Citation Nr: 1318074	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  09-44 070	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for osteoarthritis of the lumbosacral spine.

2.  Entitlement to a rating in excess of 10 percent for right knee osteoarthritis.

3.  Entitlement to a rating in excess of 10 percent for left knee osteoarthritis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel


INTRODUCTION

The Veteran served on active duty from May 1969 to February 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.


FINDINGS OF FACT

1.  The osteoarthritis of the lumbosacral spine is manifested by full range of motion with objective evidence of pain at the end of each plane of motion except extension.

2.  The right knee osteoarthritis is manifested extension to 0 degrees and flexion to 120 degrees with pain beginning at 110 degrees and ending at 120 degrees, crepitus, mild joint line tenderness, and osteoarthritis confirmed by x-ray evidence.

3.  The left knee osteoarthritis is manifested by extension to 0 degrees and flexion to 120 degrees with pain beginning and ending at 120 degrees, mild joint line tenderness, and osteoarthritis confirmed by x-ray evidence.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for osteoarthritis of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012).

2.  The criteria for a rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2012). 

3.  The criteria for a rating in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.

In this case, the Veteran was provided VCAA notice in a February 2008 letter, advising him of what information and evidence is needed to substantiate his claims for increased ratings, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter included information regarding how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations.  The case was last adjudicated in August 2009.

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 any 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). 

The Board also finds that VA has complied with all assistance provisions of the VCAA.  The evidence of record contains the Veteran's service treatment records, VA outpatient treatment records, private treatment records associated with a worker's compensation claim, VA examination reports and medical opinions, and lay statements from the Veteran.  There is no indication of relevant, outstanding records that would support the Veteran's claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal.

Criteria & Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  Hence, the following analysis in the case is undertaken with the possibility that staged ratings may be appropriate.

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. 

Low Back Disability

The Veteran's osteoarthritis of the lumbosacral spine is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242.  Diagnostic Code 5242 provides that disabilities manifested by degenerative arthritis of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 


General Rating Formula for Diseases and Injuries of the Spine:

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 


Rating
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 Unfavorable ankylosis of the entire spine 
100
Unfavorable ankylosis of the entire thoracolumbar spine 
50
Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 
40
Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 
30
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 
20
Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 
10

Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 
Note: (2) (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.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note: (3) In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 
Note: (4) Round each range of motion measurement to the nearest five degrees. 
Note: (5) For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following:  difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 
Note: (6) Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

38 C.F.R. § 4.71a (2012).

Disc disease disability is ratable under the general rating formula, like arthritis, but may in the alternative be rated under criteria for intervertebral disc syndrome found at Diagnostic Code 5243.  These criteria require that there be incapacitating episodes having a total duration of a least 2 weeks during a 12-month period to warrant higher than a 10 percent rating.  (An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician.  See Note 1 following Diagnostic Code 5243).

Employment and private treatment records dated from June to December 2007 related to a worker's compensation claim reflect that the Veteran dislocated his shoulder in June 2007 and was placed on a temporary modified duty working position that consisted of answering phones, copying, mailing, assembling informational packets, and miscellaneous other duties until he was able to resume regular duties.  The Veteran described his usual occupation during an October 2005 VA examination.  He stated that his work duties included setting up conventions all over the city, requiring prolonged walking and strenuous activity on a daily basis.  He estimated that he walked approximately five miles on a strenuous day, and for one difficult convention set-up he walked approximately ten miles.

In March 2008, the Veteran indicated that he receives treatment at the Orlando VA [Outpatient Clinic (VAOPC)] for his back disability.  The RO obtained VA treatment records dated from August 2006 to May 2008 and associated them with the claims file.

The Veteran was afforded a VA spine examination in March 2008.  He stated that his low back disability had become progressively worse.  He endorsed right leg numbness and paresthesias; decreased motion; stiffness; spasms; and daily, moderate low back pain with radiation into the right leg.  He denied urinary or fecal incontinence, leg or foot weakness, falls or unsteadiness, visual dysfunction or dizziness, fatigue, weakness, flare-ups, or incapacitating episodes in the past 12 months.  He indicated that he could walk one to three miles and did not use devices or aids.  

On examination of the spine, the Veteran had no spasm, atrophy, guarding, tenderness, or weakness.  There were no abnormal spinal curvatures.  Posture was normal, but gait was antalgic.  Motor, sensory, and reflex examination findings were reported as normal, muscle tone was normal, and there was no muscle atrophy.  Range of motion testing of the thoracolumbar spine revealed flexion to 90 degrees with pain on motion beginning and ending at 90 degrees, extension to 30 degrees without pain, right and left lateral flexion to 30 degrees with pain beginning and ending at 30 degrees bilaterally, and right and left lateral rotation to 30 degrees with pain beginning and ending at 30 degrees bilaterally.  Following repetitive use, the Veteran continued to experience pain in all planes of motion except extension; however, there was no loss of range of motion.

The Veteran indicated that he worked full-time in convention set-up and that he had lost less than one week of work in the last 12-month period due to back pain.  The examiner indicated that the Veteran's lumbar spine osteoarthritis had significant effects, including decreased mobility, problems with lifting and carrying, weakness or fatigue, and pain, on the Veteran's usual occupation because he reportedly had been assigned different duties.  The examiner summarized that the current level of severity of the low back disability was mild.

The Board notes that lumbar spine x-rays were not obtained with the current examination.  However, on VA examination in October 2005 x-rays of the lumbosacral spine showed mild to moderate disc height narrowing with osteophytic spurring indicative of osteoarthritis.  The presence of osteoarthritis is not in question.

In April 2008, the Veteran presented for VA treatment for a check-up and lab results.  His chief complaint was itching from a medication.  On examination of his back, pain was elicited with forward flexion and he had tender lumbar paraspinal masses.

The Board has considered the medical and lay evidence of record, but finds that a preponderance of the evidence is against the claim for a rating in excess of 10 percent for a lumbar spine disability.

The lumbar spine disability has been manifested by full range of motion with objective evidence of pain at the end of each plane of motion except extension.  These findings do not warrant a compensable rating because the medical evidence of record does not reflect forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; or any ankylosis.  Although the Board finds that a compensable rating for the lumbar spine disability is not warranted based on the medical evidence, the Board will not disturb the assigned 10 percent rating.

The Board considered whether a higher rating for the lumbar spine disability is warranted based on incapacitating episodes under Diagnostic Code 5243.  However, the medical evidence does not reflect and the Veteran does not contend that he has diagnosed intervertebral disc syndrome of the lumbar spine or prescribed bed rest and treatment by a physician having a total duration of at least one week but less than 2 weeks during the past 12 months, the minimum criteria required for even a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243.  Therefore, a rating in excess of 10 percent is not warranted on the basis of incapacitating episodes and the claim must be denied.

The Board emphasizes that despite the Veteran's subjective complaints of pain with radiation to his right leg, decreased motion, stiffness, numbness, and spasm, the 10 percent rating assigned for the lumbar spine disability appropriately compensates the Veteran for the extent of any functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45, and DeLuca.  In this case, the March 2008 VA examination report reflects that the Veteran was able to accomplish repetitive lumbar spine range-of-motion testing.  His range of motion of his low back, however, was not further limited by pain following repetition; nor was there reported evidence that range of motion was affected by fatigue, weakness, lack of endurance, or incoordination.  There is no objective evidence of radiculopathy due to service-connected back disability to support the Veteran's claims of pain and numbness radiation to the lower extremities.  Therefore, a higher rating would not be assignable for the lumbar spine disability based on any functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination.

Right and Left Knee Disabilities

The Veteran's right and left knee disabilities are each rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  

Diagnostic Code 5010 (traumatic arthritis) directs that the evaluation of arthritis be conducted under 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 2 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 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation.  See 38 C.F.R. § 4,71a, Diagnostic Code 5003.  In addition, the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion.  Id. at Note (1).

For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees.  38 C.F.R. § 4.71, Plate II.  Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. 

Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

A 10 percent rating is warranted for symptomatic removal of the semilunar cartilage.  38 C.F.R. § 4.71a, Diagnostic Code 5259.  A higher rating is not available under this Diagnostic Code.

A July 2007 VA orthopedic clinic note indicates that the Veteran complained of work-related left shoulder pain due to a fall and sustaining a dislocation, which was reduced.  The scheduled reason for the appointment was to schedule a right knee arthroscopy.  On examination, the Veteran walked without a limp and had full range of motion of the right knee with minimal pain.  The impression was right knee medial meniscus tear, and the plan was to delay elective arthroscopy until the left shoulder injury healed.

During a March 2008 VA joints examination, the Veteran stated that he believed a higher rating was warranted for each of his knees because he had continued knee pain.  He denied incapacitating episodes or use of assistive aids needed for walking.  He reported that he could stand for more than one hour, but less than 3 hours and that he was able to walk one to three miles.  He endorsed left knee giving way, bilateral knee pain and stiffness, and right knee effusion.  He denied deformity, instability, weakness, dislocation or subluxation, locking, inflammation, or flare-ups.

On examination, he had an antalgic gait.  Right knee range of motion testing revealed extension to 0 degrees and flexion to 120 degrees with pain beginning at 110 degrees and ending at 120 degrees.  Left knee range of motion testing revealed extension to 0 degrees and flexion to 120 degrees with pain beginning and ending at 120 degrees.  Following repetitive motion, there was no additional loss of motion.  Additional objective findings of the bilateral knees included the following:  no loss of a bone or part of a bone; no joint ankylosis, grinding, instability, patellar abnormality, meniscus abnormality, or other knee abnormality; and both knees were stable to varus/valgus testing.  The right knee had crepitus, mild joint line tenderness, and painful movement; the left knee had mild joint line tenderness and painful movement.  The examiner summarized that the bilateral knee disability was currently of moderate severity, affecting the Veteran's usual occupation due to decreased mobility, problems with lifting and carrying, weakness or fatigue, and pain.

The Board notes that right and left knee x-rays were not obtained with the current examination.  However, on VA examination in October 2005 x-rays of bilateral knees showed osteoarthritis with slight decreased joint space in the medial compartment.  The presence of osteoarthritis is not in question.

During April 2008 VA treatment, the Veteran presented for a check-up and lab results.  His chief complaint was itching from a medication.  On examination of the legs, there was no edema, clubbing or cyanosis.  Another April 2008 VA treatment note reflects that the Veteran was measured, fit, and issued a wrap-around hinge right knee brace the following day.  

The Board has carefully considered the medical and lay evidence of record, but finds that an increased schedular rating in excess of 10 percent is not warranted for either a right knee or left knee disability.

The Veteran's right knee disability has been manifested at worst by extension to 0 degrees and flexion to 120 degrees with pain beginning at 110 degrees and ending at 120 degrees, crepitus, mild joint line tenderness, painful movement, and osteoarthritis confirmed by x-ray evidence.  His left knee disability has been manifested at worst by extension to 0 degrees and flexion to 120 degrees with pain beginning and ending at 120 degrees, mild joint line tenderness, and osteoarthritis confirmed by x-ray evidence.  These findings do not warrant a compensable rating for limitation of flexion under Diagnostic Code 5260 or for limitation of extension under Diagnostic Code 5261 for either knee.   

A higher rating for a right or left knee disability is not warranted under any  other potentially applicable provision because the medical evidence of record does not demonstrate any right or left knee ankylosis; recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; limited flexion; limited extension; or malunion or nonunion of the tibia and fibula.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5262.  

The Board has considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain.  DeLuca, 8 Vet. App. at 206-07.  However, an additional "symbolic" rating for range of motion loss for pain, excess fatigability, decreased functional ability, etc. is not warranted for either knee.  As detailed, the March 2008 VA examiner remarked that decreased mobility, problems with lifting and carrying, weakness or fatigue, and pain affected the Veteran's usual occupation.  His functional impairment due to such symptoms has been considered in assigning the 10 percent disability ratings for each knee.  While acknowledging the effects on his employment in convention set-up as reflected in the VA examination report, there is no basis for a higher rating based on additional functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups.

The Board has considered the assertions by the Veteran pertaining to his knees.  He is competent and credible to attest to the exhibited symptoms in his knees.  However, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his right and left knee disabilities because his subjective reports of knee symptoms such as bilateral stiffness, left knee giving way, and right knee effusion, have not been confirmed by objective medical evidence, and he has denied flare-ups or incapacitating episodes related to his knees.  Accordingly, a rating in excess of 10 percent is not warranted for either the right or left knee disability, and the claims for higher ratings must be denied.

For all the foregoing reasons, the Board finds that the most probative and credible evidence does not support the assignment of a rating in excess of 10 percent for either the right or left knee disability at any point during the course of the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Therefore, entitlement to a higher rating for a right knee disability or a left knee disability is not warranted, and the claims must be denied.

In addition, at no time during this claim has the Veteran had compensable 
limitation of flexion and compensable limitation of extension at the same time, or compensable limitation of motion and objective findings of instability such that separate ratings are warranted under Diagnostic Codes 5260, 5261, or 5257 for either the right or left knee disability.  See VAOPGCPREC 9-98 and 23-97, VAOPGCPREC 9-2004.

Extraschedular Consideration of Spine and Knee Disabilities

The Board has considered whether the Veteran's low back, right knee, or left knee disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's low back and right and left knee disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In addition, while the March 2008 VA examiner indicated that the Veteran's lumbar spine osteoarthritis had significant effects on the Veteran's usual occupation because he reportedly had been assigned different duties, the Board notes that the medical and employment evidence of record reflects that the Veteran, in fact, was temporarily assigned different duties due to a dislocated left shoulder.  Therefore, the March 2008 VA examiner's conclusion regarding the degree to which the Veteran's lumbar spine disability affected his employment appears to be factually inaccurate.  

In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of his back and knee disabilities.  See 38 C.F.R. § 4.16.  In the event that there is anything in the record that implicitly raises a claim of TDIU, review of the overall evidence does not reflect that the Veteran's service-connected back and knee disabilities preclude employment.  The Veteran is currently working, and there is no suggestion in the record that he is unemployable due to his back and knee disabilities.  Thus, entitlement to a TDIU due to his service-connected back and knee disabilities is not warranted.

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims for higher ratings than those assigned, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

A rating in excess of 10 percent for osteoarthritis of the lumbosacral spine is denied.

A rating in excess of 10 percent for right knee osteoarthritis is denied.

A rating in excess of 10 percent for left knee osteoarthritis is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs