Citation Nr: 1317489 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 07-17 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a higher rating for a left ankle strain, currently rated as 10 percent disabling. 2. Entitlement to a higher rating for degenerative joint disease (DJD) of the left knee previously tendonitis, postoperative (P/O), currently rated as 40 percent disabling. 3. Entitlement to a higher rating for degenerative joint disease (DJD) of the right knee previously tendonitis, postoperative (P/O), currently rated as 10 percent disabling. 4. Entitlement to a higher rating for degenerative joint disease (DJD) of the right knee with limited extension, currently rated as 40 percent disabling. 5. Entitlement to a higher rating for cervical spine degenerative disc disease (DDD) and degenerative joint disease (DJD), currently rated as 20 percent disabling. 6. Entitlement to service connection for residuals of tympanic membrane perforation. 7. Entitlement to service connection for sinusitis. 8. Entitlement to service connection for hemorrhoids. 9. Entitlement to service connection for skin tags. 10. Entitlement to service connection for false positive human immunodeficiency virus (HIV) test. 11. Entitlement to service connection for prostatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from October 1970 to August 1992. This matter came to the Board of Veterans' Appeals (Board) from February 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in August 2011 for further development. A review of the record shows that the RO has complied with all remand instructions by affording the Veteran a VA orthopedic examination and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). In the February 2006 rating decision, the RO granted service connection for left ankle strain (and assigned a noncompensable rating, effective March 2005); left knee tendonitis, p/o (and assigned a noncompensable rating, effective March 2005); right knee tendonitis, p/o (and assigned a noncompensable rating, effective March 2005); DDD and DJD, cervical spine (and assigned a noncompensable rating, effective March 2005). The Veteran appealed the initial disability ratings assigned. In the January 2009 rating decision, the RO granted an increased rating for left ankle strain (10 percent effective December 2008); left knee DJD (previously tendonitis) to 10 percent (effective August 2008); DJD of the right knee (previously tendonitis) to 10 percent (effective August 2008); and DJD of the cervical spine to 10 percent (effective December 2008). By rating decision in September 2012, the RO granted increased ratings of 40 percent, for DJD left knee, effective November 2011; and 20 percent, effective November 2011 for DDD and DJD, cervical spine. Although increased ratings have been granted, the issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). By rating decision in September 2012, the RO granted a separate rating of 40 percent, effective November 2011, for DJD right knee with limited extension. This issue is reflected on the first page of the decision. FINDINGS OF FACT 1. Prior to December 15, 2008, the Veteran's service-connected left ankle strain was manifested by full range of motion. 2. From December 15, 2008, to November 15, 2011, the Veteran's service-connected left ankle strain is manifested by moderate limitation of motion. 3. From November 15, 2011, the Veteran's service-connected left ankle strain is manifested by marked limitation of motion. 4. Prior to August 7, 2008, the Veteran's service-connected DJD of the left knee previously tendonitis P/O was productive of no limitation of motion, even when additional functional loss due to pain, weakness, fatigue, and incoordination is considered; there was no recurrent subluxation or lateral instability. 5. From August 7, 2008 to November 15, 2011, the Veteran's service-connected DJD of the left knee previously tendonitis P/O was productive of pain with some limitation of motion, but flexion was not limited to 30 degrees or less, extension was not limited to 15 degrees or more, even when additional functional loss due to pain, weakness, fatigue, and incoordination was considered, including during flare-ups; there was no recurrent subluxation or lateral instability. 6. From November 15, 2011, the Veteran's service-connected DJD of the left knee previously tendonitis P/O is productive of pain with some limitation of motion, but extension is not limited to 45 degrees, even when additional functional loss due to pain, weakness, fatigue, and incoordination is considered; there is no recurrent subluxation or lateral instability. 7. Prior to August 7, 2008, the Veteran's service-connected DJD of the right knee previously tendonitis P/O was productive of pain with no limitation of motion, even when additional functional loss due to pain, weakness, fatigue, and incoordination was considered, including during flare-ups; there was no recurrent subluxation or lateral instability. 8. From August 7, 2008, the Veteran's service-connected DJD of the right knee previously tendonitis P/O is productive of pain with some limitation of motion, but flexion is not limited to 30 degrees or less, extension is not limited to 15 degrees or more, even when additional functional loss due to pain, weakness, fatigue, and incoordination is considered, including during flare-ups; there is no recurrent subluxation or lateral instability. 9. From November 15, 2011, the Veteran's service-connected DJD of the right knee with limited extension has not been manifested by extension limited to 45 degrees. 10. Prior to December 15, 2008, the Veteran's service-connected cervical spine DDD and DJD was not manifested by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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; or incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 11. From December 15, 2008 to November 15, 2011, the Veteran's service-connected cervical spine DDD and DJD was not manifested by forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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; or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 12. From November 15, 2011, the Veteran's service-connected cervical spine DDD and DJD is not manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 13. On April 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that withdrawal of the appeals of entitlement to service connection for residuals of tympanic membrane perforation, sinusitis, hemorrhoids, skin tags, false positive HIV test and prostatitis is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation to a compensable rating for the Veteran's service-connected left ankle strain, prior to December 15, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5271 (2008). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected left ankle strain, from December 15, 2008, to November 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5271 (2012). 3. The criteria for entitlement to a 20 percent disability evaluation for the Veteran's service-connected left ankle strain from November 15, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5271 (2012). 4. The criteria for entitlement to a disability evaluation to a compensable rating for the Veteran's service-connected DJD of the left knee, prior to August 7, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5010, 5024, 5260 (2008). 5. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected DJD of the left knee, from August 7, 2008 to November 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5010-5260 (2011). 6. The criteria for entitlement to a disability evaluation in excess of 40 percent for the Veteran's service-connected DJD of the left knee previously tendonitis P/O, from November 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5010-5260 (2012). 7. The criteria for entitlement to a compensable evaluation for the Veteran's service-connected DJD right knee, previously tendonitis, P/O, prior to August 7, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5010, 5024, 5260 (2008). 8. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected DJD right knee, previously tendonitis, P/O, from August 7, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5010-5260 (2012). 9. The criteria for entitlement to a disability evaluation in excess of 40 percent for the Veteran's service-connected DJD of the right knee with limited extension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Code 5261 (2012). 10. The criteria for entitlement to a compensable evaluation for the Veteran's service-connected DDD and DJD, cervical spine, prior to December 15, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5242-5243 (2008). 11. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected DDD and DJD, cervical spine, from December 15, 2008 to November 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5242-5243 (2011). 12. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected DDD and DJD, cervical spine from November 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5242-5243 (2012). 13. The criteria for withdrawal of an appeal by the appellant by his authorized representative for the issues of entitlement to service connection for residuals of tympanic membrane perforation, sinusitis, hemorrhoids, skin tags, false positive HIV test and prostatitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in June 2005. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with additional notice in March 2006 and July 2008, subsequent to the initial adjudication. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the March 2006 and July 2008 notices were was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an April 2007 statement of the case and in August 2007, March 2009, August 2009, September 2010 and September 2012 supplemental statements of the case, following the provision of notice in March 2006 and July 2008. Since the issues in this case (entitlement to assignment of higher initial ratings) are downstream issues from that of service connection (for which VCAA letters were duly sent in March 2006 and July 2008), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained private and VA treatment records, reviewed Virtual VA files assisted the Veteran in obtaining evidence, afforded the Veteran VA examinations (April 2005, December 2008 and November 2011) and obtained a February 2012 addendum opinion. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Increased Ratings The present appeal involves the Veteran's claims that the severity of his service-connected left ankle strain, DJD of the left knee, DJD of the right knee, DJD right knee extension and cervical spine DDD and DJD warrant higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. I. Left Ankle Strain The Veteran's service-connected left ankle strain has been rated by the RO under the provisions of Diagnostic Code 5271. Under this regulatory provision, a rating of 10 percent is warranted for moderate limited motion of the ankle. A maximum rating of 20 percent is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board notes at this point that normal dorsiflexion of the ankle is to 20 degrees, and normal plantar flexion of the ankle is to 45 degrees. 38 C.F.R. § 4.71, Plate II. When the Veteran was afforded a VA examination in April 2005, range of motion was full. Dorsiflexion was to 20 degrees and plantar flexion was to 45 degrees. Range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance of incoordination after repetitive use. When the Veteran was afforded another VA examination in December 15, 2008, he complained of pain and occasional swelling. He wore an ACE bandage that helped. His left ankle disability interfered with his daily activity along with standing, walking and sitting for long periods of time. There were no additional limitations with flare-ups. The VA examination noted that x-rays were completely normal. Upon physical examination, there were no deformities and swelling. It was tender laterally. There was 0 to 10 degrees of dorsiflexion with pain laterally. There was 0 to 30 degrees of plantar flexion with pains laterally. Active range of motion did not produce fatigue or incoordination. There was no additional loss of range of motion with repetitive movement three times. The VA examiner diagnosed left ankle sprain, usually with pain in cold weather or with walking 100 yards. The Veteran was afforded another VA examination in November 2011. Left ankle plantar flexion was to 5 degrees with objective evidence of painful motion at 0 degrees. Left ankle plantar dorsiflexion was to 10 degrees with evidence of painful motion at 0 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test plantar flexion ended at 5 degrees and dorsiflexion at 10 degrees. There was no additional limitation in range of motion of the ankle following repetitive-use testing. There was functional loss and/or function impairment. The contributing factors were less movement than normal, weakened movement, and pain on movement. There was localized tenderness/pain on palpation of joints/soft tissue. There was no laxity, ankylosis, shin splints, stress fractures, Achilles tendonitis, Achilles tendon ruptures, malunion of calcaneus (os calcis) or talus (astragalus) or talectomy (astragalectomy). The Veteran occasionally used braces. Prior to December 15, 2008, the Veteran's left ankle had full range of motion. There was no evidence that limitation of motion of the ankle was moderately or markedly limited to warrant a higher rating under Diagnostic Code 5271. Turning to other applicable codes, there was no evidence of analysis to warrant a higher rating under Diagnostic Codes 5270 and 5272. There was also no malunion of os calcis or astragalus to warrant a higher rating under Diagnostic Code 5273. There was also no evidence of astragalectomy to warrant a higher rating under Diagnostic Code 5274. From December 15, 2008, to November 15, 2011, range of motion was not markedly limited to warrant the maximum rating of 20 percent. While limited, there was range of motion, and the Veteran wore an ACE bandage and occasionally used braces, which indicates to the Board that he did not have to heavily rely on assistive devices. Prior to December 15, 2008, there is no evidence of ankle pain. However, the Board acknowledges that from December 15, 2008, the Veteran reported ankle pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. Nevertheless, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating of 20 percent from December 15, 2008. However, the November 15, 2011, VA examination showed limitation of plantar flexion to 5 degrees. As noted earlier, normal plantar flexion is to 45 degrees. In other words, the Veteran now has only slightly more than 10 percent of normal plantar flexion. The Board believes this warrants a finding of marked limitation rather than moderate limitation. As such, a 20 percent rating is warranted from November 15, 2011. II. DJD of Knees With regard to the knee issues, the Board notes at this point that normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5024, tenosynovitis is rated on limitation of motion of affected parts, as degenerative arthritis, except gout. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5256 for ankylosis of the knee, a rating of 30 percent is warranted for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A rating of 40 percent is warranted for ankylosis of the knee in flexion between 10 degrees and 20 degrees. A rating of 50 percent is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees. A maximum rating of 60 percent is warranted for ankylosis of the knee extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5257, a rating of 10 percent is warranted when there is slight recurrent subluxation or lateral instability; a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability of the knee; and a 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a 20 percent disability rating is available for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A maximum rating of 30 percent is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A rating of 30 percent is warranted for extension limited to 20 degrees. A rating of 40 percent is warranted for extension limited to 30 degrees. A rating of 50 percent is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent disability rating is available under Diagnostic Code 5262 when there is malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted when there is malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted when there is malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted when there is malunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a maximum rating of 10 percent is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). 38 C.F.R. § 4.71a, Diagnostic Code 5263. Additionally, the Board notes that Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated based upon limitation of motion of the affected part, like degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Further, the Board notes that separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. The opinions of the VA's General Counsel appear to require persuasive evidence that a claimant actually suffers from the symptomatology set forth in the different rating codes before separate ratings may be assigned. When the Veteran was afforded a VA examination in April 2005, range of motion was from 0 to 140 degrees. After repetitive use, range of motion was not limited by pain, fatigue, weakness, lack of endurance or incoordination. An August 7, 2008 treatment record from Dr. Chong Liu, M.D. shows that the Veteran had aching pain that was aggravated by exertion. He found no relief with medication. He complained of swelling. Dr. Liu noted full range of motion, but also noted that the Veteran experienced discomfort. When the Veteran was afforded a VA examination in December 15, 2008, he complained of constant knee pain the experienced every day. He described the pain as an ache that was occasionally sharp. He had to keep moving and keep active. Pain increased with standing, walking and sitting for long periods of time. Using stairs also aggravated his knees. He reported that they occasionally swelled. He took Tramadol as needed, and Meloxicam added, which helped some. He did not use an assistive device. His knee disability interferes with daily activities with walking and standing. He had no additional limitations with flare-ups. Upon physical examination, it was noted that there were no deformities and swelling. He was tender throughout. There was no laxity or instability present. McMurray's and Lachman's tests were negative. It was noted that he lacked five to 10 degrees full extension on the left knee. Flexion was from 0 to 80 degrees with pain medially and laterally. Right knee showed full extension with pain for the right knee. Range of motion was from 0 to 100 degrees with pains anteriorly, medially and laterally. There was no laxity and instability. Active range of motion did not produce any fatigue or incoordination bilaterally. There was no additional loss of range of motion with repetitive movement three times bilaterally. The VA examiner diagnosed bilateral knees DJD, confirmed by x-rays. When the Veteran was afforded another VA examination in November 15, 2011, he reported difficulty walking due to "clicking" and "locking" with the right greater than the left. He did not report flare-ups that impact the function of the knee. Right knee flexion was to 90 degrees with painful motion beginning at 30 degrees. He was unable to fully extend at 30 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Left knee range of motion showed flexion ended at 90 degrees and that extension ended at 30 degrees. There was functional loss and functional impairment of the knee after repetitive use. The contributing factors were less moment than normal, weakened movement, excess fatigability, pain on movement and interference with sittings tending and weight-bearing. Knee flexion strength was at 3/5 (active movement against gravity). Anterior and posterior instability tests were normal. Medial-lateral instability showed 1+ bilaterally. There was no evidence/history of recurrent patellar subluxation/dislocation. The Veteran occasionally used a brace. Degenerative/traumatic arthritis was documented in imagining studies. There was no x-ray evidence of patellar subluxation. Regarding compensable evaluations for both knees prior to August 7, 2008, the Board notes that a higher rating is not warranted. Here, there was normal range of motion. Thus, Diagnostic Code 5261 for limitation of extension is not for application. Additionally, there was no ankylosis, subluxation/instability, dislocated semilunar cartilage, impairment of the tibia and fibula, and genu recuvatum, to warrant higher ratings under Diagnostic Codes 5256, 5257, 5258, 5262 and 5263, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5262 and 5263. Regarding DJD of the left knee, from August 7, 2008 to November 15, 2011, a rating in excess of 10 percent is not warranted. Flexion was not limited to 30 degrees. Here, flexion was no less than 80 degrees. Thus, a higher rating is not warranted under Diagnostic Code 5260. Extension was no more than 10 degrees, and thus a higher rating under Diagnostic Code 5261 is not warranted. With no evidence of ankylosis, a higher rating under Diagnostic Code 5256 is not warranted. Also the highest available rating for Diagnostic Codes 5259 and 5263 is 10 percent; and as a result, these Diagnostic Codes are not for application. There was also no evidence of recurrent subluxation or lateral instability to allow for separate ratings under Diagnostic Code 5257. There was also no dislocated semilunar cartilage to allow for a higher rating under Diagnostic Code 5258. There was also no evidence of impairment of the tibia and fibula to warrant a higher rating under Diagnostic Code 5262. Regarding entitlement to a disability evaluation for left knee disability from November 15, 2011, a higher rating is not warranted under 5261 since extension was no more than 30 degrees. Also, there was no ankylosis of the knee, so a higher rating under Diagnostic Code 5256 is not warranted. The highest available rating for Diagnostic Codes 5259 and 5263 is 10 percent; for Diagnostic Code 5258 is 20 percent, for Diagnostic Codes 5257 and 5260 is 30 percent; and for Diagnostic Code 5262 is 40 percent. Regarding a disability evaluation in excess of 10 percent, from August 7, 2008, for the Veteran's DJD of the right knee, the Board notes that flexion is no less than 80 degrees. Thus, a higher rating under Diagnostic Code 5260 is not warranted since flexion is not limited to 30 degrees. The Board notes that a separate rating for limited extension from November 2011 is discussed below. Diagnostic Codes 5259 and 5263 do not provide for disability ratings in excess of 10 percent. In turning to the Diagnostic Codes applicable to the knees which do provide for disability ratings in excess of 10 percent, the Board notes that a 30 percent disability rating under Diagnostic Code 5256 would not be warranted in this case because the pertinent medical evidence shows no ankylosis of the knee. Here, there was range of motion of the knee. Further, there is no evidence of impairment of the tibia and fibula to warrant higher ratings under Diagnostic Code 5262. Also, there is no evidence of dislocated semilunar cartilage to warrant a 20 percent rating under Diagnostic Code 5258. While the Board acknowledges the November 2011 VA examination report that shows a 1+ result for medial-lateral instability, there is no indication that it is recurrent. Additionally, previous VA examination reports and private treatment records do not show any instability. Thus, it appears to the Board that based on a review of the Veteran's claims file, the instability is not recurrent in nature. Thus, a separate compensable rating is not warranted. Regarding a separate disability evaluation in excess of 40 percent for limited extension in the right knee, from November 2011, a maximum rating of 50 percent is not warranted. Here, extension is no more than 30 degrees, which under Diagnostic Code 5261 warrants a 40 percent rating. The Board concludes that the preponderance of the evidence is against entitlement to increased ratings. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Should the severity of the knees increase in the future, the Veteran may always file claims for increased ratings. III. Cervical Spine DDD & DJD The general rating formula provides for disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine, 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. Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 rating is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is awarded for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003); and 5243 Intervertebral disc syndrome Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks warrants a 10 percent evaluation. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks warrants a 20 percent evaluation. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent evaluation. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of this case, the Board notes that under Diagnostic Code 5003 for degenerative arthritis, ratings are based on the limitation of motion of the affected joint or joints. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5010 states that traumatic arthritis should be rated like degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When the Veteran was afforded a VA examination in April 2005, range of motion for flexion and extension was from 0 to 45 degrees. Bilateral lateral rotation was to 45 degrees, and bilateral rotation was to 80 degrees. Overall, there was full range of motion. Reflexes bilaterally were 1+. There was no pain, lack of endurance, fatigue, weakness or incoordination of the cervical spine. An August 2008 private treatment record from Dr. Liu notes normal range of motion. When the Veteran was afforded a VA examination in December 15, 2008, he complained of constant knee pain that was usually sharp and stabbing. He took Aleve and Meloxicam, which helped some. It interfered with his daily activities, especially with increased reading or computer work. He had no incapacitating episodes in the past year. He denied any urinary/fecal incontinence. Upon physical examination, it was noted that cervical flexion was from 0 to 35 degrees with pains in the lower cervical spine. Extension was from 0 to 25 degrees with pains in the lower cervical spine. Bilateral lateral flexion was from 0 to 30 degrees with pains in the lower cervical spine. Bilateral lateral rotation was from 0 to 60 degrees with pains in the lower cervical spine. Active range of motion did not produce fatigue or incoordination. There was no additional loss of range of motion with repetitive movement times three. There was no muscle atrophy and no muscle spasm. He had normal strength. The VA examiner diagnosed DJD of the cervical spine with chronic neck pain. The Veteran was afforded another VA examination in November 15, 2011. He reported neck pain that increased with activity. He reported no flare-ups that impacted the function of the cervical spine. Flexion was to 30 degrees with objective evidence of painful motion at 0 degrees. Extension ended at 0 degrees with objective evidence of painful motion beginning there. Right lateral flexion was to 20 degrees with objective evidence of painful motion at 0 degrees. Left lateral flexion was to 25 degree with objective evidence of painful motion at 0 degrees. Right lateral rotation was to 40 degrees and left lateral rotation was to 30 degrees with objective evidence of painful motion at 0 degrees bilaterally. The Veteran was able to perform repetitive-use testing after a minimum of three repetitions. Post-test flexion was to 30 degrees with objective evidence of painful motion at 0 degrees. Post-test right lateral flexion was to 20 degrees, post-test left lateral flexion was to 25 degrees. Post-test right lateral rotation was to 40 degrees, and post-test lateral rotation was to 30 degrees. There was no additional limitation in range of motion of the cervical pain following repetitive-use testing. There was functional loss and/or functional impairment of the cervical spine. The contributing factors were less movement than normal, weakened movement, excess fatigability, and pain on movement. Guarding/muscle spasms was present, but this did not result in abnormal gait or spinal contour. There was no radiculopathy, or other neurologic abnormalities. There were no incapacitating episodes. He used a memory foam mattress and pillow. Imaging studies show no arthritis or vertebral fracture. However, there was documentation of DDD of the cervical spine. Prior to December 15, 2008, a compensable rating is not warranted. There was normal range of motion of the cervical spine. Forward flexion of the cervical spine was greater than 40 degrees and the combined range of motion was greater than 335 degrees. There was no evidence of muscle spasm, guarding or tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Thus, a compensable rating was not warranted under Diagnostic Code 5242 is not warranted. From December 15, 2008 to November 15, 2011, a rating in excess of 10 percent is not warranted. Here, there was no evidence of forward flexion of the cervical spine not greater than 30 degrees. Flexion was to 35 degrees. Additionally, combined range of motion of the cervical spine was greater than 170 degrees. Also, as noted in the December 15, 2008 VA examination report, there was no muscle spasm. There was also no evidence of guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. From November 15, 2011, a higher rating in excess of 20 percent is not warranted. There is no evidence of forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine to warrant the next higher rating of 30 percent. Here, forward flexion was to 30 degrees. Ratings of 40 percent and above are not warranted since there was no ankylosis. The Veteran had range of motion in his cervical spine. Further, in each of the staged ratings, the evidence does not show incapacitating episodes of intervertebral disc disease to warrant higher ratings under Diagnostic Code 5243. As noted on VA examinations in December 2008 and November 2011, there were no incapacitating episodes. There is also no evidence of record of any current neurologic abnormalities to warrant separate ratings under another diagnostic code pursuant to Note (1) of the general rating formula for disease and injuries of the spine. The Board acknowledged that the Veteran has chronic neck pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a compensable rating (prior to December 15, 2008), a rating in excess of 10 percent (from December 15, 2008 to November 15, 2011), and a rating in excess of 20 percent (from November 15, 2011). The Board concludes that the preponderance of the evidence is against entitlement to an increased rating for DDD and DJD cervical spine. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Should the severity of the cervical spine increase in the future, the Veteran may always file a claim for an increased rating. Extraschedular Evaluation In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Dismissal of Remaining Issues As for the remaining claims, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In substantive appeal received in June 2007, the Veteran indicated by marking the appropriate box that he read the statement of the case and any supplemental statement of the case, and was only appealing issues that he listed. In a handwritten notation, the Veteran directed the RO review the attachment and stated "items noted in text for those items I am not appealing". A review of the attachment shows that he included sinusitis, hemorrhoids, skin tags, false positive HIV test and prostatitis on a list; and stated than he had concurred with the VA determinations and provided various reasons depending on the issue. By statement received in January 2011, the Veteran was specific when withdrawing other issues. To be sure, a letter was sent to the Veteran for clarification as to whether he had also withdrawn entitlement to service connection for residuals of tympanic membrane perforation, sinusitis, hemorrhoids, skin tags, false positive HIV test and prostatitis. In response, the Veteran's representative stated in April 2013 that the Veteran has also withdrawn appeals specifically for entitlement to service connection for residuals of tympanic membrane perforation, sinusitis, hemorrhoids, skin tags, false positive HIV test and prostatitis. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these specific issues. Accordingly, the Board does not have jurisdiction to review the aforementioned appeals, and they are dismissed. ORDER Entitlement to service connection for residuals of tympanic membrane perforation has been withdrawn. Entitlement to service connection for sinusitis has been withdrawn. Entitlement to service connection for hemorrhoids has been withdrawn. Entitlement to service connection for skin tags has been withdrawn. Entitlement to service connection for false positive HIV test has been withdrawn. Entitlement to service connection for prostatitis has been withdrawn. To this extent, the appeal is dismissed. Entitlement to a 20 percent evaluation for service-connected left ankle strain from November 15, 2011, is warranted. To this extent, the appeal is granted, subject to laws and regulations governing payment of VA monetary benefits. The remainder of the appeal is denied as follows: Entitlement to a compensable rating for left ankle strain, prior to December 15, 2008, is not warranted. Entitlement to a disability evaluation in excess of 10 percent for left ankle strain, from December 15, 2008, to November 15, 2011, is not warranted. Entitlement to a compensable rating for DJD of the left knee prior to August 7, 2008, is not warranted. Entitlement to a disability evaluation in excess of 10 percent DJD of the left knee, from August 7, 2008 to November 15, 2011, is not warranted. Entitlement to a disability evaluation in excess of 40 percent for DJD of the left knee, from November 15, 2011, is not warranted. Entitlement to a compensable evaluation for DJD right knee, previously tendonitis, P/O, prior to August 7, 2008, is not warranted. Entitlement to a disability evaluation in excess of 10 percent for DJD right knee, previously tendonitis, P/O, from August 7, 2008, is not warranted. Entitlement to a disability evaluation in excess of 40 percent for DJD of the right knee with limited extension is not warranted. Entitlement to a compensable evaluation for DDD and DJD, cervical spine, prior to December 15, 2008, is not warranted. Entitlement to a disability evaluation in excess of 10 percent for DDD and DJD, cervical spine, from December 15, 2008, to November 15, 2011, is not warranted. Entitlement to a disability evaluation in excess of 20 percent for DDD and DJD, cervical spine from November 15, 2011, is not warranted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs