Citation Nr: 1318401 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-43 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for service-connected degenerative arthritis of the cervical spine. 2. Entitlement to a disability rating greater than 10 percent for service-connected degenerative arthritis of the right knee. 3. Entitlement to a disability rating greater than 10 percent for service-connected degenerative arthritis of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1986 to October 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma, which determined that the Veteran's cervical spine and right and left knee disabilities each warranted a 10 percent disability rating, effective as of June 30, 2008. The Veteran expressed disagreement with the assigned disability ratings, and perfected an appeal. During the pendency of the appeal, by rating action dated in May 2011, the Veteran was awarded a separate 10 percent disability rating for laxity of the right knee, effective as of May 10, 2011. Additionally, by rating action dated in April 2012, the disability rating for the Veteran's service-connected degenerative arthritis of the cervical spine was increased to 20 percent, effective as of June 30, 2008, and he was awarded a separate 30 percent disability rating for cervical radiculopathy affecting the left upper extremity, effective as of September 1, 2009. While the Veteran has not expressed disagreement with the separate disability ratings that have been assigned, applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). As such, as the separate ratings are considered part of the increased disability rating claims, the Board will consider whether an even greater rating is warranted. The issues on appeal had previously included entitlement to service connection for a psychiatric disorder. In April 2012, the RO granted service connection for major depressive disorder as secondary to the service-connected degenerative arthritis of the cervical spine. As this represents a grant of the benefit sought on appeal, the issue is no longer before the Board. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held that a claim for a total disability rating based upon individual unemployability (TDIU) is part of an increased disability rating claim when such claim is raised by the record, and that when evidence of unemployability is submitted at the same time that a Veteran is appealing the rating assigned for a disability, a claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. In this case, while the VA examiners in February 2012 indicated that the Veteran's respective service-connected disabilities impact his ability to work, the examination reports also indicate that the Veteran continues to be gainfully employed. He has not claimed that the service-connected disabilities at issue have prevented him from maintaining or obtaining gainful employment, and there is no other evidence to this effect. As such, the question of entitlement to a TDIU is not raised. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. (The issues of entitlement to higher ratings for left and right knee disabilities are the subject of a remand that follows the decision below.) FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the cervical spine is not manifested by limitation of motion to 15 degrees or less or ankylosis of the cervical spine, and he has not had incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks during a 12-month period. 2. Prior to September 1, 2009, there was no evidence of radiculopathy associated with degenerative arthritis of the cervical spine; from September 1, 2009, there is no evidence that the cervical radiculopathy of the left (minor) upper extremity is manifested by severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for degenerative arthritis of the cervical spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a separate disability rating for cervical radiculopathy of the left upper extremity associated with the degenerative arthritis of the cervical spine, prior to September 1, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8513 (2012). 3. The criteria for a separate disability rating greater than 30 percent for cervical radiculopathy of the left upper extremity associated with the degenerative arthritis of the cervical spine, from September 1, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). By letters dated in July 2008 and November 2008 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information he needed to provide, and what information and evidence VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating 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. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above-mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty-to-assist and duty-to-notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the Court has also noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Degenerative Arthritis of the Cervical Spine The Veteran's degenerative arthritis of the cervical spine has been rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242, which sets out the criteria for rating degenerative arthritis of the spine. Under this diagnostic code provision, unless there is intervertebral disc syndrome, the disability is to be rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the 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 disability rating is warranted for forward flexion of the cervical spine 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, reverse lordosis, or abnormal kyphosis. A 30 percent disability rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). Note (5) to 38 C.F.R. § 4.71a provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. A VA examination report dated in August 2008 shows that the Veteran described a 20-year history of symptoms that included stiffness, weakness, and numbness. He indicated that he would experience limited mobility and pain, along with headaches. He denied visual disturbances, fevers, bladder complaints, malaise, bowel complaints, or dizziness. He reported that he would have pain approximately six times monthly, lasting about three days. He described the pain as burning, aching, and sharp, and measuring an eight in severity on a scale of 1 to 10. The pain was elicited by physical activity, stress, and sleeping, and could come by itself. It was relieved by pain medication. He added that the disability did not result in any incapacitation. Functional impairment was described as times of immobility due to pain and stiffness constantly limiting activity. Physical examination of the cervical spine revealed no evidence of radiating pain on movement or muscle spasms. There was cervical tenderness. There was no ankylosis of the cervical spine. Range of motion of the cervical spine was measured to be 45 degrees of flexion, 45 degrees of extension, 45 degrees of right and left lateral flexion, and 80 degrees of right and left rotation. Range of motion of the spine was additionally limited following repetitive motion by pain. It was not additionally limited by fatigue, weakness, lack of endurance and incoordination. Head position and curvature of the spine were normal. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. The diagnosis was compression fracture of C6 with degenerative changes. Various lay statements from the Veteran's spouse, colleagues, and friends were submitted on behalf of his claim for an increased disability rating in November and December 2008. In the letters, the Veteran was described as having experienced neck pain, stiffness, and limitation of motion that, on occasion, would last for weeks. He was noted to have to take significant leave from work because of his symptoms. A private medical record from INTEGRIS Family Care Yukon dated in April 2010 shows that the Veteran was seen, in pertinent part, for reported neck and left upper extremity pain. He described the pain focusing in his neck and arm as a burning and tingling sensation and also with a numbing and achy quality to it. He stated his pain was a constant eight on a scale of 10, and when at its best four on a scale of 10. He described having weakness in his upper extremities. However, he denied any issues with dropping objects. Factors that would increase pain were said to include lifting, standing, coughing and sneezing; and factors that would decrease pain included rest and medication use. He reported left arm swelling, particularly in the hand. He denied any extreme sensitivity to touch on the hand, or change in skin color or pattern. He denied any bowel or bladder dysfunction. He denied any physical therapy, but admitted to chiropractic care. He also reported previous steroid injection in the cervical region. He had not undergone any surgical intervention. Physical examination of the cervical spine revealed that it did not show full range of motion. However, the examiner did not provide any range-of-motion findings. A foraminal compression test was said to have caused pain to radiate to the left arm with head rotated to the left. An axial loading test of the cervical spine provoked neck pain. The cervical spine had a normal appearance and showed no tenderness on palpation of the spinous process. There was no tenderness on palpation of the transverse process, no spasm of the sternocleidomastoid muscle, and no instability. The cervical spine was not evaluated for neurological symptoms. A VA examination report dated in May 2011 shows that the Veteran reported a progressive worsening of cervical pain. He described the pain as constant and intense, and occurring on a daily basis, worse in the morning. The severity on a daily basis was said to be moderate. He denied any incapacitating episodes in the preceding 12 months. He would treat the neck pain with ibuprofen as needed. He would have severe flare-ups of the neck pain one to two times per week that would last for one day. The precipitating event was not known. The flare-ups would be alleviated by relaxing, lying flat on the floor, and taking his usual ibuprofen. He would also have decreased range of motion of the neck during a flare-up. He denied fatigue, spasms, weakness, and decreased motion. He denied any numbness, paresthesia, or weakness of his upper arms or any bowel or bladder incontinence. He walked unaided and did not use a cane, crutches, or a walker. He did not wear a neck brace. He was not unsteady on his feet and did not have a history of falls. He had not had any trauma or injury to the neck. Since discharge, he had not had any hospitalizations or surgeries. Functionally, he denied any problems with activities of daily living. He noted that in his usual occupation, he would have to call and use sick leave when having a more severe flare-up of neck pain. He reported having called in approximately six times over the preceding year because of his neck pain. When driving, he could not drive more than an hour without having an increased neck pain. It was noted that the Veteran was right-hand dominant. Physical examination of the cervical spine revealed a slightly reduced curvature of the cervical spine. The musculature was symmetrical to appearance. There was tenderness of the paraspinal muscles. There was a muscle spasm noted, which was worse on the right trapezius muscle. There was no erythema or edema noted. Range of motion of the cervical spine was measured at 40 degrees of forward flexion, 35 degrees of extension, 40 degrees or left and right lateral flexion, and 70 degrees of left and right lateral rotation. There was no change in function with repetition. The diagnosis was degenerative arthritis of the cervical spine. A VA examination report dated in February 2012 shows that the Veteran reported that his cervical pain had worsened since his last VA examination. He described daily pain, worse in the morning and after activity, that would flare up one to two times weekly and last for two days. He reported having missed approximately 12 days of work over the preceding nine months secondary to the neck condition. He also reported intermittent numbness, tingling, and pain radiating down the left extremity into the finger tips of his left hand. The symptoms would be more intense at times, and he would feel weaker in the left arm. During flare-ups, he would have decreased range of motion and increased pain, and would be unable to go to work when severe. Physical examination of the cervical spine revealed range of motion measured at 35 degrees of forward flexion, 35 degrees of extension, 35 degrees of right lateral flexion, 30 degrees of left lateral flexion, 60 degrees of right lateral rotation, and 55 degrees of left lateral rotation. Objective evidence of pain was said to begin at 25 degrees for forward flexion, 25 degrees for extension, 30 degrees for right lateral flexion, 25 degrees for left lateral flexion, 55 degrees for right lateral rotation, and 50 degrees for left lateral rotation. Following repetitive use testing with three repetition, range of motion measured at 30 degrees of forward flexion, 30 degrees of extension, 30 degrees of right lateral flexion, 25 degrees of left lateral flexion, 55 degrees of right lateral rotation, and 50 degrees of left lateral rotation. Following repetitive use testing, there was also weakened movement, excess fatigability, and pain. There was localized tenderness or pain to palpation, and guarding or muscle spasm of the cervical spine resulting in abnormal spinal contour. Muscle strength was within normal limits, except for some active movement against some resistance of left wrist flexion. There was no muscle atrophy. Reflex examination was within normal limits. Sensory examination of the right upper extremity was within normal limits, however, there was decreased sensation to light touch in the left shoulder area, inner/outer forearm, and hand/fingers. There was no radiculopathy to the right upper extremity. There was mild constant pain; moderate intermittent pain; moderate paresthesias and/or dysesthesias; and moderate numbness of the left upper extremity. The Veteran was said to have a positive Spurling's test involving the C5/C6 nerve roots (upper radicular group), the C7 nerve roots (middle radicular group), and the C8/T1 nerve roots (lower radicular group). The right side was not affected, however, the left side was said to encompass a moderate degree of radiculopathy. There were no other neurologic abnormalities related to a cervical spine condition. The Veteran was said to have intervertebral disc syndrome of the cervical spine, without any incapacitating episodes over the preceding 12 months. There were no associated scars. The impact on his ability to work was described as being limited in those activities that would require lifting with the arms, rapid movements of the cervical spine or functions that required increased physical exertion such as climbing or running. The diagnosis was degenerative joint disease of the cervical spine and cervical radiculopathy. Because there have been no incapacitating episodes, a rating under Diagnostic Code 5243 is not warranted. As noted above, in order to warrant an increased disability rating for the Veteran's service-connected cervical spine disability, the evidence must show forward flexion of the cervical spine of 15 degrees or less; ankylosis of the entire cervical spine; unfavorable ankylosis of entire spine; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks but less than six weeks during the preceding 12 months. In this case, in August 2008, the Veteran's cervical spine had forward flexion of 45 degrees, to include following repetitive motion. In April 2010, the private examiner from the INTEGRIS Family Care Yukon noted that examination did not show full range of motion, however, the examiner did not provide any range-of-motion findings. In May 2011, the cervical spine had forward flexion of 40 degrees, to include following repetitive motion. In February 2012, the cervical spine had forward flexion of 35 degrees, to include 30 degrees following repetitive motion and with pain beginning at 25 degrees. In no examination report of record is it demonstrated that the Veteran had forward flexion limited to 15 degrees so as to warrant a disability rating higher than 20 percent. Additionally, each examination of record specifically indicated that the cervical spine was not manifested by ankylosis, and that the Veteran had not experienced any incapacitating episodes of intervertebral disc syndrome. As such, a disability rating greater than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine is not warranted. In reaching these conclusions, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59 as well as the holdings in DeLuca and Mitchell, regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends his disability is essentially manifested by pain. However, prior to the February 2012 VA examination report, the Veteran did not demonstrate additional limitation of forward flexion following repetitive use. While the February 2012 VA examination report noted that pain on forward flexion began 25 degrees and that following repetitive use forward flexion was limited to 30 degrees, neither was found to equate to motion limited to 15 degrees, which would be required for the next higher disability rating. Additionally, while the February 2012 VA examination report noted weakened movement, excess fatigability, and pain following repetitive use, the Veteran was still able to flex to 30 degrees. As such, the Board finds that the 20 percent disability rating adequately compensates the Veteran for the level of disability resulting from his cervical spine disability under Diagnostic Code 5242. As noted above, in April 2012, the Veteran was awarded a separate 30 percent disability rating for cervical radiculopathy of the left upper extremity associated with the degenerative arthritis of the cervical spine, effective as of September 1, 2009. The 30 percent rating was assigned as a secondary neurological manifestation of the cervical spine disability and was rated under Diagnostic Code 8511 which provides the rating criteria for paralysis of the middle radicular group and, therefore, neuritis and neuralgia of those nerves. However, the February 2012 VA examination report indicates that the Veteran's radiculopathy involves the upper, middle, and lower radicular groups. As such, the radiculopathy associated with the Veteran's cervical spine disability is more appropriately rated under Diagnostic Code 8513 which provides the rating criteria for paralysis of all radicular groups. In rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2012). When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. Under Diagnostic Code 8513, complete paralysis of the nerves is rated at 90 percent for the major arm, and at 80 percent for the minor arm. Disability ratings of 20 percent, 40 percent and 70 percent are assignable for incomplete paralysis which is mild, moderate, or severe in degree, for the major arm, and ratings of 20 percent, 30 percent, and 60 percent, for mild, moderate, or severe incomplete paralysis of the minor arm. 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2012). In August 2008, there was no evidence of radiating pain on movement or muscle spasms; and there were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. In April 2010, the Veteran reported a burning and tingling sensation of the arm with a numbing and achy quality to it, however, the cervical spine was not evaluated for neurological symptoms. In May 2011, the Veteran denied any numbness, paresthesia, or weakness of his upper arms. In February 2012, he reported intermittent numbness, tingling, and pain radiating down the left extremity into the finger tips of his left hand. Sensory examination of the left upper extremity revealed decreased sensation to light touch in the left shoulder area, inner/outer forearm, and hand/fingers. There was also mild constant pain; moderate intermittent pain; moderate paresthesia and/or dysesthesia; and moderate numbness of the left upper extremity, and a positive Spurling's test of the upper, middle, and lower radicular groups. Having considered the evidence above, the Board finds the Veteran's cervical radiculopathy of the left upper extremity to be no more than commensurate with moderate incomplete paralysis. All of the medical evidence of record describes the manifestations as either mild or moderate and there is no medical evidence of record to suggest that the manifestations have been characterized as severe. In light of the foregoing, the Board finds that the Veteran's cervical radiculopathy of the left upper extremity to be productive of no more than a moderate incomplete paralysis of all associated radicular groups, which warrants the currently assigned 30 percent disability rating. As there is no evidence of record prior to September 1, 2009, suggesting that the Veteran had radiculopathy of the left upper extremity, the assignment of separate disability rating prior to that date is not warranted. The Board has considered the lay statements of record, to include those of the Veteran, in support of his claim for a higher disability rating. In arriving at a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his cervical spine disability. In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. See Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Disability ratings are made by the application of a rating schedule which is based on average impairment of earning capacity as determined by the clinical evidence of record. Such competent evidence concerning the nature and extent of the Veteran's cervical spine disability has been provided by the medical personnel who have examined the Veteran during the current claim and who have rendered pertinent opinions in conjunction with the examinations. The medical findings as provided in the examination reports directly address the criteria under which disability due to the cervical spine is rated. Therefore, the Board finds the examination reports to be more probative than the subjective lay evidence of complaints regarding the severity of symptomatology because they provide objective medical evidence of the manifestations of the service-connected disabilities. As noted above, consideration has been given to whether any additional staged ratings under Hart would be warranted. However, there appears to be no identifiable period over the course of this claim that any additional staged rating for the manifestations of the cervical spine disability is warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a disability rating higher than 20 percent degenerative arthritis of the cervical spine, and the claim for a rating higher than 30 percent for radiculopathy of the left upper extremity associated with the degenerative arthritis of the cervical spine, effective as of September 1, 2009. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 53-56. Extra-schedular Consideration Finally, the Board finds that the Veteran's cervical spine disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's cervical spine disability is contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been discussed above, the rating assigned is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER A disability rating greater than 20 percent for service-connected degenerative arthritis of the cervical spine is denied. A separate disability rating for cervical radiculopathy of the left upper extremity associated with the degenerative arthritis of the cervical spine, prior to September 1, 2009, is denied. A separate disability rating greater than 30 percent for cervical radiculopathy of the left upper extremity associated with the degenerative arthritis of the cervical spine, from September 1, 2009, is denied. REMAND The Veteran asserts that his right and left knee disabilities are of greater severity than reflected by the currently assigned disability ratings. Historically, service connection for bilateral patellofemoral syndrome was granted by rating action dated in August 1994, at which time an initial noncompensable disability rating was assigned effective as of October 14, 1992. On June 30, 2008, the RO received the Veteran's claim for an increased disability rating for his service-connected right and left knee disabilities. By rating action dated in September 2008, the RO determined that Veteran's knee disabilities be rated separately, and that the right and left knee disabilities each warranted a 10 percent disability rating, effective as of June 30, 2008. In October 2008, the Veteran underwent right knee surgery, and was awarded a temporary total disability rating based on surgical or other treatment of the right knee necessitating convalescence, from October 16, 2008, to November 30, 2008. In May 2011, he was awarded a separate 10 percent disability rating for laxity of the right knee, effective as of May 10, 2011. Private medical records from INTEGRIS Canadian Valley Regional Hospital dated from October 2008 to November 2008 show that the Veteran underwent a partial medial meniscectomy, abrasion arthroplasty, and synovectomy as a result of a torn medial meniscus of the right knee. The final report showed an impression of oblique tear within the posterior horn and body of the medial meniscus; mild-moderate chondromalacia patella; tinal focal regions of contusion or reactive edema within the subchondral bone of the lateral femoral and tibial condyles; and small knee effusion. The Veteran most recently underwent a VA examination of the knees in February 2012. In evaluating the Veteran, the VA examiner indicated that the Veteran had not had any meniscal conditions or surgical procedures for a meniscal condition. The VA examiner also indicated that the Veteran had never had a meniscectomy, and had no residual signs and/or symptoms due to a meniscectomy. The Board is of the opinion that the findings of the VA examiner are inconsistent with the medical evidence of record as the October and November 2008 records from INTEGRIS Canadian Valley Regional Hospital clearly indicate that the Veteran underwent a partial medial meniscectomy as a result of a torn medial meniscus of the right knee. The above evidence demonstrates that the February 2012 VA examiner's opinion was based on an inaccurate factual premise. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Once VA undertakes to provide a VA examination it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, this matter must be remanded so that the Veteran may be scheduled for an examination that takes into consideration all of the facts of record. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his right and left knee disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran's right and left knees that are not yet of record. All records obtained must be associated with the Veteran's claims file. 2. The AOJ should thereafter schedule the Veteran for a VA examination to ascertain the nature and severity of his service-connected right and left knee disabilities. The relevant evidence in the claims file should be made available to and reviewed by the examiner. All indicated tests should be performed and all findings reported. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion as to the severity of the right and left knee disabilities. The examiner must consider the 2008 history of a right knee partial medial meniscectomy as a result of a torn medial meniscus. The examiner must conduct all necessary testing of the each knee, including range-of-motion studies (measured in degrees for both flexion and extension). The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and these determinations must be expressed in terms of the degree of additional range of motion lost (beyond what is shown clinically) due to such factors. This includes instances when these symptoms "flare-up" or when each knee is used repeatedly over a period of time. These findings and estimates as to the degree of motion lost on account of functional losses should be made with respect to both flexion and extension. The examiner must specify whether the Veteran has any instability in either knee and, if so, the severity thereof (e.g., slight, moderate or severe), and whether there are episodes of locking. The examiner shall provide a description of all residual scars, to include the following: the size of the scar in square inches or square centimeters; whether any scar is superficial (not associated with underlying soft tissue damage); whether any scar is deep (associated with underlying soft tissue damage); whether any scar is unstable (with frequent loss of covering of skin over the scar); whether any scar is well-healed, painful, tender, adherent, and/or ulcerated. If an opinion cannot be rendered in response to these questions, the reason therefore should be explained. The examiner shall also review pertinent aspects of the Veteran's medical and employment history, and comment on the effects of the right and left knee disabilities upon his ordinary activity and the effect, if any, on his current occupational capability. An opinion should be provided concerning the impact of the disabilities on the Veteran's ability to work, to include whether it is productive of severe economic inadaptability. A complete rationale for each opinion expressed should be provided. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 3. The AOJ should review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The AOJ should thereafter readjudicate the Veteran's claims. If a benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs