Citation Nr: 1315913 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-31 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for a lumbar strain, status post lumbar surgery (formerly rated as intervertebral disc syndrome) in excess of 20 percent from June 13, 2008 to February 8, 2010, and in excess of 40 percent from February 8, 2010. 2. Entitlement to a separate compensable rating for a neurological disability of lower extremities (to include radiculopathy) as due to service-connected lumbar spine disability. 3. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from March 1976 to May 1988. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, denied an increased rating in excess of 20 percent for a lumbar strain, status post lumbar surgery (formerly rated as intervertebral disc syndrome) and denied an increased rating in excess of 10 percent for degenerative joint disease of the left knee. In a subsequent March 2010 rating decision, the RO granted an increased 40 percent evaluation for lumbar strain status post lumbar surgery (formerly rated as intervertebral disc syndrome) effective February 8, 2010, thus creating a staged rating. The Board finds that, although the RO granted a higher rating for service-connected low back disability from February 8, 2010, a veteran is presumed to seek the maximum available benefit for a disability. Accordingly, the appeal for an increased disability rating for a low back disability remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2013, the Veteran testified at a Board video hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Virtual VA electronic claims file. FINDINGS OF FACT 1. For the rating period from June 13, 2008 to December 22, 2009, the Veteran's lumbar back disability was manifested by tenderness and moderate spasms, with limitation of forward flexion to 60 degrees, limited at that point by moderate pain. 2. For the rating period from June 13, 2008 to December 22, 2009, the Veteran's low back disability was not manifested by limitation of forward flexion of the thoracolumbar spine more nearly approximating 30 degrees or less due to pain; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks during any 12-month period. 3. For the rating period from December 22, 2009, the low back disability was manifested by forward flexion of the thoracolumbar spine at 30 degrees, limited by pain at 30 degrees. 4. For the rating period from December 22, 2009, the Veteran's low back disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least six weeks during any 12-month period. 5. The medical evidence reflects clinical findings of mild left lower extremity radiculopathy. 6. The medical evidence reflects clinical findings of mild right lower extremity radiculopathy. 7. Throughout the rating period on appeal, degenerative joint disease of the left knee has been manifested by flexion limited to, at worst, 60 degrees with pain, and extension limited to, at worst, 10 degrees after repetition with pain; without instability of the left knee joint. CONCLUSIONS OF LAW 1. For the rating period from June 13, 2008 to December 22, 2009, the criteria for an increased disability rating in excess of 20 percent for a lumbar strain, status post lumbar surgery (formerly rated as intervertebral disc syndrome), have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). 2. Resolving reasonable doubt in the Veteran's favor, for the rating period from December 22, 2009 to February 8 2010, the criteria for an increased rating of 40 percent for a lumbar strain, status post lumbar surgery (formerly rated as intervertebral disc syndrome) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for a rating in excess of 40 percent from December 22, 2009 for a lumbar strain, status post lumbar surgery (formerly rated as intervertebral disc syndrome) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent rating for radiculopathy of the left lower extremity are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520 (2012). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent rating for radiculopathy of the right lower extremity are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for an increased rating in excess of 10 percent for degenerative joint disease of the left knee have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans 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, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to 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. Cir. 2009). In this case, a VCAA notice letter sent in July 2008 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. The RO provided the Veteran with VA examinations to assist in determining the extent of the Veteran's lumbar spine and knee disabilities. See August 2008 (lumbar spine and knee examinations), March 2010 (lumbar spine examination), and March 2012 (knee examination). As the examination reports were written after an interview with the Veteran, a review of the claims file, a physical examination of the Veteran (including range of motion testing), and contained specific findings indicating the nature of the Veteran's lumbar spine and left knee disabilities, the VA examinations are adequate for VA purposes, and there is no duty to provide an additional examination or medical opinion for this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, statements from the Veteran, private treatment records, and VA treatment records. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 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 portrays 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. §§ 4.40, 4.45. See DeLuca, 8 Vet. App. 202. With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Increased Rating for Lumbar Spine Disability The Veteran initially filed his claim for an increased lumbar spine evaluation in excess of 20 percent on June 13, 2008. A September 2008 rating decision continued the 20 percent disability rating for lumbar strain, post lumbar surgery. The Veteran filed a timely notice of disagreement with the September 2008 rating decision in August 2009. Thereafter, on February 8, 2010, the Veteran submitted a December 22, 2009 MRI report from Dr. O.B to the RO. The RO construed the Veteran's February 8, 2010 submission (the December 22, 2009 MRI report) as a new claim for an increased rating; however, the Board finds that the Veteran's December 22, 2009 MRI report was not a new claim, but instead, new and material evidence received prior to the expiration of the appeal period. Accordingly, the December 22, 2009 MRI report will be considered as having been filed in connection with the June 2008 claim which was pending at the beginning of the appeal period. See Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed. Cir. 2011). Further, the Board finds that it was factually ascertainable that a 40 percent disability rating for the Veteran's lumbar spine disability had manifested prior to February 8, 2010, specifically, on December 22, 2009, the date of the MRI report. Generally, the assignment of effective dates is governed by 38 U.S.C.A. § 5110, which states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400 (2012). For the reasons discussed in detail below, the Board finds that an increased rating of 20 percent for a lumbar strain status post lumbar surgery (formerly rated as intervertebral disc syndrome) is not warranted from June 12, 2008 to December 22, 2009. Resolving reasonable doubt in the Veteran's favor, the Board further finds that an evaluation of 40 percent, but no higher, for lumbar strain status post lumbar surgery (formerly rated as intervertebral disc syndrome) is warranted from December 22, 2009. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for 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 spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a. Diagnostic Code 5243 (effective September 26, 2003) provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2012). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for Intervertebral Disc Syndrome (IVDS) with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings 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) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated 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. An examination was conducted by VA in August 2008. At that time, the Veteran stated that he experienced moderate to severe constant back pain and denied pain radiation to his lower extremities. The Veteran reported that he used a lumbosacral brace and a cane; however, the VA examiner noted that the Veteran had not presented with the brace or cane at the time of the VA examination. The Veteran reported difficulty with prolonged sitting, standing, bending, walking for more than one hour, and lifting more than 20 pounds. On examination, range of motion testing revealed flexion from 0 to 70 degrees, with pain at 60 to 70 degrees. Extension was from 0 to 20 degrees, with pain at 10 to 20 degrees. Lateral flexion, right and left, was 0 to 20 degrees, with pain at 10 to 20 degrees. With repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. The Veteran denied any flare-ups in regards to his lumbar spine condition. The VA examiner diagnosed the Veteran with lumbar strain, status post residuals of lumbar surgery, with lumbar strain moderately acute at the time of the examination with range of motion abnormality. Functional impairment was noted to relate to the Veteran's occupation as a postal worker and also to his daily activities, including: prolonged sitting, standing, and lifting more than 20 pounds. In February 2010, the Veteran submitted a lumbar spine MRI report from Dr. O.B. dated December 22, 2009. Upon reviewing the results of the MRI, the Dr. O.B. reported the following findings: post-operative change laminectomy defect with pseudo like meningocele at L4-L5; anterior spurring at L3-L4 and L4-L5; and disc desiccation and height loss most prominent at L4-L5. In a February 2010 VA treatment note, the VA doctor reviewed the February 2010 MRI report and diagnosed the Veteran with chronic low back and radicular pain associated with degenerative joint disease and arachnoiditis after spine fusion. The Veteran was afforded another VA spine examination in March 2010. The VA examiner reviewed the February 2010 MRI report and VA treatment records. Upon examination, range of motion showed flexion from 0 to 30 degrees with pain at 30 degrees; extension from 0 to 10 degrees with pain at 10 degrees, lateral flexion (left and right) from 0 to 20 degrees with pain at 20 degrees; and left and right rotation from 0 to 30 degrees with pain at 30 degrees. Objective evidence on deep palpation showed spasm and tenderness in the lumbar sacral area. Range of motion measurements were limited by pain, fatigue, weakness and lack of endurance. The VA examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine with radiculopathy. Functional impairments included restricted standing (no more than one half-hour), restricted walking (no more than two blocks), and restricted lifting (no more than 15 pounds). After a review of all the evidence, lay and medical, the Board finds that an increased rating in excess of 20 percent for a lumbar strain status post lumbar surgery (formerly rated as intervertebral disc syndrome) from June 13, 2008 to December 22, 2009 is not warranted. Even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the lumbar spine disability more nearly approximates the criteria for a higher disability rating of 40 percent. Such factors that may additionally limit motion and function were considered and assessed by the August 2008 VA examiner. On examination in August 2008, the range of motion of the spine showed flexion from 0 to 70 degrees, with pain at 60 to 70 degrees. Extension from 0 to 20 degrees, with pain at 10 to 20 degrees. Lateral flexion, right and left, from 0 to 20 degrees, with pain at 10 to 20 degrees. With repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. The Veteran denied any flare-ups in regards to his lumbar spine condition. For these reasons, the Board finds that, from June 13, 2008 to December 22, 2009, the service-connected lumbar spine disability more nearly approximates the criteria for a 20 percent rating based upon the range of motion of the lumbar spine. The Board further finds that, from June 13, 2008 to December 22, 2009, the Veteran's service-connected lumbar spine disability has not more nearly approximated the criteria for a higher disability rating of 40 percent. Specifically, the Board finds that the evidence of record does not demonstrate forward flexion of the lumbar spine to 30 degrees or less. Further, there are no objective findings of ankylosis of the thoracolumbar spine and the Veteran's reports of limitation of motion and function do not reflect reports of ankylosis of the thoracolumbar spine. The Board finds that the evidence of record also does not demonstrate that the Veteran has sustained any incapacitating episodes during a 12-month period. See August 2008 VA examination. Thus, the criteria for a rating in excess of 20 percent for the service-connected lumbar spine disability from June 13, 2008 to December 22, 2009 have not been met. Lumbar Spine Rating from December 22, 2009 The Board finds that, resolving reasonable doubt in the Veteran's favor, a 40 percent rating, but no higher, is warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243 for the period beginning December 22, 2009. The December 22, 2009 MRI report from Dr. O.B. shows post-operative change of the laminectomy defect with pseudo like meningocele at L4-L5, anterior spurring at L3-L4 and L4-L5, and disc desiccation and height loss at L4-L5. The Board acknowledges that the December 22, 2009 MRI results did not provide range of motion testing of the Veteran's lumbar spine; however, the MRI results did show degenerative changes in the lumbar spine. Further, VA treatment notes and the March 2010 VA examiner reviewed the MRI report and concurred with its findings. Notably, the March 2010 VA examination was afforded to the Veteran, in large part, because of the MRI findings which showed degenerative changes of the lumbar spine. Taking into consideration the December 22, 2009 MRI results, the March 2010 VA examiner found range of motion of the lumbar spine with flexion at 0 to 30 degrees with pain at 30 degrees; extension at 0 to 10 degrees with pain at 10 degrees, lateral flexion (left and right) at 0 to 20 degrees with pain at 20 degrees; and left and right rotation at 0 to 30 degrees with pain at 30 degrees. The VA examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine with radiculopathy. The Veteran also reported that his back pain had been worsening for over four years. See Veteran's statement in March 2010 VA examination; see also March 2013 Hearing Transcript at pg. 3-4. For these reasons, upon review of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that it was first factually ascertainable that a 40 percent disability rating for the Veteran's lumbar spine disability had manifested on December 22, 2009. See 38 C.F.R. § 3.400. The Board next finds that a higher evaluation for lumbar spine disability in excess of 40 percent from December 22, 2009 is not warranted, as the requirements of unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome of at least six weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In this regard, the RO rated the Veteran's low back disability under Diagnostic Code 5243 (intervertebral disc syndrome). See March 2010 rating decision. Disabilities evaluated under this code are evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, the medical evidence of record is absent of any showing of ankylosis, both favorable and unfavorable, of the thoracolumbar spine. In reaching its finding that the evidence did not show unfavorable ankylosis of the entire thoracolumbar spine for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 40 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. Here, the Board notes the objective evidence of pain on range-of-motion testing at the March 2010 VA examination, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the March 2010 VA examiner noted objective evidence of pain on active range-of-motion testing, and that flexion was limited to 30 degrees after repetition secondary to pain; thus, even if the pain on flexion is taken into consideration, the range-of-motion measurements still do not meet the criteria for the next higher rating category. Indeed, the flexion measurement of 30 degrees recorded at the March 2010 VA examination prior to repetition does not meet the minimum criteria for a 50 percent rating, which requires unfavorable ankylosis of the entire thoracolumbar spine. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (unfavorable ankylosis of the entire thoracolumbar spine) such as to enable a finding that the disability picture more nearly approximates the next-higher, 50 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. Further, although the Veteran stated during the March 2010 VA examination that he had experienced incapacitating episodes during the past 12 months requiring physician-ordered bed rest, the medical evidence of record, including VA outpatient treatment records and the March 2013 hearing testimony, does not support this contention. Accordingly, the Board finds the Veteran's statements, regarding incapacitating episodes requiring physician-ordered bed rest, inconsistent with the other medical evidence of record, and therefore, not credible. For these reasons, the Board finds that from December 22, 2009, the weight of the evidence is against a finding of an evaluation in excess of 40 percent for degenerative changes of the lumbar spine. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Separate Rating for Neurological Manifestations The Board has also considered whether a separate evaluation for neurological disability is warranted. As instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, associated objective neurological abnormalities should be rated separately under an appropriate Diagnostic Code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Following a review of the claims file, the Board finds that separate ratings of 10 percent for radiculopathy of each lower extremity is warranted. The Board finds that the Veteran's radiculopathy disability is most properly rated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8520 for impairment of the sciatic nerve. The evidence of record shows that during the March 2010 VA examination, the Veteran reported that he experienced numbness and tingling in both his legs and stated that it was worse in his left leg than the right. The March 2010 VA examiner stated that it was more likely than not that degenerative joint disease of the lumbar spine with radiculopathy was related to his original service-connected intervertebral disc syndrome. A VA treatment note from Dr. Tessler in the VA neurology clinic reported that the Veteran had radiculopathy associated with degenerative joint disease of the lumbar spine. During the March 2013 hearing, the Veteran testified that he has pain radiating in his buttocks which affects his ability to sit and drive for long periods of time. As such, while the August 2008 VA examination report reflected no neurological deficit at that time, the Board finds the record reflects the Veteran has a current diagnosis of radiculopathy during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board further finds that the Veteran's neurological abnormality warrants a 10 percent rating for each lower extremity. The Board finds that neurological findings described above show no more than a mild manifestation of radiculopathy. As such, the Board finds that a separate 10 percent evaluation for mild radiculopathy of the bilateral lower extremities is warranted. Left Knee Degenerative Joint Disease Disability Rating The Veteran is in receipt of a 10 percent rating for service-connected degenerative joint disease of the left knee for the entire rating period on appeal, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran contends that since June 2008 his left knee disability has worsened. Specifically, the Veteran reported increased left knee pain and difficulty with daily activities. See March 2013 Hearing Transcript at pg. 3-4 and the Veteran's June 2008 statement. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely be rated 60 percent disabling. 38 C.F.R. § 4.71a. In an August 2008 VA examination, the Veteran had complaints of left knee pain. The VA examiner reported that the Veteran walked with a mild antalgic gait, but did not require the use of a cane, or other assistive devices. Upon range of motion testing, flexion was to 60 degrees with pain. Extension was to 10 degrees. Upon repetitive use, there was no additional loss of range of motion due to pain, fatigue, weakness, or incoordination. The August 2008 did not report instability of the left knee and diagnosed the Veteran with a left knee strain. In a March 2012 VA examination, the VA examiner diagnosed the Veteran with degenerative joint disease of the left knee. During the interview, the Veteran reported pain in the left knee and difficulty with daily activities. Upon physical examination, the VA examiner noted that the Veteran was wearing a knee brace. There was no warmth, erythema, or effusion. Some tenderness to palpation over the medial aspect of the joint was present. The VA examiner stated that there was no instability of the left knee and the McMurray test (used to evaluate tears in the meniscus of the knee) was negative. Strength was normal. Range of motion testing revealed movement from 0 to 90 degrees out of a normal 0 to 140 degrees. After repetitive movement, range of motion decreased five degrees to 85 degrees. Although the VA examiner did not provide specific readings for flexion and extension, the Board has interpreted the range of motion reading (0 to 90 degrees out of a normal 0 to 140 degrees) as flexion to 90 degrees (flexion was to 85 degrees upon repetitive movement) and extension to 0 degrees. The Board further finds that the March 2012 range of motion readings were relatively consistent with the readings in the August 2008 VA examination. Accordingly, the Board finds that the March 2012 VA examination is adequate and highly probative. During the March 2013 Board hearing, the Veteran testified that walking, standing, and other activities of daily life have become more difficult due to his left knee pain. The Veteran also stated that his left knee gives out occasionally and buckling. See Hearing Transcript at pg. 4 and pg. 23. In a statement dated August 2009, the Veteran stated that he had instability of the left knee. After reviewing the lay and medical evidence relevant to the rating period on appeal, the Board finds that the weight of the evidence is against a grant of a rating in excess of 10 percent for left knee degenerative joint disease for the entire increased rating period on appeal, including no separate disability rating based on claimed instability of the left knee. The Board finds that, throughout the appeal period, even with such considerations of additional limitation of motion or function, (see DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59), the Veteran's left knee degenerative joint disease has been manifested by flexion limited to, at worst, 60 degrees after repetition and extension limited to, at worst, 10 degrees after repetition. The Board finds that the evidence of record does not demonstrate additional disability as a result of weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. In addition, the Veteran had tenderness and pain, but no instability of the left knee joint. See March 2012 VA examination; see also Dorland's Illustrated Medical Dictionary 944 (32nd ed. 2012) ("functional instability" defined as inability of a joint to maintain support during use). The Board finds that specific clinical findings in the March 2012 VA examination, showing no instability of the left knee, are more probative than general assertions of instability of the knee or of the knee giving out. As such, a separate rating on the basis of other impairment of the left knee, including recurrent subluxation or lateral instability, is not warranted. The Board has also considered whether any other diagnostic code would allow for an increased rating in excess of 10 percent for the Veteran's left knee disability. Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. Although the Veteran reported some episodes of "buckling" of the left knee during the March 2013 hearing, the medical evidence (including negative findings on the McMurray test) revealed no showing of dislocation of the left meniscus in this case, therefore, this code does not apply. Diagnostic Code 5259 addresses removal of symptomatic semilunar cartilage, but there is no indication that the Veteran has undergone such a procedure; thus, Diagnostic Code 5259 does not apply. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. Diagnostic Code 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., Diagnostic Codes 5260 and 5261), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. As the left knee arthritis is already rated 10 percent disabling, and a 10 percent rating is the maximum rating provided for arthritis of a major joint under Diagnostic Code 5003, a rating in excess of 10 percent is not possible under Diagnostic Code 5003. The Board has also considered whether any separate ratings are available based on the evidence. In so doing, the Board acknowledges VAOPGCPREC 9-2004, where it was held that a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. Diagnostic Code 5260 contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 15, 30, 45, and 60 degrees, disability ratings of 30, 20, 10 and 0 percent, respectively, are assigned. 38 C.F.R. § 4.71a. Here, the Veteran's knee flexion was to 60 degrees in the August 2008 VA examination and to 90 degrees in the March 2012 VA examination. Therefore, the criteria for a compensable disability rating under Diagnostic Code 5260 (limitation of flexion to 45 degrees) have not been met or more nearly approximated. The lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support an increased rating in excess of 10 percent under Diagnostic Code 5260 for arthritis of the left knee for any period. 38 C.F.R. § 4.71a. Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 45, 30, 20, 15, 10, and 5 degrees, disability ratings of 0, 10, 20, 30, 40, and 50 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had extension to no worse than 10 degrees throughout the rating period on appeal. The August 2008 and March 2012 VA examiners both noted objective evidence of pain on active range of motion and following repetitive motion; however, the VA examiners also noted that there were no additional limitations after three repetitions of range of motion. Thus, even if pain is taken into account, there is no credible evidence of record demonstrating extension limited to 10 degrees or less. As the criteria for a 20 percent disability rating under Diagnostic Code 5261 (limitation of extension to 15 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support an increased rating in excess of 10 percent under Diagnostic Code 5261 for arthritis of the left knee for any period. 38 C.F.R. § 4.71a. Finally, in considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as there is no evidence of knee ankylosis. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. There is no evidence the Veteran has undergone a knee replacement, so Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. For these reasons, the Board finds that the weight of the evidence is against a grant of a rating in excess of 10 percent for left knee degenerative joint disease for the entire increased rating period on appeal. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for the Veteran's spine and knee disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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). 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's spine and knee disabilities are specifically contemplated by the schedular rating criteria (Diagnostic Code 5243 and Diagnostic Code 5260, 38 C.F.R. § 4.71a), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Code 5243 specifically provide for disability ratings based on a combination of history, symptoms, and clinical findings. The schedular rating criteria specifically provide for ratings based on limitation of motion, including due to pain and other orthopedic factors, such as fatigability, which are part of the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's spine and knee disabilities have been manifested by pain, an abnormal gait, and limitation of motion of the spine to, at worst, to 30 degrees of forward flexion, and limitation of motion of the left knee, at worst, to 60 degrees (flexion) and to 10 degrees (extension). The schedular rating criteria specifically allows for different ratings based on the severity of the limitations of motion of the spine and knee. Further, bilateral radiculopathy of the lower extremities has also been contemplated by the assignment of separate 10 percent disability ratings granted herein. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the functional limitation (lifting, standing, walking) and the effect on his daily life. In the absence of exceptional factors associated with the Veteran's low back and left knee disorders, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, entitlement to total disability rating based upon individual unemployability (TDIU) is potentially an element of all increased rating claims if raised by the veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the record is negative for evidence that the Veteran is unemployable and the Veteran has not claimed a TDIU. Rather, the record explicitly indicates the Veteran remains gainfully employed at the post office; therefore, remand or referral of a claim for TDIU is not necessary. ORDER An increased rating in excess of 20 percent for a lumbar strain, status post lumbar surgery (formerly rated as intervertebral disc syndrome) from June 13, 2008 to December 21, 2009 is denied; an increased rating of 40 percent, but no higher, from December 22, 2009 to February 8, 2010 is granted; and a rating in excess of 40 percent from December 22, 2009 is denied. A separate 10 percent rating for right lower extremity radiculopathy is granted. A separate 10 percent rating for left lower extremity radiculopathy is granted. An increased rating in excess of 10 percent for degenerative joint disease of the left knee is denied. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs