Citation Nr: 1316374 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 04-03 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for cervical spondylosis, status post discectomy at C4-5, C5-6 and C6-7 with iliac crest bone graft, prior to November 9, 2010, and in excess of 20 percent, thereafter. 2. Entitlement to a disability rating in excess of 10 percent for left knee condition previously claimed as hypertrophic arthritic changes of the bilateral knees. 3. Entitlement to a disability rating in excess of 10 percent for right knee condition with degenerative joint disease previously claimed as hypertrophic arthritic changes of the bilateral knees. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from July 1956 to July 1960 and from September 1960 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2003 and December 2005 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. This matter was previously before the Board in September 2010 and July 2012 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders with regard to the issues being decided herein, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). During the pendency of this appeal, by rating action dated in December 2011, the RO determined that the Veteran's service-connected cervical spine disability warranted an increased 20 percent disability rating, effective as of November 9, 2010. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of an increased disability rating for cervical spondylosis, status post discectomy at C4-5, C5-6 and C6-7 with iliac crest bone graft, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The left knee disability is manifested, at worst, by flexion limited to 115 degrees and extension to zero degrees. 2. The right knee disability is manifested, at worst, by flexion limited to 120 degrees and extension to zero degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent left knee condition previously claimed as hypertrophic arthritic changes of the bilateral knees, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5260, 5261 (2012). 2. The criteria for a disability rating in excess of 10 percent for right knee condition with degenerative joint disease previously claimed as hypertrophic arthritic changes of the bilateral knees, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in October 2002, May 2003, May 2005, December 2005, June 2006, July 2006, September 2010, March 2011, and July 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating an 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. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Board further observes that this case was previously remanded in order to afford the Veteran a VA examination so as to assess the severity of his disabilities. Thereafter, the Veteran was afforded a VA examination in January 2013. Thus, the Board finds that the agency of original jurisdiction has substantially complied with the 2010 remand directives such that no further action is necessary in this regard. See D'Aries, supra. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2011) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. When rating spine disabilities, the Board must also discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Right and Left Knee Disabilities The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2011) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the Veteran's claims file reveals that following the issuance of the February 1981 rating decision granting service connection and after the July 1994 rating decision continuing a 20 percent disability rating for the bilateral knee disability, there is no evidence received within one year of each which relates to the service-connected knee disabilities. Thus, with respect to the Veteran's claim seeking an increased disability rating, the March 2003 rating action is the proper rating decision on appeal. The Veteran filed his current claim for an increased disability rating in October 2002. At that time, the knee disabilities were characterized as hypertrophic arthritic changes of the bilateral knees and were rated as 20 percent disabling. Pursuant to the Board's July 2012 Remand, by rating action dated in March 2013, the issue was bifurcated and rated as a left knee condition, rated at 10 percent, and a right knee condition, rated at 10 percent. Bifurcation of a claim generally is within the Secretary's discretion. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a claim for a total disability rating based on individual unemployability due to service-connected disabilities to the RO for further adjudication and still decide an increased-ratings claim). The Veteran's left and right knee disabilities are rated as 10 percent disabling under Diagnostic Code 5260-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. This hyphenated diagnostic code is read to indicate that degenerative arthritis is the service-connected disorder, and it is rated as if the residual condition is manifested by limitation of flexion under Diagnostic Code 5260. Degenerative arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis). As noted, Diagnostic Code 5003 states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Diagnostic Code 5260 provides the rating criteria for limitation of flexion of the leg. Under this diagnostic code provision, flexion that is limited to 60 degrees is noncompensable; flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating; and flexion that is limited to 15 degrees warrants a 30 percent disability rating. A 30 percent disability rating is the highest available under Diagnostic Code 5260. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261 provides the rating criteria for limitation of extension of the leg. Under this diagnostic code provision, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. A 50 percent disability rating is the highest available under Diagnostic Code 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Standard range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). Separate ratings may be assigned for a knee disability under Diagnostic Codes 5257 (other impairment of the knee manifested by subluxation and lateral instability) and 5003 (degenerative arthritis) where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 and VAOPGCREC 9-98. Additionally, VA's General Counsel has determined that separate disability ratings may be assigned for limitation of flexion and extension of the same joint. VAOPGCPREC 09-2004 (September 17, 2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. In this case, a VA examination report dated in January 2003 shows that the Veteran reported that his right knee hurt more than the left. There had never been a specific injury. His knees would be symptomatic intermittently, mostly at the anterior portion of the knees. He would have some weakness at times. He had never had surgery. He did not use a brace or assistive device, and did not take any medication for the knees. He was limited with squatting and kneeling. He could run, but only for very short distances because of marked, increased pain. Physical examination of the knees revealed no swelling, effusion, discoloration, increased warmth, or tenderness to palpation. He appeared to have painless range of motion to both knees with full extension at zero degrees and flexion greater than 140 degrees. There was no significant laxity or instability of either knee. The diagnosis was chronic pain and synovitis intermittently of the knees with history of knee arthritis. A VA joint examination report dated in February 2006 shows that the Veteran reported having right knee pain at a constant level of three on a scale of 10, with aching to seven or eight in cold weather or with air conditioning. He stated that if he would squat down, the knee would be weak and he would have difficulty getting back up. The discomfort seemed to be in the front and medial aspect of the right knee. It did not pop, crack, lock, sublux, dislocate, swell, get red, or hot. It did not fatigue or lack endurance. The left knee was said to be not as bad as the right, with an aching level of two with discomfort maybe twice a week for several minutes with cold air or squats. The left knee also felt weak when in a squatting position and he would try to rise. It also did not pop, crack, lock, sublux, dislocate, swell, get red, or hot. It did not fatigue or lack endurance. He would infrequently take a over-the-counter pain medication for discomfort. He had no physical therapy or injections of either knee. Nothing would really makes the knees better, except keeping warm and not squatting. He noted that he retired because he was ready to do so and enjoy his life. His knees would limit him, however, in that he could not go as fast and had to take more frequent breaks as he walked a lot of trails and did a lot of fishing. Physical examination of the knees revealed flexion to 125 degrees and extension to zero degrees, bilaterally. There was no further discomfort or difficulty with range of motion. No abnormal motion and zero to 30 degrees of flexion with valgus or varus stress on the medial and lateral collateral ligaments. Anterior, posterior drawer, and McMurray's tests were negative, bilaterally. There was no crepitus or discomfort with patellar pressure, bilaterally. There were no medial or lateral joint line tenderness, effusion, erythema or popliteal masses or palpable deformities, bilaterally. Distal limitation due to repetitive use or flare-ups could not be determined without resorting to mere speculation. X-rays revealed bilateral osteoarthritic changes without interval change from November 25, 2003; and interval fracture of bone spur along superior margin of the left patella. The diagnosis was bilateral knee arthritis. A VA examination report dated in November 2010 shows that the Veteran reported both his knees had worsened, adding that the right knee had always been slightly worse than the left knee. No surgeries were reported. He described pain, and occasionally feeling as though the right knee was larger than the left, with swelling involved. His pain was said to be daily and constant; more of an ache. He reported being prescribed a single prong cane, but was not using it. He added that every now and then it felt as though his right knee was not there. Any type of cold or rainy weather would cause him to have an increase of pain in both knees. Also, having the air conditioning on or lying in cold sheets would cause an increase in pain. Physical examination revealed 125 degrees of flexion and zero degrees of extension. Range of motion was potentially baseline for individual based on bilateral active range of motion and no report of pain during examination. The bilateral knees medial and latera1 collateral ligaments were normal. Anterior and posterior cruciate ligaments were normal. McMurray's and grind tests were negative. There was no bilateral knee instability noted. No other painful motion was noted. There was no deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, incoordination, instability or pertinent abnormal weightbearing, except as noted. There was no loss of function with repetitive use, except as noted. Loss of function, due to flare-ups, could not be determined without resorting to mere speculation. X-rays of the knees revealed hypertrophic degenerative joint disease with narrowing of the medial joint space. The diagnosis was bilateral knees degenerative joint disease with hypertrophic arthritic changes. The examiner added that the bilateral knee degenerative joint disease with hypertrophic arthritic changes had no evidence of ankylosis, subluxation, lateral instability, locking or effusion into the joints. There was no evidence of weakened movement including against variant resistance. There was no excess fatigability with use, incoordination, painful motion, pain with use. In correspondence to the agency of original jurisdiction dated in March 2011, the Veteran indicated that in January 2011, his left knee had locked, causing him to fall. He described that the knee remained extremely painful for several weeks. He added that as a result, he was prescribed a cane for ambulation, and was taking frequent pain medication. He described that his left knee pain was at a constant seven or eight out of 10, with flairs to 10, requiring him to stop any activity. A VA outpatient treatment record dated in February 2010 shows that the Veteran reported that his left knee had given out on him three weeks earlier, and that he continued to experience pain in the knee and calf. VA outpatient treatment records show continued intermittent treatment for knee pain. A VA examination report dated in January 2013 shows that the Veteran reported that his left and right knee symptoms were getting progressively worse. He had had a steroid injection in November 2012 with temporary relief. He described his current symptoms as constant bilateral medial knee pain and clicking. There were flare-ups about every two to three months. The duration of the flare-ups would depend on when he would have an injection. Cold exposure was said to be a precipitating or aggravating factors, with steroid injection being an alleviating factors. There was no functional limitations on standing. He was told not to walk more than three or four miles per day. He would use a single prong cane on occasion. Range of motion of the left knee was from zero degrees of extension to 115 degrees of flexion. Range of motion of the right knee was from zero degrees of extension to 120 degrees of flexion. There was no objective evidence of painful motion. There was no additional limitation in range of motion of the knees and lower legs following repetitive-use testing. Functional loss was said to be limited to less movement than normal. Anterior, posterior, and medial-lateral instability testing was normal. There was no subluxation or dislocation. There was no genu recurvatum. There was no history of a meniscal condition or surgery. There was no history of joint replacement. The diagnosis was bilateral knee hypertrophic arthritic changes of the knees; with residual limitation of motion but no functional limitation. The examiner reiterated that on examination of both knees, there was no increased warmth. There was tenderness of the medial compartment, greatest on the left knee. There was no crepitus with the knee throughout his range of motions. The knees were stable to an anterior and posterior drawer test. There was mild patellofemoral crepitus and mild increase in anterior knee pain with patellofemoral compression. The knee was stable to varus and valgus stress at zero and 130 degrees. The McMurray sign was negative. There was no tenderness over the quadriceps or the patellar tendon. There were no signs of any bursitis. There were no popliteal masses or tenderness. The thigh and the calf were soft and nontender. The skin and sensation were intact. Based on the evidence of record, as detailed in pertinent part above, the Board finds that an increased disability rating due to limitation of motion of the left or right knee is not warranted. The VA examinations referenced above demonstrated, at worst, 115 degrees of flexion in the left knee and 120 degrees of flexion in the right knee, without pain demonstrated on range of motion studies. Such findings warrant a noncompensable disability rating under Diagnostic Code 5260 for each knee. The left and right knees exhibited zero degrees of extension on all examinations, warranting a noncompensable disability rating under Diagnostic Code 5261. Moreover, range of motion did not diminish on any examination with repetition. The Veteran's left and right knee disabilities are noncompensable under Diagnostic Codes 5260 and 5261, as range of motion is well beyond required flexion limited to 60 degrees and extension limited to 5 degrees, even when considering any DeLuca factors. See 38 C.F.R. § 4.7 ; see also 38 C.F.R. §§ 4.40 , 4.45, 4.59 as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a , Diagnostic Codes 5260 and 5261. As such, an increased 20 percent disability rating is not warranted in either knee unless there is X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the evidence does not show that the Veteran's arthritis of the left and right knees results in any incapacitating exacerbations. Therefore, a disability rating in excess of 10 percent for left and right knee arthritis is not warranted. The Veteran does not meet the criteria for the assignment of separate disability ratings for limitation of flexion or extension in either knee under VAOPGCPREC 09-2004, VAOPGCPREC 23-97, or VAOPGCREC 9-98. Additionally, a higher disability rating would be available for ankylosis at a favorable angle in full extension, or in slight flexion between zero and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. However, there is no indication that the Veteran had ankylosis of either knee, therefore, a higher disability rating under Diagnostic Code 5256 is not warranted. In considering the applicability of other diagnostic codes, the Board notes that Diagnostic Code 5258 provides the rating criteria for dislocation of semilunar cartilage and Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage. Under Diagnostic Code 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. In this regard, the Board finds that a separate rating would not be warranted under Diagnostic Code 5258 because the medical evidence of record does not show that there is dislocation of the semilunar cartilage. Under Diagnostic Code 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Here, the Board finds that a separate rating would not be warranted because the medical evidence of record does not show that the Veteran has experienced symptomatic removal of the semilunar cartilage. The Board also finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Board has considered the potential relevance of Diagnostic Code 5257 which provides a 10 percent disability rating where there is slight recurrent subluxation or lateral instability of the knee. A 20 percent disability rating is warranted where the recurrent subluxation or lateral instability of the knee is moderate. The maximum 30 percent disability rating is warranted where there is severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Separate ratings may be assigned for a knee disability under Diagnostic Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 and VAOPGCREC 9-98. In this regard, the Board acknowledges that the evidence shows that Veteran reported that his left knee locked in January 2011. This was reiterated in February 2011 VA outpatient treatment records. While there appears to have been a single episode of the left knee locking, the evidence of record does not show that the Veteran experiences recurrent symptoms of subluxation or lateral instability. All VA examinations referenced above specifically found that there was no evidence of recurrent subluxation or instability. As such, the assignment of a separate disability rating for instability of the left knee would not be appropriate under the criteria of Diagnostic Code 5257. The Board has considered the statements of the Veteran as to the extent of his current symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the objective findings, which have been largely consistent throughout the rating period on appeal, are found to outweigh the subjective reports in this case. The objective findings are based on specific testing done by qualified examiners. The Board has considered whether staged ratings are appropriate under Hart, but as the Veteran's symptoms have remained relatively constant throughout the course of the period on appeal, staged ratings are not warranted. For the foregoing reasons, the Board finds that the preponderance of the evidence is against an increased disability rating for the Veteran's left and right knee disabilities. Extra-schedular Consideration Finally, the Board finds that the Veteran's left and right knee disabilities do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's left and right knee disabilities is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER A disability rating in excess of 10 percent for left knee condition, previously claimed as hypertrophic arthritic changes of the bilateral knees, is denied. A disability rating in excess of 10 percent for right knee condition with degenerative joint disease, previously claimed as hypertrophic arthritic changes of the bilateral knees, is denied. REMAND After carefully considering this matter, and for reasons expressed immediately below, the issue of an increased disability rating for cervical spondylosis, status post discectomy at C4-5, C5-6 and C6-7 with iliac crest bone graft, must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. This matter was remanded in July 2012, in part, so that the Veteran could be afforded an updated VA cervical spine examination. The Veteran underwent a VA spine examination in August 2012. Unfortunately, the Board finds that the results of this examination are inadequate as they are inconsistent. In one place in the examination report, the VA examiner indicates that the Veteran had hypoactive deep tendon reflexes. Later in the examination report, it is indicated that the left fourth and fifth fingers abduction was weak secondary to left ulnar nerve condition unrelated to the cervical spine. The examiner, however, did not explain the source of the left ulnar nerve condition. Elsewhere in the examination report, the examiner reports that there was no objective evidence of radiculopathy. As it is unclear whether the Veteran's service-connected cervical spine disability results in radiculopathy or other neurological manifestations that caused hypoactive deep tendon reflexes, the Board finds that an additional examination of the Veteran is required. Moreover, in evaluating the Veteran's related surgical scars in January 2013, the VA examiner indicates that pictures of the scars are attached to the report. A review of the claims file does not show that any such pictures have been associated with the examination report. As such, on remand, an effort must be made to obtain the pictures referenced in the examination report. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his cervical spine disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain ongoing medical treatment records pertaining to the Veteran's cervical spine disability. All records obtained should be associated with the Veteran's claims file. 2. The RO/AMC shall endeavor to obtain the pictures of the cervical scars of the Veteran referenced in the January 2013 VA examination report and have them associated with the claims file. 3. The RO/AMC shall afford the Veteran a VA examination to ascertain the severity of his service-connected cervical spine disability. The claims file, including any relevant records in Virtual VA, should be made available to and reviewed by the examiner. All indicated tests shall be performed and all findings reported. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must also estimate the additional loss of function, expressed in degrees of motion, during such flare-ups, to the extent possible. The VA examiner must comment on how and to what extent these manifestations affect the Veteran. If the severity of these manifestations cannot be quantified, the examiner must so indicate and fully explains the reasons therefor. The examiner is also directed to specifically comment on the following: (a) Whether there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's cervical spine. (c) Whether the Veteran has intervertebral disc syndrome of the cervical spine, and if so, identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within the last 12-month period. The examiner must also identify any associated neurological deformities associated with the service-connected cervical spine disorder, to include any radiculopathy or neuropathy of the extremities, and any associated bladder or bowel impairment. The severity of each neurological sign and symptom must be reported, if such exists, as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. The examiner must address the extent of any surgical scars in the affected area. The examiner shall describe the manifestations of any residual scarring in accordance with pertinent rating criteria for evaluation of the condition. The examiner should also provide a measurement of the length and width of the scars as well as the areas of the scars in terms of square inches. The examiner should indicate whether any such scars are elevated or depressed on palpation; adherent to the underlying tissue; hyper- or hypo-pigmented; manifested by abnormal skin texture; indurated or inflexible; or result in loss of underlying soft tissue. The examiner should specify whether any scars are superficial, unstable, and painful on examination. The examiner should indicate whether the scars cause limitation of motion, and if so, should specify the degree of limitation. Un-retouched color photographs of each residual scar should be taken and associated with the claims file. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disabilities, if any, on the his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 5. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs