Citation Nr: 1318222 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-17 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating (evaluation) in excess of 40 percent for thoracolumbar degenerative disc disease. 2. Entitlement to an increased rating for service-connected left patellar recurrent subluxation, in excess of 10 percent prior to October 13, 2009, and in excess of 20 percent therafter. 3. Entitlement to an increased rating for service-connected right patellar recurrent subluxation, in excess of 10 percent prior to October 13, 2009, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active duty service from September 2000 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A Board videoconference hearing in this matter was scheduled in February 2012. The Veteran failed to appear for the hearing. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2012). FINDINGS OF FACT 1. Throughout the appeal period, thoracolumbar degenerative disc disease L4-5 and L5-S1 have not manifested unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. 2. Prior to October 13, 2009, left patellar recurrent subluxation was manifested by no more than slight recurrent subluxation. 3. From October 13, 2009, left patellar recurrent subluxation has been manifested by no more than moderate recurrent subluxation. 4. Prior to October 13, 2009, right patellar recurrent subluxation was manifested by no more than slight recurrent subluxation. 5. From October 13, 2009, right patellar subluxation was manifested by no more than moderate recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for thoracolumbar degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). 2. For the period prior to October 13, 2009, the criteria for a rating in excess of 10 percent for left patellar recurrent subluxation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.71a, Diagnostic Code (DC) 5257 (2012). 3. For the period from October 13, 2009, the criteria for a rating in excess of 20 percent for left patellar recurrent subluxation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.71a, Diagnostic Code (DC) 5257 (2012). 4. For the period prior to October 13, 2009, the criteria for a rating in excess of 10 percent for right patellar recurrent subluxation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.71a, Diagnostic Code (DC) 5257 (2012). 5. For the period from October 13, 2009, the criteria for a rating in excess of 20 percent for right patellar recurrent subluxation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.71a, Diagnostic Code (DC) 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The information about increased ratings required by Vazquez-Flores was provided in a May 2008 letter. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's statements. The Veteran was afforded VA examinations in June 2008, October 2009, and October 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations considered all the pertinent evidence of record, including the Veteran's statements and the claims file. The VA examiners provided findings regarding the severity of subluxation of the Veteran's knees and provided range of motion findings for the lumbar spine and addressed the criteria indicated in 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA examiners also provided an opinion regarding whether there are objective neurological abnormalities associated with thoracolumbar degenerative disc disease. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Ratings - Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (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 was filed until the final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. The Board has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Increased Rating for Lumbar Spine Disability A January 2005 rating decision granted service connection for lumbar spine degenerative disc disease at L4-5 and L5-S1. A 40 percent rating was assigned from February 2004. A claim for an increased rating was received in May 2008. The Veteran asserts that his back pain has increased, including daily flare-ups, and that he has decreased mobility of his back. He reported some leg numbness when sitting in an atypical position. He wrote that he had missed work due to both back and knee disabilities. Lumbar spine degenerative disc disease at L4-5 and L5-S1 is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria that provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). After a review of all of the evidence, lay and medical, the Board finds that the criteria for a rating in excess of 40 percent are not more nearly approximated for any period. For a 50 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. A 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes requires evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. The evidence of record does not show such symptoms or functional impairment of ankylosis of the entire thoracolumbar spine or incapacitating episodes of at least six weeks during a 12-month period, as required for a higher disability rating. 38 C.F.R. § 4.71a. Upon VA examination in June 2008, the Veteran reported that his back pain was worse. The Veteran denied lower extremity weakness and pain. The Veteran reported that, rarely, sitting in an atypical position could cause numbness down the left leg. Motor, sensory, and reflex examinations were all normal. The VA examiner measured thoracolumbar flexion from 0 to 45 degrees and lateral flexion of 30 degrees to the right and left. The June 2008 VA examiner diagnosed thoracolumbar degenerative disc disease. The VA examiner indicated that there was no additional loss of motion on repetitive use. The VA examiner indicated that there were 14 incapacitating episodes in the prior 12 months, but the Veteran had not missed work. A VA outpatient treatment record dated in August 2009 reflects that the Veteran reported chronic low back pain. The Veteran reported that his back pain was always there and varied in intensity. He reported that he had a lot of stiffness in his back. A VA physician assessed polyarticular joint pain involving the lumbar spine and right sacroiliac joint. Upon VA examination in October 2009, the Veteran reported that his back symptoms included constant pain and stiffness. Motor, sensory, and reflex examinations were normal. The VA examiner measured flexion to 30 degrees and lateral flexion of 15 degrees to the left and 15 degrees to the right. The VA examiner diagnosed thoracolumbar degenerative disc disease. The VA examiner indicated that there was objective evidence of pain following repetitive motion. The VA examiner indicated that, due to pain, the Veteran could not be tested for additional loss of motion on repetitive use. The Veteran denied incapacitating episodes. The Veteran reported that he had lost two weeks from work in the past 12 months. VA rheumatology treatment notes dated in July 2010 reported low back pain. A physician increased his methotrexate. A VA rheumatology note dated in September 2010 reflects that the Veteran reported that he had less pain in his back but still had stiffness. Upon VA examination in October 2011, the Veteran reported worsening lower back pain. He reported that he was diagnosed with psoriatic arthritis and had some improvement of his back with Embrel. The Veteran reported daily flare-ups impacting the function of the thoracolumbar spine. Reflex and sensory examinations were normal. The VA examiner indicated that the Veteran did not have signs or symptoms of radiculopathy. The Veteran had forward flexion to 35 degrees with painful motion starting at 0 degrees. He had right lateral flexion to 30 degrees, with pain from 0 to 30 degrees and left lateral flexion to 30 degrees, with pain from 0 to 30 degrees. The VA examiner indicated that there was no additional decrease in range of motion with repetitive movement times three. The VA examiner indicated that there had not been incapacitating episodes of intervertebral disc syndrome in the past year. The evidence of record reflects the Veteran's reports of increased low back pain, but does not demonstrate ankylosis of the entire thoracolumbar spine or incapacitating episodes of at least six weeks for any 12 month period. The evidence reflects general assertions of worsened symptomatology since the 40 percent rating was assigned, but does not indicate ankylosis of the thoracolumbar spine is present or that increased pain causes limitation of motion approximating ankylosis of the entire thoracolumbar spine, or causes incapacitating episodes. The presence of pain, even radiating pain, is already considered a part of the schedular rating criteria for a 40 percent rating. The Veteran's report of pain, stiffness, and decreased mobility are consistent with the VA examination findings of forward flexion of 35 degrees, but does not reflect ankylosis of the thoracolumbar spine. "Ankylosis" is defined as immobility of a joint. Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). "Ankylosis" is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). "Ankylosis" is stiffening of fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Board has considered whether a separate rating is warranted for neurological impairment. In this case, the evidence of record does not establish that there is neurological impairment associated with the Veteran's lumbar spine disorder. The October 2011 VA examination reflects that there was no radiculopathy or other neurological abnormalities associated with the Veteran's lumbar spine disability. For these reasons, the Board finds that a separate rating for neurological impairment is not warranted. For the foregoing reasons, the Board finds that a preponderance of the evidence is against the appeal for an increased rating higher than 40 percent for thoracolumbar degenerative disc disease, including a separate rating for a neurological disorder. As there is a preponderance of the evidence against the claim for an increased rating in excess of 40 percent, the claim must be denied, and there remains no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Disability Rating Criteria for Rating Knee Disabilities A January 2005 rating decision granted service connection for bilateral recurrent patellar subluxation. A non-compensable (0 percent) rating was assigned each for left and right knee patellar recurrent subluxation from February 2004. A 10 percent rating was assigned for each knee from February 2005. A claim for an increased rating was received in May 2008. During the claim for increased rating, VA granted a 20 percent rating for left and right knee patellar subluxation for the period from October 13, 2009, thus creating a "staged" rating for the distinct rating periods. The Veteran asserts that his knee disabilities have increased in severity. He wrote that he had missed work due to both back and knee disabilities. The Board notes that a separate rating for arthritis of either knee was not assigned in the January 2005 rating decision, as the evidence did not show limitation of motion of either knee to warrant a separate rating at that time. A November 2011 rating decision granted service connection for arthritis with limitation of motion of both knees and assigned separate 10 percent ratings for arthritis with limitation of motion of each knee, effective August 7, 2009. The Veteran has not appealed the November 2011 rating decision, and therefore, the ratings assigned for arthritis and limitation of motion in that decision are not currently before the Board. The November 2011 rating decision granting a separate rating for arthritis rated using 38 C.F.R. § 4.71a, Diagnostic Code 5010, which in turn rates under Diagnostic Code 5003, which provides for a 10 percent disability rating for arthritis that is painful and results in at least noncompensable limitation of motion, even though the degrees of limitation of motion alone would not warrant a 10 percent rating. See also VAOPGCPREC 23-97 (interpreting that separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257) and VAOPGCPREC 09-98 (interpreting that, when x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain). The 10 percent separate rating for arthritis was based on findings and complaints of knee pain and limitations of motion. The 10 percent arthritis rating was also based on consideration of additional limitation of motion due to orthopedic factors indicated by DeLuca v. Brown 8 Vet. App. 202 (1995) (explaining the need for consideration of additional limitation of motion due to factors indicated at 38 C.F.R. §§ 4.40, 4.45, and 4.59). Because such factors of pain and limitation of motion have been explicitly considered and serve as a basis for the 10 percent rating for the service-connected arthritis disabilities of each knee, such factors may not also be used to establish the severity of disability of the separately service-connected subluxation disability ratings under Diagnostic Code 5257 that are now on appeal. To do so would violate the anti-pyramiding provision of 38 C.F.R. § 4.14, which directs that the evaluation of the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether an appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other condition(s). See also Johnson v. Brown, 9 Vet. App. 7 (1996) (holding that 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 codes predicated on limitation of motion). For this reason, factors of pain and limitation of motion of the knee will not be reported or considered in rating the service-connected subluxation disabilities of each knee. The Diagnostic Code relevant to rating the service-connected subluxation disability issue on appeal is DC 5257. DC 5257 provides that a 10 percent rating is assignable for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating is assignable for moderate recurrent subluxation or lateral instability. A 30 percent rating is assignable for severe recurrent subluxation of lateral instability. 38 C.F.R. § 4.71a. Left and Right Knee Patellar Subluxation Ratings prior to October 13, 2009 After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating in excess of 10 percent under DC 5257 for either a left or right patellar recurrent subluxation. Upon VA examination in June 2008, the Veteran reported an increase in left and right patellar subluxation. The Veteran reported grinding and popping of his knees. The Veteran reported instability of both knees. He reported that episodes of dislocation or subluxation occurred less than once per year. The frequency of subluxation reported by the Veteran more nearly approximates slight recurrent subluxation. On physical examination of the right knee in June 2008, the VA examiner noted that there were clicks and snaps of both knees, but no grinding, instability, patellar abnormality, or meniscus abnormality. Although the Veteran reported complaints of instability of both knees, there were no objective findings of instability upon examination. Accordingly, a higher rating is not warranted under DC 5257 based upon instability of either knee. For these reasons, the Board concludes that the weight of the evidence is against the appeal for a higher rating in excess of 10 percent for left and right recurrent patellar subluxation for the period prior to October 13, 2009. As there is a preponderance of the evidence against the claims for increased ratings in excess of 10 percent for left and right recurrent patellar subluxation for this period, the claims must be denied, and there remains no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Left and Right Knee Patellar Subluxation Ratings from October 13, 2009 Upon VA examination in October 2009, the Veteran reported popping and grinding of both knees, giving way, and instability. The Veteran reported episodes of dislocation or subluxation several times a week. Upon physical examination in October 2009, the VA examiner noted findings of crepitus, pain at rest, and grinding, but noted that there was no instability. The VA examiner assessed moderate subluxation and dislocation. A VA outpatient treatment note dated in January 2011 noted subluxation patella on numerous occasions and pain. The Veteran was seen for steroid injections and for a brace to help alleviate symptomatology. Examination revealed that each knee was stable to varus and valgus and Lachman testing. Both knees had a negative McMurray and positive apprehension sign on lateral displacement of the patella. At an October 2011 VA examination, the Veteran reported problems walking up steps and standing. The Veteran reported that he had to sit down during flare-ups due to problems with weight bearing. On physical examination in October 2011, Lachman and posterior drawer tests were normal. Testing for medial-lateral instability was 1+ for the right knee and normal for the left knee. The October 2011 VA examiner indicated that there was a history of recurrent subluxation and dislocation. On the examination report, the VA examiner noted that the severity of recurrent patellar subluxation/ dislocation was "slight." After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating in excess of 20 percent under DC 5257 for either the right or left knee subluxation for the period from October 13, 2009. The evidence of record does not reflect that recurrent subluxation of either knee is more than moderate in severity. The October 2009 VA examination indicated that there was moderate subluxation of the knees. The October 2011 VA examiner characterized recurrent subluxation of the knees as slight. Based upon this evidence, the criteria for a 30 percent rating under DC 5257 are not met or more nearly approximated, as severe recurrent subluxation of either knee is not shown. The evidence does not show severe lateral instability; accordingly, a higher rating is not warranted on that basis. The Board has considered other potentially applicable rating codes. The Board has also considered whether any other diagnostic code would allow for an increased rating for the Veteran's knee disabilities. DC 5258 addresses dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. There is no evidence of dislocation of the meniscus in this case, so this code does not apply. DC 5259, which addresses removal of symptomatic semilunar cartilage, is not applicable. DCs 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. For these reasons, the Board concludes that the weight of the evidence is against the appeal for a higher rating in excess of 20 percent for left and right recurrent patellar subluxation for the period from October 13, 2009. As there is a preponderance of the evidence against the claims for increased ratings in excess of 20 percent for left and right recurrent patellar subluxation, the claims must be denied, and there remains no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds that the schedular rating criteria contemplate the impairment and symptoms of the Veteran's back and knee disabilities. The schedular rating criteria pertaining to the Veteran's back disability provide for ratings based on limitation of motion of the back, including due to pain and other orthopedic factors such as weakness, incoordination, and fatigability, including unfavorable ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. The schedular rating criteria pertaining to the Veteran's back disability also provide for separate ratings for neurological impairment that in this case is shown to be related to the back disability. The schedular rating criteria also provide for an alternative rating based on incapacitating episodes due to intervertebral disc syndrome. The rating criteria pertaining to the service-connected knee disabilities is broad, as it assesses the overall severity of knee impairment, as it considers whether recurrent subluxation is slight, moderate, or severe. Because the schedular rating criteria are adequate to rate the Veteran's back and bilateral knee subluxation disabilities, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER An increased rating in excess of 40 percent for thoracolumbar degenerative disc disease is denied. A rating for left patellar recurrent subluxation, in excess of 10 percent prior to October 13, 2009, and in excess of 20 percent from October 13, 2009, is denied. A rating for right patellar recurrent subluxation, in excess of 10 percent prior to October 13, 2009, and in excess of 20 percent from October 13, 2009, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs