected diabetes; as such, it cannot be said that due to service-connected disability, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees at this examination.  Review of the other clinical evidence for the period at issue, to include the reports from the September 2007 private medical examination, additional private clinical reports in 2005 and 2006, and VA outpatient treatment reports dated prior to January 14, 2009, do not reveal the range of motion findings required for a 20 percent rating.  

As for the other bases for higher rating, the October 2005 VA examination specifically noted that there was no evidence of lordosis or scoliosis.  While muscle spasm and guarding involving the lumbar spine were described at the September 2007 private examination, this was not, as is required for a 20 percent rating, shown to have resulted in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and a review of the evidence for the period prior to January 14, 2009, does not otherwise demonstrate that a 20 percent rating would be warranted for the service-connected lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine during this period.  In this regard, while private treatment records in 2005 and 2006 noted lumbar rotator scoliosis and mild loss of lumbar lordosis, respectively, the October 2005 VA examination failed to reveal evidence of lordosis or scoliosis.  Furthermore, no X-ray or imaging tests were cited in support of such diagnoses.  In this regard, objective diagnostic testing has failed to document such spinal curvatures.  Finally, as there is no evidence that during the period in question that the Veteran had incapacitating episodes of IDS having a total duration of at least two weeks during a 12 month period prior to January 14, 2009, a 20 percent rating under the Formula for Rating IDS Based on Incapacitating Episodes for the period in question may not be assigned.  

A 40 percent rating for the service connected back disability for the period beginning January 14, 2009, would have required limitation of lumbar flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine.  The limitation of lumbar flexion required for a 40 percent rating was not demonstrated by any clinical evidence prior to the January 14, 2009, VA examination range of motion finding of lumbar flexion being limited to 20 degrees, and no evidence during the period in question demonstrated ankylosis.  A 40 percent rating may be assigned for lumbar disability under the Formula for Rating IDS Based on Incapacitating Episodes if there are incapacitating episodes of IDS having a total duration of at least four weeks but less than 6 weeks during a 12 month period, but as such episodes are not demonstrated to this degree during the period in question, a 40 percent rating on the basis of IDS for the period prior to January 14, 2009, may not be assigned.  As such, the criteria for a 40 percent rating for the service connected lumbar disability are also not met for the period prior to January 14, 2009.  

As for whether a rating in excess of 40 percent may be assigned for the service connected back disability for the period from January 14, 2009, such a rating would require unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IDS having a total duration of at least six weeks during a 12 month period.  The January 2009 VA examination showed no, much less unfavorable, ankylosis, and review of the other evidence of record dated from January 14, 2009, to include VA outpatient treatment reports physically of record dated through June 2010 and those in the Virtual File dated through December 21, 2011, does not reflect lumbar ankylosis.  The aforementioned records also do not demonstrate incapacitating episodes of IDS having a total duration of at least six weeks during a 12 month period.  

Pertinent to any associated neurologic impairment, such impairment attributable to service-connected lumbar spine disability is contemplated by the 10 percent rating assigned for sciatic neuropathy of the left lower extremity resulting in no more than mild incomplete paralysis of the sciatic nerve by the September 2009 rating decision, and the propriety of this rating is not currently properly before the Board.  The Board further finds that, while the Veteran has signs of lumbar intervetebral disc syndrome, which resulted in sensory deficits of the left thigh and leg, the VA examiner did not find any impairment with respect to the right lower extremity.  Moreover, he specifically determined that such did not cause any bowel, bladder, or erectile dysfunction.   Furthermore, the Board finds that the Veteran's lumbar spine disability did not result in neurologic impairment prior to January 14, 2009.  In this regard, while the 2005 and 2006 private records reflect a diagnosis of lumbar radiculopathy, they do not contain specific findings in support of such diagnosis.  Moreover, while the September 2007 private treatment record reflects probable chronic lumbar radiculitis/L5 radiculopathy, it was not definitively diagnosed until the January 14, 2009, VA examination.  

With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, supra, the reports from the examinations conducted above document consideration of these principles, and there is no indication that increased compensation would be warranted under these principles.  
   
In short and based on the analysis above, the rating criteria for compensation in excess of 10 percent for degenerative joint disease with intervertebral disc syndrome of the lumbar spine prior to January 14, 2009, or in excess of 40 percent thereafter are not met.  38 C.F.R. § 4.71a, DCs 5010-5243.   

B.  Left Knee Disability 

Under DC 5260, a 10 percent rating is warranted for knee flexion limited to 45 degrees.  A 20 percent rating under DC 5260 requires flexion to be limited to 30 degrees, and a 30 percent evaluation is warranted when flexion is limited to 15 degrees.  Under DC 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees.  A 20 percent rating requires extension to be limited to 15 degrees, and a 30 percent evaluation is warranted when extension is limited to 20 degrees. 

The normal range of motion of the knee is from 140 degrees flexion to 0 degrees extension.  38 C.F.R. § 4.71, Plate II.  In the event of a disability manifesting both limitation of flexion and limitation of extension, VA is to provide two separate ratings under DCs 5260 and 5261.  See VAOPGCPREC 9-04, 69 Fed. Reg. 59990  (2004).

Slight recurrent subluxation or lateral instability of a knee warrants a 10 percent rating under DC 5257.  A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604(1997).  In VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), the VA General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under DC 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero (0) percent rating.

The STRs refect a left knee injury and medical meniscectomy, and service connection for residual disability from this injury was granted by a December 2003 rating decision.  The service connected disability was listed therein as status post medial meniscectomy of the left knee with osteoarthritis and scarring, and a 10 percent rating was assigned under DC 5010.  This rating has been confirmed and continued until the present time.  Pertinent evidence of record at the time of this decision included an October 2003 VA examination that demonstrated 110 degrees of left knee flexion with full extension.  Crepitus and tenderness were shown, but there was no ankylosis, effusion, locking pain, or subluxation in the left knee.  

At an August 2005 VA examination, inspection of the left knee revealed a well-healed, non tender, 15 cm x 1.5 centimeter surgical scar.  The scar was not adherent to the underlying tissue; did not involve any scaling; and was not depressed, elevated, or tender.  Range of motion of the left knee was to 120 degrees of flexion and full extension.  Functioning was not additionally limited by pain, fatigue, weakness, or lack of endurance followed by five repetitions.  There was no ligamentous instability appreciated and no effusion or point tenderness was noted.  

Pertinent evidence thereafter includes a February 2006 MRI that showed marked degenerative changes of the left knee joint with advanced chondromalacia of the patella.  In March 2006, the Veteran reported pain down the left leg, but indicated that he suffered a recent fall in which he hyperflexed his left leg with his prosthesis.  Reports from the previously referenced private disability examination conducted in September 2007 showed the Veteran reporting half the level of pain in his left knee as he described in his back at that time.  He did report that the knee pain increased with activities.  Range of motion testing showed a loss of 30 degrees of knee extension and flexion to 100 degrees.  There was a positive anterior drawer sign and laxity in the left medial collateral ligament lead to a 3+ valgus with McMurray testing.  The apply grind test was positive on the left and the Veteran could produce 5-/5 knee extension.    

At the January 2009 VA examination, motion in the left knee was to 90 degrees of flexion and full extension.  Pain was said to occur at 90 degrees of flexion.  The examination of the left knee showed no signs of edema, effusion, weakness, redness, heat, guarding of movement, or subluxation.  Joint functioning of the left knee was said to additionally be limited by the following after repetitive use:  pain, fatigue, weakness, lack of endurance.  Pain was said to have had the major functional impact.  Repetitive use did not result in incoordination.  Severe instability was shown with anterior and posterior cruciate ligament testing.  The medial and lateral collateral ligament stability test of the left knee was normal as was the medical and lateral meniscus test.  The scarring in the left knee was shown to involve no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, or limitation of motion. 

Following an interview with the Veteran, a review of the record, and a physical examination, the examiner addressed whether any specific impairments that the Veteran has may be attributed to the disability present in the left knee prior to an injury he sustained in 2006.  The examiner noted that the Veteran initially injured his knee playing ball in August 1963 and had surgery with good results.  Subsequently, the Veterans knee pain became worse and degenerative joint disease was diagnosed.  Thereafter, the Veteran fell in 2006 and injured his ligaments.  Thereafter, ligament laxity was noted.  The examiner determined that the impairments that contributed to his injury in 2006 included foot amputations.  Therefore, he opined that the degree of the Veteran's current disability was due in majority to the fall in 2006, which was largely due to instability caused by his double foot amputations.  Consequently, the examiner concluded that the current disability from the Veteran's left knee was most likely caused or a result of his double foot amputations.

Review of the remaining evidence of record, to include the reports of VA and private treatment, largely reflect treatment for unrelated disabilities, and do not otherwise reveal findings that, for rating purposes, are substantially distinct from those shown above.  

The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's left knee disability.  In this regard, flexion was shown by the clinical evidence above be to, at worst, 90 degrees.  Therefore (as indicated, any disability due to traumatic arthritis is to be rated on the basis of limitation of motion under DC 5010), because a rating in excess of 10 percent under DC 5260 requires flexion to be limited to 30 degrees, a rating in excess of 10 percent cannot be assigned under DC 5260.  The VA examinations also showed full extension, and while recognizing that extension described at the September 2007 private examination was not full (a "loss" of 30 degrees of extension was described at that time), the Board finds that the evidence preponderates against a finding that extension in the left knee is limited to 15 degrees.  In this regard, such examination was conducted after the Veteran's 2006 fall in which he hyperflexed his knee and, as such, the Board accords less probative weight to such findings.  Specifically, the VA examinations conducted prior to such fall, in October 2005, and almost three years after the fall, in January 2009, are more probative as they represent the underlying nature of the Veteran's service-connected left knee disability.  Moreover, the January 2009 VA examiner found that the degree of the Veteran's current disability was due in majority to the fall in 2006.  Therefore, a rating in excess of 10 percent for the left knee disability cannot be assigned under DC 5261.  The examination reports also document consideration of the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, supra, and there is no indication that increased compensation would be warranted under these principles.  

The only other remaining DCs pertinent to the knee that would provide for a rating in excess of 10 percent are inapplicable.  In this regard, as the medical records show no findings of ankylosis in the knee, a rating in excess of 10 percent cannot be assigned under DC 5256.  There is also no evidence of dislocated cartilage with frequent episodes of locking, pain and effusion into the joint or malunion or non-union of the tibia or fibula, thereby precluding increased compensation under DCs 5258 or 5262, respectively.  Moreover, while the January 2009 VA examination revealed severe instability in the left knee, the examiner attributed such to a fall caused by his nonservice-connected double foot amputations.  Therefore, as such symptomatology has been specifically excluded from his service-connected left knee disability, the Veteran is not entitled to a separate rating for left knee instability.  

Finally, increased compensation on the basis of scarring in the left knee under any applicable diagnostic code codified at 38 C.F.R. § 4.118 is not warranted given the lack of any pertinent objective findings or functional impairment related thereto.  Esteban v. Brown, 6 Vet. App. 259 (1994).  In this regard, as noted in the findings detailed above, the Veteran's scarring associated with his service-connected left knee disability is asymptomatic and not of a size so as to warrant a separate compensable rating.

In short therefore, the rating criteria for compensation in excess of 10 percent for status post medial meniscectomy of the left knee with ostearthritis and scarring are  not met.  38 C.F.R. § 4.71a, DC 5010.  

C.  Other Considerations  

The Board notes that to the extent it was found above that certain rating criteria were not met for increased compensation for the service connected lumbar and left knee disabilities, entitlement to increased compensation for either disability on the basis of a staged rating has been considered but has not been demonstrated.  See Fenderson, supra; Hart, supra.  

In making its determinations in this case, the Board has also carefully considered the Veteran's contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities.  The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned.  Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disabilities at issue.  As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue.   

In reaching this decision, the Board has considered the holding in Mittleider v. West, 11 Vet. App. 181, 182 (1998), "when it is not possible to separate the effects of the [service-connected condition and [a] non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition."  As applied in this case, the Board has attributed all potentially service-connected symptoms to the Veteran's lumbar spine disability and left knee disability, except where the additional symptoms have been clearly disassociated with such disabilities..  

The Board has also contemplated whether the case should be referred for extra-schedular consideration for either disability at issue.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under  3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected disabilities at issue with the established criteria found in the rating schedule.  The Board finds that the disabilities at issue are fully addressed by the rating criteria under which each such disability is rated.  In this regard, the specific diagnostic criteria adequately address the whole of the Veteran's symptoms referable to his service-connected lumbar and left knee disabilities.  There are no additional symptoms of the service-connected disabilities at issue.  

In this regard, a wide range of signs and symptoms are contemplated in the applicable rating criteria for the Veteran's back and left knee disabilities.  The service-connected disorders require application of the holding in Deluca, supra, and Mitchell, supra, which, in turn, requires consideration of 38 C.F.R. §§ 4.40 and 4.45.  38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy.  Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing.  Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion.  Furthermore, as the Veteran's back disability results in neurologic impairment of the left lower extremity, he has been assigned a separate 10 percent rating for such disability.

Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected disabilities addressed above.  As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating for either of the service-connected disabilities addressed above is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

"Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities."  Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc).  Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not.  Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13).  Stated in other terms, an extraschedular rating may not be assigned for the cumulative impact of the service-connected disabilities herein at issue. 

Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447   (2009) that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  In this case, however, the record does not suggest, and the Veteran does not allege, that his service-connected back and left knee disabilities have rendered him unemployable.  As such, Rice is inapplicable to this case and need not be further addressed.

In sum, Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for degenerative joint disease with intervertebral disc syndrome of the lumbar spine prior to January 14, 2009, and in excess of 40 percent thereafter, and entitlement to a rating in excess of 10 percent for status post medial meniscectomy of the left knee with osteoarthritis and scarring, as such, the benefit 

of the doubt doctrine is not applicable and the claims must be denied.  38 U.S.C.A. 
§ 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  


ORDER

An initial rating in excess of 10 percent for degenerative joint disease with intervertebral disc syndrome of the lumbar spine prior to January 14, 2009, and in excess of 40 percent thereafter is denied. 

A rating in excess of 10 percent for status post medial meniscectomy of the left knee with osteoarthritis and scarring is denied.  



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs